Last month, the Government published the Levelling Up and Regeneration Bill (the Bill). It contains key provisions which will replace environmental impact assessments and strategic environmental assessments with Environmental Outcome Reports (EORs). EORs represent a switch to an outcomes-based approach allowing the Government to set ‘clear and tangible environmental outcomes which a plan or project is assessed against.’
Will there be changes or is this window dressing?
Much of the detail will come in the regulations but there is still a lot to be gleaned from the draft Bill, its explanatory notes and debate in Parliament on the Bill to date. The Government’s stated intention is that the change certainly won’t lead to any reduction in the overall level of environmental protection. However, what it is meant to do is create more focused (shorter!) assessments with a clear objective in mind of achieving certain environmental outcomes (and trying to reduce some of the mammoth Environmental Impact Assessments (EIAs) of old) opposed to just assessing the significance of effects on environmental receptors as is currently the case.
Those environmental outcomes will be set by the Government with reference to the Government’s 25 –Year Environment Plan.
Many of the familiar concepts of EIAs remain with “category 1” developments (where EORs will be mandatory) and “category 2” developments (where EORs will only be required if certain threshold are reached). There will be a similar hierarchy of mitigating effects, remedying effects and compensating for any environmental outcome not being delivered.
In terms of decision making, the Bill allows the Secretary of State to set the extent to which EORs are taken into account. The Bill’s Explanatory Note states that:
‘While Environmental Outcomes Reports must always be taken into account when prepared, the Secretary of State would have the power to make regulations that increased the weight afforded to an Environmental Outcomes Report. This would, for example, allow the Secretary of State to make regulations specifying that a decision-maker should, in certain circumstances, give increased weight to the findings of an Environmental Outcomes Report when considering whether to grant a consent’.
What are the likely areas of new focus for EORs?
The Bill trails the way for the new regulations to have an increased focus on monitoring the proposed actions to mitigate, remedy and compensate, and consequences if the monitoring shows that the actions are not working. We can expect harsher penalties for failure to deliver on steps proposed to achieve stated environmental outcomes – requirements for operations to cease, further off-setting contributions.
The intention seems to be that EIAs that often collected dust on the shelf post grant of permission will be replaced by reports that remain “live” tools throughout a development’s life ensuring what was promised is delivered. We can expect greater use of technology in models used and updates of those being updated via real time sensors (for example on air quality or water quality nearby) that get reported on in a much more user friendly manner.
Developers of large schemes can expect greater scrutiny of their previous developments and how they performed as an indicator of whether proposed steps to achieve stated outcomes will actually work and/or be sufficient without further mitigation.
Just as with EIAs, alternatives will need to be considered; in that context it’s predicted that the regulations will require carbon impact assessments for the whole life of the development and for those to be compared against alternatives. This is likely to be carefully assessed especially in the context of proposals to demolish and rebuild buildings opposed to refurbishing them.