946: Goodbye EIA – what else is in the Levelling Up and Regeneration Bill for infrastructure?

Today’s entry reports on the publication of the Levelling Up and Regeneration Bill.

Levelling Up and Regeneration Bill

I’m sure that like us, you are still digesting the Bill, but here are a few things that have stood out.

First, in the materials published alongside the Bill, the government has announced that there will be a ‘technical consultation on the quality standards that Nationally Significant Infrastructure Projects will be required to meet to be considered for fast-track consenting and associated regulatory and guidance changes to improve the performance of the NSIP regime’. Confusingly, in the section entitled ‘in the Bill’, the government also confirms that they will ‘bring forward legislation to improve the Nationally Significant Infrastructure Projects regime.’

In terms of what is actually in the Bill, this may be the beginning of the end for Environmental Impact Assessments and Strategic Environmental Assessments. Clause 116 of the Bill introduces a power to specify ‘outcomes relating to environmental protection’. Clause 117 in turn allows the regulations made by the Secretary of State to require an Environmental Outcomes Report (‘EOR’) to be produced in connection with ‘relevant consents’. Clause 117(4) in particular defines what an EOR is and sets out a hierarchy in mitigating, ‘remedying’ and compensating – the EOR must assess:

• (iii) so far as the effects of a specified environmental outcome not being delivered to any extent cannot be avoided, mitigating those effects;
• (iv) so far as the effects of a specified environmental outcome not being delivered to any extent cannot be avoided or mitigated, remedying those effects; and
• (v) so far as the effects of a specified environmental outcome not being delivered to any extent cannot be avoided, mitigated or remedied, compensating for the specified environmental outcome not being delivered.

Interestingly, the EOR must also ‘assess… steps’ and steps includes reasonable alternatives (see clause 117(5)). Clause 127 introduces powers for the Secretary of State to replace the existing EIA / HRA regime such that the EOR replaces or is treated as complying with that regime. Before making these EOR regulations, the Secretary of State is required to carry out some form of consultation: in relation to the repeal or modification of existing environmental legislation, they must consult the public. In respect of other EOR regulations, they will be required to consult public authorities.

This is very significant not least because the ‘relevant consents’ which these provisions apply to is to be set out in secondary legislation, though one would assume DCO projects will almost certainly be caught.

Second, there are some compulsory acquisition legislation changes which are relevant because most DCOs incorporate that legislation. Clause 141 makes provision relating to website notices (intended to make ‘information more accessible online, raise awareness and increase engagement in the CPO process’); clause 142 changes the process for confirming compulsory purchases, including the ‘conditional confirmation’ of CPOs; and clause 147 allows for later vesting dates where agreed with landowners.

Third, is the introduction of the concept of ‘planning data’ (defined broadly as information which is sent to or used by planning authorities under relevant enactments or for the purposes of planning or development). Again the Secretary of State has the power to make regulations which specify that approved data standards (published by the Secretary of State) are complied with by ‘relevant planning authorities’ (which in this context includes an Examining Authority under the Planning Act 2008, possibly the first time that has happened).

The provisions go onto explain that ‘planning authorities, by published notice, [may] require a person to provide them with planning data’. Looking at the examples in the explanatory note, this seems to be intended to create more consistency in how planning information is presented to the public (see Examples 1 and 2 on page 75 to 76 here).

Fourth, there are amendments to section 38 of the Planning and Compulsory Purchase Act 2004. That provision currently deals with how local planning applications should be decided in accordance development plans (e.g., local plans) unless ‘material considerations indicate otherwise’. The Bill amends this provision in England so that (i) planning applications should accord with development plans but also ‘national development management policies’; (ii) applications will have to be decided in accordance with development plans and those national policies unless material considerations ‘strongly’ indicate otherwise.

National development management policies (NDMPs) are defined in the Bill as ‘a policy (however expressed) of the Secretary of State in relation to the development or use of land in England, or any part of England, which the Secretary of State by direction designates as a national development management policy’. Clearly, this is likely to cover the NPPF – but will the government also designate NPSs as NDMPs?

I think this might be a good idea given there are occasionally significant local planning applications which have a clear overlap with DCO projects, or local plans which should (must?) consider national policy statements. For an example of what I’m talking about see the Inspector’s comments on the examination of the London Plan in connection with the Airports NPS (see paragraph 577 to 589 here) – though note the relevant policy (T8) made it through because at the time of the adoption, the ANPS was quashed.

Finally, and just because I’ve been involved in this aspect, there are provisions relating to ‘street votes’ – clause 96 in particular allows for the implementation of a system which would enable residents of a street to vote on a street plan which would constitute planning permission. It is not, as some press reports suggest, a vote on every single extension carried out by a street, but similar to a more granular neighbourhood plan. The intention is very clearly to implement Policy Exchange’s Strong Suburbs report. This provision is the one that has made the headlines, but they don’t say that a planning application promoting non-street vote development would still be available even if a street vote was unsuccessful (or indeed, successful!). You can read what I think about the proposals here.

Public Order Bill and TWAO Consultation and M25 Junction 10

We previously commented on new infrastructure related criminal offences they were proposed in, then stripped out of, in the Police, Crime and Sentencing Bill (now Act). They have now appeared in the Public Order Bill – they are mostly identical so please do read our previous blog for a summary.

You can read our response to the Department for Transport’s consultation on reform of TWAOs for non-physical guided transport modes here.

Finally, the M25 Junction 10 DCO has been granted; a further DCO decision (M25 Junction 28) is also expected next week and both will be the subject of next week’s blog.