The provisions of the Bill, considered in Mark’s earlier blog post, state the broad framework of the new procedure. It would work in tandem with regulations and government guidance, which have not been drafted yet. 

Following the publication of a consultation paper on 17 March, questions regarding how the new regime is intended to operate can start to be answered. The consultation also provides an opportunity for interested members of the public to comment on and inform the shape of the new regime.

Concerns with the current regime

The current regime is said to be affected by the following:

1. Inefficiency – assessment is not carried out as early as it could be within the development of a plan or project.
2. Duplication – matters considered elsewhere in the planning system (such as cultural heritage and social and economic matters) are revisited within EIAs, creating unnecessary duplication.
3. Risk aversion – a lack of clarity on the types of project that require assessment, what should be assessed and how the assessment should be conducted encourages a risk averse approach because of the fear of legal challenge. That approach has led to a practice of preparing voluminous EIAs to cover off every issue no matter how tangential, reducing their usefulness.
4. Loss of focus – EIAs include consideration of social and economic benefits, when they should be focussed only upon “critical environmental issues”. 
5. Inadequate use of data – there is no practice of harnessing and re-using the data collected within EIAs for other purposes.

An outcomes-based approach

The new regime will require assessment against “high-level” outcomes that reflect the Government’s ambitions towards the environment. Outcomes will be set by secondary legislation, with a supporting suite of “indicators” for each outcome stated in Government guidance. 

The annex provides an example of what an outcome might look like: “An increase in the abundance of protected species and supporting habitat”. A “project level indicator” for this outcome is “Changes in the abundance and/or distribution of protected species and supporting habitat in the relevant geography, agreed study area or immediate locality”.

Indicators will measure the expected change resulting from the plan or project against an outcome, compared against baseline conditions, using technical data. Methodologies for measuring indicators will be developed in consultation with specialist working groups and prescribed within Government guidance wherever possible.

There could be differences between the choice of outcomes enshrined in the different assessment regimes, but all will cover certain core outcomes, such as biodiversity. In that regard, the current division between different regulations for different areas of environmental assessment and under the remit of different Government departments will be maintained. For example, DLUHC will continue to be responsible for the environmental assessment of plans and programmes, town and country planning and infrastructure planning, DEFRA will continue to be responsible for the environmental assessment of agriculture and other matters and DFT will be responsible for the environmental assessment of transport infrastructure. 

There will also be a division of responsibility amongst Government departments for monitoring and reporting overall progress of their topic area against stated outcomes.

What EORs will cover

EORs will follow a standardised approach, following guidelines and templates. The intention is that EORs will be shorter and simpler than EIAs, thereby reducing the costs associated with environmental assessment, whilst also speeding up the planning system. There will be a requirement for technical reports to appear as separate self-contained documents, rather than appendices, as happens currently and which is considered to inhibit their accessibility. 

The extent of analysis will be proportionate to the likely relevance of each outcome to the project (the example given is that for an underwater construction activity the analysis of air quality could be limited to a desktop-based approach). It will be informed and narrowed by any assessment already undertaken at a strategic level. For example, for a development allocated in a local plan that was subject to a plan level environmental assessment, the analysis will be limited to the delivery of the required mitigation, and any localised, residual effects.

EORs must demonstrate that the consideration of reasonable alternatives has been integral to the development of the project, by providing a summary record of the decisions made on alternatives within its iterative design. This will prevent a situation where reasonable alternatives are considered only after a development has been designed and at a stage when they are too late to impact its design.

When an EOR is required

The objective is to be prescriptive about the projects that require an EOR. A division will be maintained between projects that always require assessment and those which may require assessment, depending upon the application of screening criteria.  

For the category of developments that may require screening for determining whether an EOR is required (“Category 2”), the Government proposes replacing the current screening criteria (size and qualitative thresholds for different types of project) with criteria focussed upon proximity, or a defined impact pathway, to a sensitive receptor. 

Mitigation

Monitoring and mitigation will be given greater teeth through the proposals. Firstly, the mitigation hierarchy (avoidance, mitigation, compensation) will be enshrined within legislation. 

Second, there will be a requirement to demonstrate how mitigation was built into the design and development of a project. 
Third, monitoring must be undertaken at the implementation stage of whether the effects of a development on the environment are as predicted, and whether agreed mitigation is working as intended and is in place within agreed timeframes. 

Where an outcome is not as expected, remediation will be “pursued and enforced”, underpinned by a new set of civil and criminal sanctions. 

Unlocking data

There is no current system for re-using the data collected for an EIA. Furthermore, data may not be publicly available, or it may be available online but only within an EIA that has been uploaded in a format where each page is a scanned image. It is not possible to search the text within scanned images using freely available software, such as Adobe Acrobat, making it in impractical to extract data from EIAs uploaded in that format when they are very large (which they invariably are). This means that potentially useful data is not widely available or frequently re-used.

It is suggested that by unlocking the potential for the re-use of data the Government can make the assessment process simpler, faster and more effective. Data collected in previous assessments can be used to establish a baseline, or trend, to inform future assessments. 

Local authorities will be required – using the data harnessed from EORs – to provide an annual consolidated account of the delivery of their plans against environmental outcomes. The reporting will be similar, and will work in conjunction with, the monitoring local authorities should already be undertaking on the performance of their local plans.

Data will also allow the Government to review the effectiveness of its guidance and whether the regime as a whole is performing adequately.

Next steps for EORs

The Levelling Up and Regeneration Bill is under consideration in the House of Lords at the time of writing. The expectation is that the Bill will garner sufficient support to pass into law in due course. 

The consultation on the proposed framework for EORs will close on 9 June 2023. Following this, regulations will be drafted by the Government departments responsible for each assessment regime, informed by views gathered during this consultation. The draft regulations will then be published for a further period of consultation.

It may not be until 2024 or later that the new regulations for EORs are in force. There will then be a transition period before the new regulations take effect. It would seem from the consultation paper that the Government will set a transition period of between six months to two years. 

In the meantime, our team at FTB will continue to keep you updated on the EOR regime as it develops. Watch this space!

Horatio Waller is a barrister at Francis Taylor Building specialising in environmental, planning and public law.