Closed consultation

Post Implementation Review: Town and Country Planning (Environmental Impact Assessment) Regulations 2017

Published 17 March 2023

Applies to England

Title: Town and Country Planning (Environmental Impact Assessment) Regulations 2017

PIR No: n/a

Original IA/RPC No: n/a

Lead department or agency: DLUHC

Contact for enquiries: Kim Harding

Post Implementation Review

Date: 21 May 2022

Type of regulation: EU

Type of review: Statutory

Date measure came into force: 16 May 2017

Recommendation: Replace

RPC Opinion: n/a

Background

Environmental Impact Assessment (EIA) is an information gathering tool used to inform decisions on development applications. Decision-makers must take this information into account when deciding whether a development project should be granted permission. EIA is required for large development projects, that are likely to have a significant effect on the environment.

The Department for Levelling Up, Housing and Communities is responsible for two sets of EIA regulations:

• the Town and Country Planning (TCPA) EIA Regulations 2017, and
• the Infrastructure Planning EIA Regulations 2017.

Under the current EIA regulations, we are required to conduct a post-implementation review (PIR) every five years to understand their effect on business. These regulations form part of the transposition of the EU Environmental Impact Directive 85/337/EEC into domestic law. The European Union (Withdrawal) Act 2018 then retained these provisions at the end of the transition period.

Following the UK’s withdrawal from the European Union, the UK Government has decided to replace the EU system with a domestic framework for environmental assessment. Due to the repeal of the European Communities Act 1972, the government needs to secure powers in primary legislation to repeal and replace the EU-derived systems. The Levelling Up and Regeneration Bill currently before Parliament is seeking to establish a framework for a new, more effective and streamlined system of environmental assessment to be known as Environmental Outcomes Reports. The details of the new system will be developed as part of a process of user-centred design and delivered through subsequent secondary legislation.

Given the intention to develop a domestic framework, the UK Government has sought to use this review to support the wider consideration of how environmental assessment can be delivered in a more effective and proportionate manner – including consideration of the effect of EIA on businesses.

Policy Objectives

The TCPA EIA Regulations 2017 and the Infrastructure Planning EIA Regulations 2017 sought to transpose the EU EIA Directives in a way that lightened administrative burdens on business without weakening environmental safeguards. The regulations introduced modifications to the EIA process namely:

• expansion of the topics covered;
• clarification that only significant effects of a project need to be considered in the environmental statement;
• confirmation developers may provide a description of project features envisaged to avoid adverse environmental effects at screening stage
• binding scoping opinions
• introduction of monitoring considerations.

In addition, it introduced a new requirement for EIAs to be produced by a ‘competent expert’. Developers must ensure EIAs are prepared by competent experts and the planning authority must also ensure it has sufficient expertise to review the EIA.

This was intended to give shorter, more focused environmental statements which would reduce overall costs of preparing EIAs.

Evidence

In the period following the 2017 regulations, contrary to the intentions of the regulations, there is still evidence of high costs and significant administrative burden associated with conducting an environmental assessment under the TCPA EIA regime, with a resulting impact on businesses.

Research conducted in 2020 by The Digital EIA Project found an average environmental statement for a 500-home development cost £150,000-£250,000; took 8-18 months to complete; and ran to 4,350 pages. A Contracts Finder database review currently suggests a range from £150,000 for a standard environmental statement and had an example of £1,000,000 for production of a scoping report for Phase 1 of a new railway.

The government has been engaging with users of the current TCPA and infrastructure planning environmental assessment regimes. Feedback from this research suggests an increase in the use of consultants in the EIA process by developers and local planning authorities (LPAs) as they do not feel confident being the ‘competent expert’ that the regulations require to carry out, and review, an EIA, even when this has been carried out historically.

This results in extended time periods for preparing EIA applications, increased costs and delays in the processing of EIA applications by authorities as they procure external support, all adding to the administrative burden of EIAs to business. An example from the Contracts Finder database shows £2.5m allocated for a 3-year EIA review contract by a London planning authority.

Research also suggests that fear of legal challenge is the predominant force driving assessment practice at all levels. Fear of legal challenge was suggested as the reason for the voluminous, cumbersome, and overly technical reports – these being an attempt not to omit any matter that could be the subject of challenge at a later date. This risk averse approach is likely to be contributing to the high costs and administrative burden associated with EIAs in the town and country planning system.

Process in EU member states has also been reviewed.

Description of Recommendation

As the UK is no longer part of the EU, the UK government wishes to use the development of the domestic framework of Environmental Outcomes Reports to address the outstanding issues with the current system of environmental assessment.

There is opportunity to reduce the administrative burden and delays and costs associated with producing an EIA. The Levelling Up and Regeneration Bill provides a framework for the new system of Environmental Outcomes Reports that would allow the government to put in place more streamlined, proportionate, and targeted assessment. The new system will introduce an efficient process that secures high standards of environmental outcomes, tailored to the UK context.

Secondary legislation will enable Environmental Outcomes Reports to be shorter and simpler with greater transparency over the environmental effects of development. Increased certainty and clearer requirements will provide confidence to business that decisions are less likely to be challenged through the courts. Guidelines and templates will be developed to move away from having a prescriptive process detailed in regulations, which should reduce opportunities for legal challenge and reduce the cost burden of risk averse assessment procedures.

The Levelling Up and Regeneration Bill provides powers to set out in regulations what plans and projects require environmental assessment and will reduce the number of borderline cases subject to legal challenge which results from unclear criteria. These measures will seek to reduce the number of uncertainties which can encourage legal challenge and secure an associated reduction in costs and delays. This aligns with our target to deliver an improved system for protecting our environment.

Sign-off for Post Implementation Review: Minister

I have read the PIR and I am satisfied that it represents a fair and proportionate assessment of the impact of the measure.

Signed: ​Rachel Maclean

Date: ​13/02/2023 ​