Shift from EAs to environmental outcomes reports considered in DLUHC paper

The Department for Levelling Up, Housing, and Communities said the move “will simplify and streamline the assessment process” to make it more effective in supporting the delivering of the UK’s environmental commitments. The proposals are set out in a new consultation paper issued alongside a separate technical consultation on the introduction of a new infrastructure levy to help fund affordable housing and local infrastructure. The infrastructure levy is to replace section 106 contributions for most developments.

Currently, a raft of EA obligations is spread across 18 separate pieces of legislation in England, with further sister legislation in force in Scotland, Wales and Northern Ireland. Their purpose is to detail the likely effects of proposed plans or development on the environment and inform decisions by planning authorities, but producing EAs has become increasingly burdensome for developers amidst the growing importance of environmental factors in plan-making and decision-making and the associated increased risk of successful legal challenges being brought against plans and projects due to deficiencies with EAs.

In this context, the government is intent on replacing the existing EA framework, which derives from EU regulation, with a new “outcomes-based approach” to environmental assessment.

The shift to the new environmental outcomes reports regime is provided for in The Levelling Up and Regeneration Bill that is currently before the UK parliament. The Bill provides the government with powers to draft new EOR regulations that require EORs to be prepared to support applications for development consent. Those reports would centre around defined outcomes relating to environmental protection in the UK that the Secretary of State has specified, using powers under the Bill to do so.

The government has promised to consult on draft outcomes in due course. According to its proposals, developers can expect outcomes across environmental assessment regimes to at least reflect issues of biodiversity; air quality; landscape and seascape; geodiversity, soil and sediment; noise and vibration; water; waste; and cultural heritage and archaeology. An example biodiversity outcome it cited was ‘an increase in the abundance of protected species and supporting habitat’.

Other factors that currently play into existing EAs, such as socio-economic, transport, major accidents and disasters, are not listed, however the government said developers can expect further “regime specific outcomes” to emerge. It also said it plans to consider how it “can best use EORs to achieve health related outcomes” and suggested that carbon reduction and other issues of climate change will be integrated into environmental outcomes and addressed elsewhere in policy.

It said: “We are reviewing how EORs could be used effectively to help support efforts to reduce the carbon impact of development… We will also consider how EORs could be used effectively to support efforts to adapt to the effects of climate change, given the broad range of adaptation needs across regimes ranging from agriculture to offshore oil and gas.” 

Richard Griffiths, who specialises in planning law at Pinsent Masons, welcomed the consultation on EOR’s and the government’s drive to reform the environmental assessment process.

Griffiths called for the government to continue to work with practitioners, stakeholders and developers on the proposed new outcomes-focused process to ensure that the system delivers efficiencies and does not place undue burdens or risks on developers. This, he said, would give them the certainty they need for promoting schemes under the 1990 Town and Country Planning Act and Nationally Significant Infrastructure Projects under the 2008 Planning Act. He said work should include on ensuring that it is clear how overarching topics such as climate change and health will work alongside the proposed list of national outcomes.

The government has said that it will establish a “working group of users and experts” to harness best practice. Griffiths said this will be critical when looking at the detail of the proposed new powers in the Bill and upcoming regulations and guidance, particularly in the context of projects in the pipeline and the lead in times and any future transitional arrangements.  

Whether outcomes are met or not will be determined by reference to defined “indicators”. The government said these will be set out in guidance and “will predominantly be data sets based on underlying technical work and analysis, such as physical surveys and population counts”. It said, though, that “professional judgment” will be able to be used in cases where outcomes are not “conducive to a quantitative metric”.

Under the proposals, different approaches to reporting could be developed across the various environmental assessment regimes. However, the government said it will “test an approach where applicants report on the performance of projects or plans against all relevant outcomes on a proportionate basis” under both the town and country planning and nationally significant infrastructure projects (NSIPs) environmental assessment regimes.

Much of the detail of the proposed EORs regime is likely to follow in subsequent consultation papers. However, the government has outlined its intention to “simplify the process of deciding when an [environmental] assessment is required”, strengthen the role of mitigation in the context of environmental assessments, and “introduce a more robust approach to how the delivery of outcomes is monitored”.

Planning law expert Alexis Coleman of Pinsent Masons said: “One aspect of the proposed changes involves removing the current ‘scoping’ stage of EAs. The benefit of the current scoping system is that consultees are required to respond and, whilst not effective in scoping many effects out, a developer at least has some certainty that if they comply with the scoping opinion, their application should not be found to be deficient for not having assessed an effect, at the time of submitting the application.”

“One can see developers wanting similar sort of comfort that the relevant stakeholders agree with how they’ve exercised their discretion in taking a ‘proportionate’ approach to assessing against outcomes and indicators. In that context, a developer would be well advised to essentially undertake their own informal scoping exercise against the outcomes and indicators, albeit with no onus on those stakeholders to actually respond,” she said.

“There will therefore need to be a careful balancing act between the outcomes and indicators for projects being overly prescriptive and prescriptive enough that developers have confidence in how they’ve assessed against them, and what they’ve chosen not to assess, in order to move away from the current risk averse approach we often see. Having sets of outcomes and indicators tailored to the relevant regime and type of project could certainly assist with this,” Coleman said.  

To further support the shift to EORs, the government intends to ensure more environmental data is standardised and made available for future use.

Dr Sue Chadwick of Pinsent Masons, a strategic and digital planning adviser, believes the process of assessing the environmental impacts of proposed new developments can be automated, and the assessment itself “transformed into a real-time platform of information flows, analytics and predictive modelling”. She said the government’s plans for delivering a new EORs framework reflect the “data not documents” approach that it endorsed in its August 2020 planning white paper.

“The intention is to rely on the digital planning clauses of the Levelling Up and Regeneration Bill, which include a power for the government to impose data standards,” said Chadwick. “The question that raises is why the government isn’t already using an established tool such as the online planning guidance to recommend use of existing standards, such as the government function property data standard, so that we can all be ready for the new approach when it is introduced?”