Environmental Outcome Reports: the replacement of EU assessment regimes

Further to Part 6 of the Levelling Up and Regeneration Bill 2023 (the “Levelling Up Bill”), the UK Government has recently consulted setting out its proposals for a new method of environmental assessment. It is proposed that Environmental Outcome Reports will replace the existing Environmental Impact Assessment and Strategic Environmental Assessment regimes, derived from the EU, to ensure that a greater focus is placed on national environmental targets, such as climate change and Net Zero. The consultation ran from 17 March to 9 June 2023 and responses are currently being reviewed before the outcome is published.

The need for reform

Whilst the Levelling Up Bill commits to preventing a regression in environmental law, engagement with key stakeholders has nonetheless identified significant shortcomings in the current system. Issues identified include a large volume of impenetrable documentation, the financial and time constraints created by the threat of legal challenge and the duplication of work required by overlapping regimes. 

The consultation notes a lack of focus under the current system, as assessing environmental issues alongside considerations such as housing and economic benefits often results in environmental concerns being outweighed in the planning balance. By contrast, the EOR system will concentrate on environmental impacts and limit other arguments in favour of the scheme to the planning statement.

Cross-regime approach

Whilst the consultation focused on EORs as a general concept, it is a means of assessment which will be applied to a number of different consenting regimes, including but not limited to Nationally Significant Infrastructure projects (“NSIPs”) being consented by way of a Development Consent Order (“DCO”) and schemes being promoted under the Town and Country Planning Act 1990 as amended (“TCPA Applications”). 

The consultation document outlined the need to adopt a consistent approach across Government bodies however the affected consenting regimes sit under the competence of a number of different departments such as DEFRA and DfT as well as the Department for Levelling Up, Housing and Communities. Each of these departments shall become the “Responsible Owner” of their respective EOR processes, and will be required to produce their own guidance and Regulations for implementation which may affect the level of consistency in practice. 

Policy Objectives

The EOR system is proposed to operate on an “outcomes-based” approach, focussed on streamlining the assessment process and achieving the national environmental targets set out in the UK’s Environmental Improvement Plan (the “EIP”), published in January this year. Proposed outcomes include:

• For communities: making it easier for members of the public to navigate the system and access information necessary to understand the impact of development on their local environment. Greater emphasis will also be placed on instilling public confidence by adopting a stronger approach to minimising environmental effects via mitigation;
• For developers: providing greater certainty as to what will be required of a developer at an earlier stage of the development process. This is intended to avoid unnecessary work/costs and to ensure that the developer can focus on incorporating environmental considerations, as opposed to fearing legal challenge;
• For decision makers: providing clearer information to help in the making of more robust, confident decisions. This will be aided by greater precision in assessment reports, a stronger approach to mitigation and greater clarity as to the link between individual projects and national priorities;
• For environmentalinterests: establishing a clear link between national priorities and individual developments, whilst increased monitoring will ensure that developments are delivering to their expected standard. If not, this will allow for remedial action to be taken more quickly;
• For policy makers, planning and environmental professionals: the development of a more robust evidence base, aided by more efficient data usage, to provide a basis for the development of future policy.

Whilst all outcomes will be refined taking into account consultation responses, the key themes emerging are the need for greater clarity and concision, ensuring efficient management of data and information, so that it may be used in the future, and a greater emphasis being placed on mitigation.

The Development of Outcomes

In order to be effective, outcomes should be developed in accordance with the following principles to:

• Make progress towards the achievement of goals set out in the EIP and other environmental legislation;
• Be measurable using indicators (as described further below);
• Draw from the knowledge of environmental experts and third party groups operating in the sector;
• Have a designated Responsible Owner (as above), who will monitor progress towards achievement;
• Be kept up to date via regular reviews;
• Refrain from duplicating matters more effectively addressed elsewhere.

These principles should be applied in order to set appropriate targets relating to areas identified in the EIP (such as biodiversity, air quality and flood risk) as those in which the greatest impact can be made.

Demonstrating how the Outcomes are met – Indicators

In order to assess the likely performance of a project against the relevant outcomes, the consultation proposed a mechanism of nationally-set “indicators.” 

As far as possible, these indicators will be based on existing data, such as surveys and population counts, which should then be adjusted to reflect the scale of development. It is however acknowledged that for some outcomes this will not be an appropriate means of assessment, and in these cases evidence shall be drawn from qualitative sources such as expert appraisals, succinctly summarised for subsequent application. This may be the case for issues such as climate change benefit from a broad definition under the Levelling Up Bill. 

As with the development of outcomes, indicators will be set in line with pre-agreed principles such as the requirement that they are:

• “Clearly/directly relevant to one or more priority outcomes;
• Non-duplicative;
• Proportionate;
• Drawn from existing data sets;
• Measurable at the correct scale;
• Evidence based;
• Replicable;
• Owned and managed; and
• Supported by clear methodology and guidance.”

Reporting on Outcomes

One of the major pitfalls identified in the current system is that developers feel they must provide detail on all potential aspects of an environmental assessment, or risk legal challenge. This generates a high volume of complex documentation which cumbersome for the developer to produce and the determining authority and public to digest. 

As such, for NSIP and TCPA Applications the consultation proposes to pilot a method whereby applicants are required to report on all aspects of the assessment, but only on a proportionate basis. This means that less relevant outcomes will not need to be assessed in depth, although it is likely that most will require at least desktop data in order to scope them out. 

What an EOR will include

The UK Government has identified the prevalence of lengthy and complex documents as a particular issue hampering the accessibility of the planning system. The proposals seek to ensure that documents make clear the environmental effect of a development, in a way which is digestible to the wider public. 

The consultation further identified the need for EOR assessments to place greater focus on assessing viable alternatives and considering the mitigation hierarchy. As stated in the proposed outcomes, one aim of the EOR system is to ensure that these measures can be considered at an earlier date, making sure that they can be incorporated more effectively and at less cost to the developer. In requiring a record of decision making on alternatives, this ensures that these considerations are incorporated at an early stage in the decision making process, before it is too late for them to be applied. It is however recognised that only viable alternatives should be assessed. 

The consultation provides a proposed list of the documentation which would be required in respect of a TCPA application:

• Short introduction (referencing project details contained in the accompanying planning statement);
• Short, high level summary setting out the consideration of alternatives and mitigation hierarchy early in development;
• An assessment of the development’s contribution towards achieving an outcome as supported by indicators, including:
• Residual environmental effects outlined in the technical work – pinpointing relevant conclusions in the technical work;
• Current baseline and relevant trend data (identified as above);
• Commentary on levels of uncertainty around that data/indicator set;
• Proposed mitigation;
• Monitoring proposals;
• Summary of the cumulative effects of the proposal as a whole, in comparison to conclusions of any strategic/plan level assessment.

When an EOR will be required

With regard to the requirement for an EOR assessment, developments may fall into one of two categories:

• Category 1 – an assessment will be required in all circumstances;
• Category 2 – an assessment will be required if criteria set out in the relevant Regulations have been met.

As yet, there is little to no detail about what types of development can be expected to fall into each category, other than to note that “sensitive areas” such as protected landscapes will always require an assessment to at least be considered. Further consultation is proposed to take place regarding the designation of developments, with the Government having advised that a comprehensive list will be provided for all those falling within Category 1. 

Monitoring

The consultation document emphasises the need for an increased focus on monitoring once developments have commenced. This is to ensure that, particularly in areas where scientific evidence is limited, data from existing projects can be gathered and assessed in order to determine the efficacy of mitigation measures. Further to provision for effective data management (as below), this seeks to ensure that data from existing projects can be used to inform future assessments and consenting matters.

Mitigation

Under section 139 of the Levelling Up Bill, the Government is empowered to require that developers take a more robust approach towards environmental mitigation. This is in order to achieve the central aim of ensuring that all possible steps are taken to limit damage to the environment (mitigation) or avoid damage all together (avoidance). As such, the first Regulations to be developed following the consultation are likely to contain the mitigation hierarchy. 

Under the mitigation hierarchy, both mitigation and avoidance are preferable to the third option of compensation. The efficacy of compensation measures are called into question under the consultation document, as it is not always certain that these measures will provide sufficient benefit to make up for the harm caused. 

Data Management

In addition to streamlining the assessment process, the consultation proposals aim to ensure greater digitalisation of planning. This is designed to increase accessibility and ensure that valuable data is retained for future use, in both policy and decision making. 

The consultation identified a significant issue around data loss, highlighting that much of the information presented in applications is currently lost due to a lack of compatibility with software and ineffective data capture. Proposals therefore suggest that more effective mechanisms will be introduced to ensure that data collected through monitoring is retained and re-used for the purposes of future decision making. Likewise, standardisation has been proposed as a means of ensuring that application data is fit for reuse subject to copyright restrictions.

How can Burges Salmon help?

Our dedicated planning & CPO team have extensive expertise advising upon environmental assessments, having successfully promoted numerous high profile NSIP and TCPA Applications in sectors ranging from renewable energy to road infrastructure. 

Should you have any queries relating to the current or proposed system for assessment or other aspects of the consenting process, please do not hesitate to contact Julian Boswall or Cathryn Tracey.