The Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) regime were introduced by the European Union as a means to assess projects or plans which are likely to have a significant impact on the environment. With the United Kingdom’s withdrawal from the EU, the Government has made it clear that they intend to significantly change how this system operates.
Part 5 of the Levelling Up and Regeneration Bill provides the Secretary of State power to replace EIA and SEA regime (subject to separate Regulations) with a more results-based process called ‘Environmental Outcomes Report’. As with EIA and SEA, ‘EOR’s will only be necessary where the plan or project is likely to have significant impacts on the environment. An EOR will be required to set out:
- The extent to which the proposed relevant consent or proposed relevant plan would, or is likely to, impact on the delivery of specified environmental outcomes
- Any steps proposed to:
- increase the extent to which a specified environmental outcome is delivered
- avoid the effects of a specified environmental outcome not being delivered
- mitigate the effects of a specified environmental outcome not being delivered in so far as they cannot be avoided
- remedy the effects of a specified environmental outcome not being delivered to any extent that they cannot be avoided or mitigated
- compensate for a specified environmental outcome not being delivered to any extent that it cannot be avoided, mitigated or remedied
Future regulations will set more detail as to how any necessary assessments are to be carried out, the information to be included within and the format an EOR should take, and to what extent the EOR is to be taken into account by relevant Authorities. Whilst details on these aspects are relatively sparse, the Government has made it clear that they intend EOR’s to be less formulaic than EIA/SEA Reports and, as the name suggests, more effective at delivering environmental outcomes.
As with the current SEA and EIA regime, consent for relevant projects cannot be given unless (1) an EOR has been prepared, and; (2) it has been used by the competent authority to determine whether, and on what terms, the relevant consent should be given.
As to the projects and plans that will require an EOR, the Explanatory Notes refers to Category 1 developments, which will always require an EOR, and Category 2 developments which will require an EOR where it meets certain criteria. It is anticipated that this will operate in a similar way as Schedule 1 and 2 projects set out by the EIA Regulations, but with more clearly defined criteria. Again, this detail will be set out in future Regulations.
It is noted that Part 5 of the Bill gives the Secretary of State power to amend, repeal or revoke existing environmental assessment legislation. There is a consequential provision repealing the need to carry out environmental assessments by the omission of Section 71a from the Town and Country Planning Act 1990.
Whilst critics of the Government argue that the Bill will result in a weakening of current Regulations, Section 120 of the Bill states that EOR regulations can only be made where the Secretary of State is satisfied that it will not result in environmental law providing less protection than in place at the time the Act is passed. The Regulations may also not contain provisions which are inconsistent with the United Kingdom keeping its international obligations with regards to the environment. Clearly, to what extent this follows through in practice will depend on the details contained within future Regulations.
Levelling-up and Regeneration Bill: planning proposals
Levelling-up and Regeneration Bill: planning proposals: part 2