988: Government’s intentions revealed as it consults on Environmental Impact Assessment replacement
This week’s entry looks at the consultation on Environmental Outcomes Reports, the government’s proposed replacement for environmental impact assessments.
On 17 March 2023, the government (the Department for Levelling Up, Housing and Communities rather than Environment, Food, and Rural Affairs) launched a consultation on Environmental Outcomes Reports, the proposed UK-derived replacement for environmental impact assessment (EIA). The consultation document can be found here, and the consultation closes on 9 June 2023.
I set out what I think are the more significant points arising from the document. On 30 March 2023, I am hosting a webinar to go through it all in more detail with an opportunity to ask questions (acknowledging that many things are not yet known), please sign up here if you are interested.
The consultation document is in a slightly odd order (screening after EOR contents, for example), so I have rearranged it below. Although EORs will apply to the 18 different consenting regimes listed in clause 152 of the bill, the document says it focuses on the Town and Country Planning Act 1990 and Planning Act 2008 regimes. It says ‘each environmental assessment regime will be able to use the powers in the Bill to develop their own tailored approach to assessment,’ but I’m not yet clear how a ‘regime’ can do that, and it also runs counter to notions of consistency.
The new concept is that instead of measuring the effect of a project (or plan) against a fixed baseline, the effects should be measured according to their impacts on a series of targets for improving the environment (the outcomes). It will apply to both plans and projects, effectively replacing both Strategic Environmental Assessment and EIA. Supposedly, more assessment at the plan level will mean less at the project level (see paragraph 5.1), but I think that is somewhat optimistic.
Annex A of the document gives a suggested example of an outcome, namely that there shall be an increase in the abundance of (what will presumably be specified) protected species and supporting habitat.
If your project is going to decrease any of the species concerned, or hamper the achievement of the increase if a numerical figure and target date are given, then you’re going to have to do something about it if you want to get consent or plan approval.
The outcomes will be even more embedded than National Policy Statements – they will be consulted upon, subject to parliamentary scrutiny and then passed as statutory instruments, a privilege not afforded to NPSs (4.3 and 4.4). Each one will have an ‘owner’, an organisation responsible for monitoring progress, likely to be Natural England in many cases and certainly in the case of the example (4.7).
The current process of screening – whether a project is significant enough to have to undergo EIA – is the subject of much debate and litigation, and the new regime seeks to address this. As currently, there will be mandatory – ‘category 1’ – consents and criteria-based – ‘category 2’ – consents. The criteria will aim to be more clear-cut – I’m imagining something like ‘the red-line boundary is within 2km of a UK National Site’, rather than the more subjective ‘is expected to have a significant effect on the environment’ (6.7).
The current process of scoping – what should be included in an Environmental Statement (ES) – is getting out of hand size and effort-wise, just like the ESs themselves. The consultation suggests a bold approach of effectively ‘everything is scoped in’ (4.23).
Doing things earlier
One principle that runs through the proposals is to do things earlier and record this; in particular, this applies to the consideration of alternatives and the development of mitigation. Although the sentiment is a good one, I’m not sure how realistic that is. Projects do not in reality follow a logical course from ‘here is a need / problem that should be addressed’, to the perfect choice of project location and impact minimisation.
The Environmental Outcomes Report format
The suggested format of a report is set out (5.7), as follows: at the start, a short introduction and a high level summary of how reasonable alternatives and the mitigation hierarchy were considered (early); at the end, a summary of the contribution of the cumulative effects of the project as a whole on outcomes (I think that should be at the beginning).
In between, for each outcome, are the residual effects on the environment, the current baseline and trends, commentary on uncertainty, proposed mitigation, and monitoring.
Note that the government is proposing amendments to the Levelling-up and Regeneration Bill to drop the ‘remedying’ stage of the mitigation hierarchy that is in clause 139(4)(b), and ‘increasing’ is moved outside the hierarchy so it just has the more conventional ‘avoiding’, ‘mitigating’ and ‘compensating’. I had been wondering what ‘remedying’ was and it turns out nobody else knew either.
Mitigation, monitoring and reporting
The document encourages the use of ‘adaptive management’ (aka dynamic mitigation or adaptive planning) where mitigation is adjusted (usually downward) as greater certainty of effects becomes known. Of course, the maximum mitigation that might be needed will have to be shown to be available when the decision is made (7.8).
More will have to be laid out as to what happens if the mitigation doesn’t work or the effects of the project are worse than predicted, which brings us to monitoring. There is a little shout-out to minerals, waste, and offshore wind for being good at monitoring (8.3). Monitoring is expressed in terms of the local planning authority, rather than the developer gathering data and reporting to the planning authority.
What could be of great benefit from monitoring is that what mitigation works and what doesn’t would be made public for the benefit of future projects (8.5). I would like to see more on that.
Finally, there is a section on ‘reporting’, which is more at the strategic level as to whether outcomes are being achieved in each local authority area (10.2).
There is not much on the timing of introduction, although there is a question on how long the transition period should be from regulations being laid to the regime coming into force: six months, a year, or two years. It implies that different consenting regimes could have different transitional periods.
There you have it – a revolution or an evolution? Time will tell.
The Planning Inspectorate has reissued Advice Note 16 on changes after acceptance, which can be found here.
The main news is that the rather confusing and unhelpful distinction between non-material and material changes has been dropped (they still apply post-decision, though).
Challenges to the Sizewell C and Manston DCOs were both in the High Court this week; the former was a ‘rolled-up’ permission and full hearing; the latter was just a permission hearing, and about half the grounds of challenge can go to a full hearing.
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