by Adrian Salt
If you thought that environmental assessment (EA) was a quasi-technical report on environmental impacts that is submitted with your planning application, you would be wrong. EA, as DOE Circular 15/88 points out, is a process or procedure in which the “environmental statement” forms only a part. Distracted by recent discussion on which projects do or do not need EA, the development industry has overlooked the quiet planning revolution ushered in by this initiative.
The July legislation, spawned by EC Directive No 85/337, is going to result in a fundamental shift in the way that major developments in the UK evolve. Contrary to current opinion that EAs will lead to further delays and extra costs, I believe the new legislation will eventually result in better, more sensitive developments, quicker and more rational planning decisions and, ultimately, savings in cost and time for the developer. This contention is based on the view that secrecy, suspicion, conflict and confrontation — the hallmarks of the system to date — will be supplanted by openness, consultation and consensus.
The springboard for this change is in paragraph 12 of Circular 15/88, in which EA is described as “the whole process leading to a planning decision … the process will involve consideration of environmental information from a number of sources — from the developer, from statutory consultees and from third parties as well”. The onus is on the developer to gather this information and present it in an “environmental statement” which is then submitted in conjunction with the planning application. The application will not be determined until the environmental statement is lodged.
The inquiry pantomime
The usual way in which most important development proposals evolve, and decisions about them are made, is based on the assumption that they will be decided on appeal or after being called in. Developers prepare for the inevitable local inquiry even before the scheme is on the drawing board: a strategy that focuses on confrontation almost ensures it will occur.
The local inquiry is analogous to a tug-of-war contest — the developers and their professional experts pulling one end of the rope, and the local planning authority (LPA) and opposition groups, with their experts, pulling the other. Orchestrating the efforts and stratagems of each team are the opposing counsels, with the media as cheerleaders. The planning inspector, as umpire, officiates. Let us face it, this must be one of the silliest and most inefficient methods of reaching a decision.
Even the recent changes to the inquiries procedures (see Estates Gazette, May 7 1988 pp 20-21) do not reduce the confrontational nature of local inquiries. As described in Circular 10/88, the new procedures seek only to improve the speed and efficiency of inquiries. The requirement for the exchange of full particulars of the case that a party proposes to put forward is designed only to prevent “surprise tactics” being used. That is progress of a kind I suppose. The pre-inquiry meetings now required are “to identify clearly the main issues with which the inquiry is likely to be concerned”, ie an agreement on the rules of the contest.
Do we really believe that confrontation is the best way to decide planning issues? What happened to discussion, compromise and consensus? Is it such an outrageous idea that everyone with a vested interest in a development should be persuaded to pull in the same direction to produce a better development?
Change of strategy
In fact, without it being realised by most LPAs or developers, the new EA legislation imposes a procedure that makes consensus the best strategy to pursue for everyone involved. Returning to the analogy of the tug-of-war, instead of the developer digging in his heels in an attempt to defend his scheme, his best strategy is just to let go of the rope (or more accurately, not to pick it up in the first place).
The key aspect of the new legislation that effectively dilutes the opportunity for confrontation and conflict is that consultation with interested parties, including the LPA, is obligatory and should take place before submission of the planning application. The responses to this consultation must form part of the environmental statement.
Initiating the assessment process at an early stage, as is recommended, puts paid to any idea of keeping a proposed scheme secret (in the hope perhaps that amenity groups or the LPA might not have time to mobilise a coherent opposition?). Now obliged to declare his intentions to a much wider public, the developer has everything to gain by getting all the various interested parties involved and sympathetic right at the start, perhaps even before a site has been chosen. Communication and liaison become crucial parts of the process. Instead of presenting a scheme as a fait accompli (a course of action guaranteed to raise hackles) the developer should only present the bones of a scheme as a potential opportunity, and invite suggestions as to how to flesh it out. This will provoke antagonism only from the most obdurate objectors. Identifying and isolating those objectors is the first step in neutralising them.
Developers’ priorities
Turning the whole procedure on its head in this way has the effect of switching the developer’s priorities. Instead of a strategy that reserves all the effort for fighting the local inquiry, the developer is now better advised to try to get planning permission without having to go to appeal. His objective should be to win round the LPA and interest groups to the proposed scheme. Ideally, by the time the planning application with its environmental statement is submitted, all issues regarding the proposed development will have been raised and discussed with interested parties. Contentious issues would have been identified and designed out or ameliorated. With consensus achieved, planning approval would follow on the basis that there are no objections. The time it takes to get to this stage depends on the complexity of the scheme and the sensitivity of the site but is still likely to be less than that taken to go down the usual design/appeal/decision path. It is conjecture to say that this new approach will actually reduce overall costs, but there must be clear benefits in the time saved and in the reduced risk of the work being abortive.
In reality, unanimous approval will not occur on every project. However, as the new procedure will highlight only the genuine points of contention, the planning decision will at least be based on the real issues. Even if the application is refused, the background to the reasons for refusal will have already been identified and the ensuing inquiry will need only to focus on those specific issues. This will cut the duration and cost of the inquiry, and even the time to get the decision.
How will this very different approach be adopted by developers? And how will the LPA and amenity groups react to being included in the development process?
Developers’ reactions
As regards developers’ reactions to the new process, some indication can perhaps be gleaned from the experience of the UK’s oil and gas extractive industries. Since 1985 such industries have had to prepare an impact assessment for development proposals on sensitive sites. Their response initially was to provide sketchy scientific reports. There was no consistency and precious little public consultation — the concept of compromise with interest groups was anathema. This attitude changed as they realised they could help their own case by getting to the public first and blunting public opposition. Some, like Shell, even mounted national advertising campaigns to project their “caring attitude towards the environment”. No doubt this image helped them when it came to talking objectors round to their schemes.
In fact, environmental statements are commonly produced by most of the large extractive industries in support of their planning applications. One impression from their experience is that opposition to a development proposal tends to be inversely proportional to the amount of public knowledge circulating about that proposal, ie the less that is known, the stronger the opposition, and vice versa.
A useful technique employed by these industries is to include site selection in the consultation process. Evaluating a number of sites can benefit the developer in two ways. First, and fairly obviously, if the developer does not yet own a site, then looking at alternatives (assuming there are various landowners) lessens the chances of the developer being “over a barrel” when it comes to acquisition.
Second, potential opposition can be largely placated by putting the ball in their court by asking: “We are looking at six(?) sites for our development, which of them do you consider the least sensitive?” While it is easy to justify the rejection of one site, as usually happens at present, it would be stretching credibility to maintain that all the sites are equally unsuitable. Experience shows that interest groups are likely to concentrate on protecting the most sensitive sites.
Even if none is considered wholly acceptable, at least one site would surface as being less unacceptable than the others. This is a better response than the knee-jerk reaction of “not here” that developers invariably get from LPAs and/or local pressure groups.
The LPAs’ reactions
As regards the reaction of the LPAs to this change of strategy from confrontation to consensus, this can perhaps be assessed by reflecting on the mineral planning authorities (MPA). Compared with LPAs (sometimes the same district council, but different officers), the majority of MPAs tend to take a much more co-operative and positive attitude to proposals, suggesting amelioration measures, reporting back on committee members’ views etc. Similarly, the attitude of amenity groups to the extractive industries, once it is realised that there is a genuine desire to achieve an acceptable solution, is generally less combative than with other major developers. When both groups appreciate each other’s objectives and points of view, there is much less mutual suspicion and more willingness to bridge the gap between their differences.
The new EA process, however, is more farreaching than even the extractive industries are used to. In addition to the need to consult interested parties, the issues that must be covered in the assessment are now specified. Furthermore, and a unique feature of this legislation, is the need for the developer to provide a summary, in non-technical language, of the principal technical and other findings. One cannot now bury the crucial findings in a welter of technical reports.
Recommended management structure
How then should the developer tackle the challenge of EA? Who should he turn to for advice? To answer this, one must first unravel the EA process. There are two distinct strands. First, the technical one involving preliminary project planning, outline design, site selection, detailed design, and prediction and evaluation of impacts from that design.
Running in parallel with the technical side is the second strand — the public consultation exercise. This involves discussion with environmental interests, local amenity groups and politicians. The objective is to explain and inform, to exchange information, and to listen to comments. The technical/design process and the consultation process are obviously interdependent.
Experience by the extractive industries shows that two key experts are needed to ensure a successful EA — a technical team leader (TTL), who controls the design issues and looks objectively at all the impacts of the proposed development, and, for want of a better term, a “public liaison expert” (PLE), who runs the consultation “campaign”. Unfortunately, the TTL and PLE cannot be the same person. For one thing, it is important for the credibility of the TTL that he/she can maintain an objective stance — involvement in the public liaison side might be taken as tainting that objectivity. Another thing, both are usually full-time roles.
The ideal interaction between the TTL and the PLE works like this — the TTL feeds the PLE with data about the project and the site. The PLE uses this data, as is felt appropriate, to inform and generate discussion with the various interest groups. Reactions gathered from the discussions are fed back by the PLE to the TTL who looks for ways to implement alterations or additions to the scheme to counter the adverse comments. The revised and improved proposal is then given to the PLE who passes it on to the public who in turn comment on it. This reiterative process continues until the PLE and TTL are satisfied that no more progress can be made. That is the time to finalise the environmental statement and submit the planning application.
Selecting your EA team
The diagram shows the recommended links between the developer’s team the EA team, and the lines of communication that should be formed with consultees and the public. In choosing the EA team, the developer must obviously pay special attention to the selection of the TTL and the PLE.
The technical team leader must have an intimate knowledge of the planning system, a clear idea of the developer’s needs and objectives and, above all, be conversant with all the skills likely to be included in the technical team, from architect to ecologist, and from engineer to sociologist. This role can be competently handled by that Jack-of-all-trades, the town planner, now more often described as a development planner. A planner with a design background is probably the best choice.
Selecting the public liaison expert is much more difficult. Although the role would seem to suit someone with a public relations background, there is a distinct difference between handling the media, the forte of the PR-trained person, and the handling of consultees and the interested public, including councillors and local amenity groups.
Liaison has as much to do with listening as with persuading, and requires particular skills appropriate to the wider range of participants now involved in the EA process. The public generally still view the PR world with some scepticism and giving them a high public profile in the consultation exercise could prove counter-productive. The best role for the PR firm in the EA process is in responding to the media, in co-ordination with the PLE.
With the idea of consensus so new to the majority of the development industry, it is no surprise to find no obvious pedigree of “consensus formers”.
There is not even a recognised term to describe them! However, what is required are politically astute, technically minded professionals.
Inevitably the new legislation will produce such a breed, allowing us finally to ditch the negative, antiquated, adversarial approach epitomised by solicitors and counsel.
Grasping the nettle
In summary, developers of Schedule 1 and (some) Schedule 2 projects are faced with a choice: either stick their heads in the sand and try to ignore EA, or grasp the opportunity and turn it to their advantage by seeking consensus instead of confrontation.
In fact, I would like to think that we could progress to a situation where all development proposals, regardless of whether they need EA, will be decided by consensus. Personally, the spectacle of experts genteelly beating each other over the head at local inquiries in order to reach decisions has (pun) lost its appeal.
