I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.
This is going to be a fundamental change to our plan-making and decision-making process.
We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.
By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.
The “non-regression” duty set out in clause 142(1) is an important protection:
“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”
The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:
• risk aversion
• loss of focus
• issues with data
Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:
“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.
(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).
I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:
“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.
– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.
– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.
– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).
– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.
– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.
– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).
– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.
– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”
The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:
• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include
• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
• the current baseline and relevant trend data, similarly identified
• commentary on levels of uncertainty for that data or indicator set
• proposed mitigation, and
• monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.
Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:
• air quality
• landscape and seascape
• geodiversity, soil and sediment
• noise and vibration
• cultural heritage and archaeology
The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.
The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.
Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.
Simon Ricketts, 25 March 2023
Personal views, et cetera