Outcomes not effects

Key elements of the new regime include:

• Instead of assessing the likely significant effects of a development, projects will have to report against the achievement of specified “outcomes”, which will be fixed in secondary legislation and will relate to topics such as biodiversity, air quality and cultural heritage.
• The extent to which development contributes to the delivery of each outcome will be measured by a set of indicators, set nationally. These will measure the expected change resulting from the development against the baseline conditions. It is clear that there will need to be significant technical and practical input when setting the indicators to ensure they are appropriate and robust.
• Applicants must report on relevant outcomes on a proportionate basis, with minimal consideration of the outcomes where full assessment is not required. There is no detail on what this will look like, nor how it will be determined which outcomes this should apply to.
• The core EOR must be accessible and navigable. It should summarise underlying technical work and assess the contribution of the development towards achieving the outcomes. Technical reports supporting the EOR will be separate standalone documents.
• To determine whether an EOR is required, it needs be determined whether projects are in category 1, category 2, or neither. Category 1 developments will always require assessment. Category 2 developments will require assessment if the criteria established in regulations are met. The government has not yet made available its proposed parameters for the categories, or the relevant criteria.
• There will be stronger focus on monitoring than under the current regime, to ensure mitigation measures are delivering, with a requirement for remedial action if they are not.

It is clear from the consultation that further thought needs to be given to how socio-economic and health implications of development will be considered. While these are an established part of the EIA process, the government seems unconvinced that EORs are the right place for these matters.

Brave new world?

One of the most striking features of the consultation is just how much critical detail is still missing. Yes, this is a consultation paper, and it is great the government is seeking views on how to achieve its ambitions, but in many cases the approach taken is to ask consultees how to go about delivering an outcomes based system rather than seeking views on an already thought-through process.

As many pointed out in the context of the Bill overall, there are also elements which feel remarkably familiar. We may, for example, be doing away with schedule 1 and schedule 2 development under the EIA regime, but categories 1 and 2 of the proposed EOR system have startling similarities with their predecessors.

There are certainly some real positives here though. Many would agree that environmental statements, reporting on EIAs, are often unwieldly and seemingly impenetrable. Communities cannot be persuaded by weight of paper alone that a development will safeguard the surrounding environment, so efforts to focus on making conclusions clearer are a good thing.

However, the assessment of both the existing environmental position and the implications of a given development is a complex process. It is not yet clear how the extensive assessment work currently required to underpin conclusions will be reduced. If EORs are substantially shorter than ESs, but are accompanied by a raft of documents, instead of being self-contained like the latter, is this really significant progress?

There is a lot of emphasis on “risk aversion” – the tendency to cover topics in excessive detail, or even assess in the first place, simply to minimise the risk of judicial review, not because there is any real environmental benefit in doing so. Reducing assessment for assessment’s sake would not only free up local planning authority time, but also make it easier for applicants to highlight – and communities to review – the most important issues. But this will only work if all parties are satisfied that the judgments around when not to assess something are robust. We simply don’t currently have the detail to know how likely this is.

More robust monitoring of mitigation will be an added burden on an industry already having responsibilities layered on it. But the value of this is undeniable, not only in safeguarding the environment, but in shifting the familiar narrative about developers shirking responsibilities. This provides a perfect opportunity to showcase the great efforts of the industry to minimise the negative environmental impacts of their developments. There will, though, need to be careful thought around issues of causality and responsibility where there are multiple developments impacting on a certain receptor at the same time. And let’s not get into the implications for LPA resources.

Inching closer, but…

The ambition here is clear. And it is hard to argue with the government’s aims in this sphere – everyone wants a clear, accessible, robust system to ensure appropriate assessment and mitigation of environmental impacts. However, with such a multitude of key details missing, it is impossible to be certain at this stage that the reforms really will deliver. There remains a real risk that EOR is, in part at least, EIA by another name.

Rest assured that, once missing details do start to emerge, Hogan Lovells will ensure you are kept fully up to date.  

The consultation closes on 9 June 2023. Responses can be made at: https:// www.gov.uk/government/consultations/ environmental-outcomes-reports-a-newapproach-to-environmental-assessment/ environmental-outcomes-report-a-newapproach-to-environmental-assessment

A previous version of this article appeared in EG on 11 April 2023.

Authored by Hannah Quarterman.