This week the UK Levelling Up and Regeneration Bill (LURB) completed the Committee stages in the House of Lords. Amongst other things, the Committee has been considering the provisions that will create Environmental Outcomes Reports (EORs).
In summary, EORs will replace across the UK the Environmental Impact Assessment requirements that lead to the production of compendious Environmental Statements for all applications for consents or approval of various plans and projects, for example planning permission, development consent, local plans etc.
EORs are to be written reports identifying (i) the impact of a project or plan on specific environmental outcomes and (ii) the steps proposed for the purposes of avoiding, mitigating, remedying or compensating for the non-delivery of an outcome. The open question has been just how different will the new EOR regime be to the existing EIA regime?
The problem has been that LURB lacks any real detail. Most of the meat will be set out in 'EOR Regulations', yet to be seen. Concerns regarding the 'skeleton' nature of LURB were raised by the House of Lords Delegated Powers and Regulatory Reform Committee in its 24th report. That Committee scrutinises the suitability of and extent to which powers set out in a Bill are to be delegated to Ministers. The Committee warned:
"In enacting Part 6 [of the Bill] Parliament will have set no policy framework for assessing the environmental impact of proposals over as wide a range of activities as it is possible to imagine. This would enable successive Ministers to implement regimes of greatly different character and effect without the need for further primary legislation. In our report, “Democracy Denied?”, we set out our view that skeleton legislation is rarely justified, and we do not consider that the Department have provided adequate justification in this case…. Accordingly, we consider that the delegated powers conferred by Part 6 are inappropriate in creating skeleton legislation."
So, the problem with the lack of detail in LURB is twofold: (i) we're not sure what the EOR regime will look like from day one; and (ii) there is no constraint on the EOR regime changing fundamentally where differing Ministers decide to take very different approaches.
That said, the new regime may in the end not be very different to the current EIA regime. LURB includes a provision setting out a principle of non-regression – what is currently clause 142 of LURB requires the EOR Regulations not to result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law provided at the time LURB is passed.
Further, during the House of Commons stages of LURB, the Minister committed that: (i) all plans and projects assessed in the current EIA system will continued to be assessed; (ii) that outcomes will cover the same topics that are assessed currently; and (iii) an environmental baseline will remain part of the process of demonstrating how a plan or project supports the delivery of outcomes. All in all, it begins to sound like the end result will be rather similar to EIA.
- What will EORs cover – Outcomes?
The EOR Regulations will specify outcomes relating to environmental protection, which is defined as covering:
• protection of the natural environment, cultural heritage and the landscape from the effects of human activity;
• protection of people from the effects of human activity on the natural environment, cultural heritage and the landscape;
• maintenance, restoration or enhancement of the natural environment, cultural heritage or the landscape;
• monitoring, assessing, considering, advising or reporting on anything in the above 3 bullets.
Following the House of Commons stages, the Government has also now produced a consultation document on EORs. Although that does not provide great detail of what the EOR Regulations will contain (there are no draft Regulations), it does give slightly more information on what it is intended EORs will cover, for example some of the topics in which outcomes will be set.
Did the House of Lords Bill Committee stages give us much more detail? Well, Baroness Bloomfield, Lords Whip, merely confirmed that the environmental outcomes will be developed after consultation with the public and stakeholders, will be developed "across government and with key stakeholders" and "will cover a range of environmental issues. In addition to the commitments in the 25-year environment plan, other strategies will be considered – for example, the clean air strategy, the UK marine strategy and the Government's wider environmental targets". The 25-year environment plan referred to was adopted by the Government in 2018 and sets out 10 'goals' and 6 key areas for action. Notably the goals include mitigating and adapting to climate change and a key area for action included is connecting people with the environment to improve health and well-being.
The consultation document on EORs for its part states that outcomes should:
- drive the achievement of statutory environmental targets and the Environment Improvement Plan
- be measurable using indicators at the correct scale
- be designed using the knowledge and experience of sector groups and environmental experts
- have an organisation responsible for monitoring overall progress of specific outcomes i.e., a responsible ‘owner’
- be reviewed on a regular basis to ensure they remain relevant
- not duplicate matters more effectively addressed through policy
The consultation asks whether respondents support these principles for guiding the development of outcomes.
It is clear from the consultation that there will be some outcomes that are applicable to all consenting regimes (and, by definition, to consents for any type of development). They are in relation to:
- air quality
- landscape and seascape
- geodiversity, soil and sediment
- noise and vibration
- cultural heritage and archaeology
It is not immediately clear that this list picks up, for example, some of the goals and key areas for action in the environment plan to which Baroness Bloomfield referred, particularly those referenced above. Further, the Government has steadfastly resisted amendments that would have added climate change to the list of items of 'environmental protection' for which outcomes are to be specified. Climate change also does not feature as part of the cross-consenting outcomes listed above.
The consultation seeks to explain this on the basis that climate change is an 'umbrella term' referring to both mitigation (reducing the causes of climate change) and adaptation (adjusting to the effects of climate change) and that "climate change is a complex network of interconnecting considerations." The consultation asserts that climate change is not always measurable in itself. However, this reasoning is unconvincing – although aspects of climate change are cross-cutting and occasionally nebulous, the question of greenhouse gas emissions is a specific one, which is very measurable, unlikely to be picked up in itself under the other specific outcomes listed above, and which could easily be the subject of a specific outcome. Inclusion of such an outcome would allow Government to demonstrate relatively easily, that regard has been had to the requirements of the Climate Change Act 2008 and reduce the risk of challenge on that aspect.
The consultation suggests that specific consenting regimes will have other specific additional outcomes relevant to their subject matter. Presumably, those outcomes will be (a) in areas additional to the above areas and (b) supplemental outcomes in the same areas. EIAs presently consider socio-economic matters, transport impacts and, since 2017, major accidents / disasters, but the tone of Government suggests that they do not want such matters considered as part of EORs – instead they are to be considered as part of the wider 'planning balance' of the consent in question. That more purist approach is arguably better, avoiding some of the duplication and confusion in the decision-making to date.
However, leaving aside the topic areas in which they will be set, what the outcomes will actually look like is quite open. The consultation states that they will be 'high level' and the Minster of State has described them as being "user-friendly, simply setting out environmental priorities". The only example we are given in the consultation, which is in relation to biodiversity, reflects that very high-level approach: "Outcome: An increase in the abundance of protected species and supporting habitat". As such, perhaps an equally detailed greenhouse gas emissions outcome would be "Outcome: A decrease in greenhouse gas emissions", if the Government were minded to included climate gas emissions as a topic…
Perhaps the simplicity of such a high-level approach is attractive, but it remains to be seen how practitioners and the courts will deal with questions of materiality of failure to deliver an outcome? That is to say how much of a failure to deliver an outcome is one that must be mitigated, remedied or compensated for? Will we see a return to the familiar EIA considerations of 'significance'?
In order to demonstrate how outcomes are met, the consultation explains that a series of 'indicators' are to be used – they are to be developed through consultation and will only ever by set out in guidance, not included in the EOR Regulations themselves. The consultation is rather confusing about the derivation of the indicators - it is proposed to use a national indicator set (i.e. data set) based on existing indicators so far as possible but then the consultation also explains that the indicators will "be of a scale relative to the geography of an area…a site specific level for specific developments." The example indicators set out in relation to the example outcome of biodiversity do not greatly assist with better comprehension. They break down 2 indicators as follows:
"Strategic level indicator: Changes in the status of the protected species and supporting habitat across the geographic area."
"Project level indicator: Changes in the abundance and / or distribution of protected species and supporting habitat in the relevant geography, agreed study area or immediate locality."
No definition of 'geographic area' is given – it is not clear if that is national or something smaller; if the former, can national data sets be used to indicate changes in abundance on a study area basis, save for general trend information?
- Improving baselines
With EIA, it is well understood that one considers the impact of the scheme. So, if a scheme has an negative impact on a certain aspect, for example air quality, that is recorded as a negative impact notwithstanding that may be against a wider trend of improvement in air quality (perhaps because of local air quality initiatives or technology changes). With an outcome based approach it is less clear – if the outcome set is simply to improve air quality and the indicators look simply at change in the relevant geography / agreed study area, the wider trend may cancel out the negative impact of the scheme. As such, a negative impact from a scheme may not then be recorded as having an impact on the outcome. It would not result in the non-delivery of the outcome (even if it may slow the rate of improvement). It will be important to see how the guidance deals with this type of situation in determining the relevant indicators and how they are deployed.
The consultation demonstrates that Government has taken a dim view of screening and scoping. The consultation indicates that the scoping process will be jettisoned and instead schemes will be tested "against all relevant outcomes on a proportionate basis". We don’t know whether one will be able to ask the consenting authority what is and what is not proportionate, much like the scoping process…it may be advisable to do so, and to include in that an informal consultation of relevant third parties.
However, this approach appears to overlook the fact that in our experience many applicants find the scoping stage a useful way to limit unnecessary work and cost and ensure input from relevant third parties (given their formal role in the scoping process). There is a risk that now more areas of consideration will be involved, possibly unnecessarily, something that the consultation appears to recognise: "This would include a minimal assessment of the outcome for those circumstances where a full assessment is not required, for example an assessment of an underwater construction activity (once operational) on air quality. It will be rare that outcomes are not relevant at all as most will require a degree of desktop analysis to be ‘scoped out’ – similar to current practice during the preparation of a scoping report."
LURB provides that the EOR Regulations may include provision "treating anything done, or omitted to be done, under existing environmental assessment legislation or the Habitats Regulations as satisfying or failing to satisfy a requirement imposed by or under [LURB]" – the exact wording of that provision in the EOR Regulations (once the drafts come forward) will be very important. Already certain schemes suffer delay and cost where subsidiary or secondary consents are caught by existing EIA regulations and the relevant authority is not certain whether or not the EIA carried out for the original consent may be relied upon due to its age / intervening change (both regulatory and physically). Those problems could be greatly exacerbated between two regimes that may be materially different. On a related point, the consultation does seek feedback on the length of time for the transition – i.e. how soon the switch over to EORs will happen – there is a clear interaction between that question and the way in which the EOR Regulations deal with schemes currently in the pipeline and the position of secondary / subsidiary consents.
- Data and digitisation
A final point to note is the clear focus in the consultation on seeking to ensure better and more consistent data, particularly data to provide a baseline. It says that "Reforms will ensure that data collected through monitoring current assessments can be re-used to provide the baseline or trend data to help inform future assessments. It will also inform the relevant authorities report on performance against outcomes, and input into Government reviews of guidance and the performance of the regime…. Users will be able to use certain data (subject to the copyright of that data) so they can readily access it and use it to inform the development of the policy, plan or project as well as carry out the assessment in an efficient way."
The exact detail of the reforms is not clear, but it is understood that this ties in with the wider powers under LURB to make further regulations in relation to 'planning data', which includes data provided for the purposes of EORs. The proposals in relation to planning data merit a whole separate consideration.