Environment Outcome Reporting (EOR) – a new name but not necessarily all that new
Like many of the reforms in the Bill, the majority of the proposed changes to environmental assessment requirements will be set out in secondary legislation. We are left relying on the limited detail in the draft Bill, and on the commentary in the explanatory notes and associated policy paper. The government’s aspiration is to "set ambitious goals to improve our natural environment, and tackle climate change" and go further than the commitments included in the Environment Act 2021.
The ultimate objective is the replacement of the existing (and partly EU-derived) regimes for Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA). These will be replaced with a "clearer and simpler process where relevant plans and projects (including Nationally Significant Infrastructure Projects) are assessed against tangible environmental outcomes set by government, rather than Brussels". How will this happen in practice?
The Bill enables secondary EOR regulations to be prepared that will allow the government to:
• Confirm new “specified environmental outcomes” associated with environmental protection against which “relevant” plans and projects would need to be assessed. The outcomes will be set against the government’s current 25-year Environment Plan (and any new or updated plans). Environmental protection will cover the effects of human activity on the natural environment, cultural heritage and landscape, as well as the protection of people from those activities. It also extends to issues relating to maintenance, restoration and enhancement of the environment;
• Require Environment Outcome Reports to be provided for relevant projects or plans (the criteria for which will be set out in the regulations), so that these are taken into account by the relevant decision-makers when determining whether to grant the consent or adopt the plan. They will also set out specific requirements such as required content and who can prepare the reports;
• Clarify the way in which EOR will interact with the existing EIA and SEA regimes;
• Provide how the specified environmental outcomes in an EOR would be assessed and monitored (including allowing for changes to this over time and for compensation for non-delivery); and
• Establish clear enforcement powers in respect of EOR requirements, including powers of entry and inspection.
A firm commitment in the Bill is that the EOR regulations must not result in a regression in the current overall level of environmental protection, and cannot be inconsistent with the implementation of any international obligations binding the UK.
Many of the suggested elements of this new EOR regime feel similar to the current EIA/SEA arrangements. The two classes of relevant plans/proposals set against specified thresholds feel remarkably like Schedule 1 and Schedule 2 development. Failure to comply will continue to be a bar to securing planning permission in relevant cases. But one of the key differences will be government setting ‘specified environmental outcomes’ against which proposals would be assessed. This is in contrast to assessment being based on the significance of effects on all relevant environmental receptors, which is currently the case. Does this suggest that some harm might be found to be acceptable where the effect is not attributable to what is contained in the specified environmental outcomes list?
Other points requiring further clarification include whether the requirement for projects to “increase the extent to which a specified environmental outcome is delivered” is tied to the harm otherwise caused by the project. There is a risk, as drafted, that excess mitigation could be required.
Whether the changes can create greater certainty and simplicity is yet to be seen. Also, will EORs be any less effort to produce or review, and will the pitfalls which befell EIA over the years be avoided? Based on the stated ambitions of the Bill, the industry should scrutinise the detail in the draft regulations, when published, to ensure the final arrangements are reasonable and workable.
Heritage Protection – levelling-up protection for assets
For specified assets, changes to the Town and Country Planning Act 1990 will impose a new statutory obligation on decision-makers to ‘have special regard to the desirability of preserving or enhancing the asset or its setting’. The ‘special regard’ test already exists for listed buildings and conservation areas and the change will extend this to scheduled ancient monuments, registered parks and gardens and other land listed as being of special historic interest such as battlefield sites, protected wreck sites and World Heritage Sites.
The special regard test in the Planning (Listed Buildings and Conservation Areas) Act 1990 for listed buildings is also expanded from ‘preserving’ to ‘preserving or enhancing’, which aligns it with the proposed changes above and also the existing test in respect of conservation areas.
This technically means a change in approach which will be more onerous in assessing impacts on certain heritage assets. However, given the sensitivities in this area and the predominance of challenges lodged on heritage assessment grounds, the introduction of uniformity is to be welcomed and should lead to better reasoned and more robust decisions from local authorities.
Temporary Stop Notices
The Bill introduces a new temporary stop notice for local authorities where it appears unauthorised works are being undertaken to a listed building. This would require all specified works to cease for a maximum of 56 days from the date of the notice. Contravention of the notice will be an offence subject to limited defences, however local authorities will be susceptible to compensation claims from owners where the alleged actions are found not to contravene listed building controls. This means, as with a number of other notices that can trigger compensation, we can expect a general reluctance by authorities to issue a temporary stop notice unless the concerns are very clear and obvious.
Urgent Works and Building Preservation Notices
The Bill seeks to apply provisions in England which are currently only applicable in Wales. These enable a local authority to execute urgent works to buildings and recover the costs, even where a building is occupied or in use. This is subject to complying with the relevant notice period and providing that the works would not otherwise interfere unreasonably with use as an occupied residential building.
The Bill also removes any entitlement for compensation following the issue of a Building Preservation Notice (BPN). A BPN may be issued against unlisted buildings where the authority considers them to potentially merit being listed and where there is a danger of demolition or alterations taking place. The effect of a BPN is to trigger a listing application and to prevent any such works from taking place for six months unless listed building consent is obtained. Under existing legislation, anyone with an interest in the building can claim compensation for losses arising from the BPN where the building is not then listed. In removing this compensation, we can expect to see greater use of BPNs, but the threat of such actions may increase applications by developers to obtain certificates of immunity from listing. In either case, this is likely to cause knock-on delays and uncertainty for developers and more pressure on an already resource-stretched Historic England.
And one last heritage change – Historic Environment Records
Tucked in towards the end of the Bill is the proposal to impose a statutory duty on local authorities to take reasonable steps to obtain and maintain an up-to-date Historic Environment Record for their areas. It also allows further regulations to provide for specific information storage requirements, and the possibility to impose charges for advising users and for providing copy documents. This is a welcome step as it should increase the level of information available on local heritage assets, but yet again this will place an uncertain, and as yet unfunded, burden on local authorities to ensure it is delivered.
Coming soon… the best of the rest
Our final instalment will look at the changes to compulsory purchase powers and the best of the rest in the Bill, including the push for digitalisation of the planning system.
Authored by Robert Gowing.
