by Mark Day and Matt Davis
Environmental assessment (EA) became law in the UK almost two years ago. Since then, a large number of development applications have been considered under the new procedures and over 100 environmental statements have been prepared to accompany planning applications. But just how effective the EA procedures are turning out to be is difficult to say. It seems that there are still too few developers convinced of the benefits of following more than just the letter of the law. But EA is just the tip of the environmental iceberg — more onerous legislation is on the way. A proactive environmental policy will be necessary, even to keep pace with legislation and public image requirements. Developers can no longer afford to be complacent.
Between July 1988, when the EA Regulations were introduced, and last September, some 111 environmental statements have been either requested or submitted, and are known to the DOE. This excludes a small number of environmental statements for projects falling outside the planning procedures such as fishfarming, forestry and Crown development projects, and it is clear that some “volunteered EAs” have not been passed to central government.
The largest number of these 111 statements relates to retail, commercial and residential projects, comprising a range of schemes such as new settlement projects, retail and business parks, hotels, conference and holiday schemes and a handful of industrial estate proposals. These would be considered as projects for which EAs are not mandatory (Schedule 2 projects under the regulations) but for which determining authorities may call for an EA if, for example, the location is “sensitive”.
Next in frequency were waste disposal and extractive projects, the second and third largest categories respectively, closely followed by a mixed bag — roads, industrial projects and energy schemes. Most of these are of a type more likely to fall into Schedule 1 of the Regulations (mandatory EA) and their fewer number reflects only the smaller number of new projects of this type.
The need for understanding in the development sector of the potential benefits of EA procedures is clear. Thoroughly approached and carried out, an EA will:
- optimise the development to improve the chances of planning success, and avoid subsequent problems;
- cut delays in the planning process;
- improve the public image of the developer and the development.
The resultant environmental protection costs are usually small in relation to the benefits obtained, and may have been necessary in any case.
Problem areas
Despite the seemingly large number of environmental statements produced to date, experience in their preparation and in their determination (by the authorities) is patchy. Of the first 100 or so environmental statements submitted to the DOE, about 30% were dealt with by metropolitan districts and 20% involved national parks authorities. Scottish regions and districts accounted for about 20% each. The remainder were shared around the 333 English and Welsh shire districts.
A number of problem areas are emerging. Some are procedural in nature, borne out of confusion over certain aspects of the process — determining the need for EA is a good example. Others are substantive, reflecting, in some cases, a misconception about the assessment process in general and the structure and content of environmental statements in particular.
Most concern has focused on the issue of the need for an EA. A project listed in Schedule 1 will require EA in every circumstance. A project of a type listed in Schedule 2, on the other hand, will require EA only where, in the view of the local planning authority or the Secretary of State, it is likely to have a significant effect on the environment. To say that determining those projects which are likely to give rise to significant environmental effects has proved difficult would be understating the confusion in which developers and planners alike have found themselves. The three most common grievances are:
- the level of guidance from central government;
- the fact that the Secretary of State is not obliged to explain his reasons for ruling against the need for EA;
- the inconsistencies illustrated by a number of recent rulings.
Interpreting the fairly general guidance at the authorities’ disposal would not be so difficult if it were not for the fact that, when the Secretary of State takes an opposite view, the authority is left in the dark as to the reasons why. Thamesdown Borough Council felt recently that the scale of a housing scheme meant that an environmental statement should be prepared. The Secretary of State disagreed. Nottingham City Council took the view that a scheme involving more than 100,000 sq ft of floorspace (the indicative threshold suggested in the DOE Circular) warranted an environmental statement. The Secretary of State ruled that it did not. The reasons for both were unclear.
North of the border, in Grampian Region, Banff and Buchan District Council decided that, because of the underlying geology and the proximity of housing, an environmental statement should be prepared for a landfill project to address, specifically, the risk of landfill gas migration. The Secretary of State for Scotland decided otherwise. These inconsistencies do little to clarify the issue.
In many of the cases involving the development sector (the non-mandatory EAs) the situation has developed as follows:
(1)planning authority knows of local objection and requests EA (why should the authority put its head on the block?);
(2)the developer wishes to keep its relationships with the authority sweet, so accepts responsibility;
(3)neither developer nor authority discusses scope of EA, or whether specific environmental reports (noise, ecology etc) would suffice;
(4)the EA arrives, with little organisation of the key issues, and the authority does not have the experience to assess it.
It is essential that, at the earliest stage, experienced EA practitioners/co-ordinators are brought on to the team — someone who can judge the significance of all the issues and talk through them with the authorities. Too few EAs consist of individual specialist inputs with no weighting of the technical areas covered. The coordination of EAs by non-environmental specialists can compound the problem. It may be that the formality of an EA can be replaced by specific reports on key types — as in pre-regulations days!
Another area of concern has surrounded the process of consultation, the purpose of which is to provide organisations such as the Nature Conservancy Council, the Countryside Commission, and HM Inspectorate of Pollution with the opportunity to express an opinion on the merits of a proposed project before a planning application is lodged or determined. Local planning authorities are obliged to consult these bodies when considering both the need for and the adequacy of an environmental statement as part of the determination of the planning application. As with other elements of the regulations, this requirement works well in some cases, less so in others. Wirral Borough Council recently undertook exhaustive consultations, beyond those required under the regulations, prior to the determination of a landfill project recently.
Another borough council, on the other hand, not only failed to consult local environmental and amenity groups about a proposed retail park but failed to speak to the NCC and Countryside Commission as well.
Ideally, much of the consultation would be carried out by the EA practitioner. Developers have often been suspicious of open dialogue on environmental matters with many authorities prior to planning submissions. However, it is essential within the EA process, and indeed can provide valuable information on site characteristics. Of course, the adversarial nature of the UK planning inquiry process has nurtured such suspicions. The EA consultation requirements break some new ground, but changes of attitude are necessary on both sides. Some of the authorities will continue to push for conservation or other commitments which may not strictly be necessary. It is here that the practised EA manager comes into his own, in making judgments as to what is essential or merely desirable, and of the relative importance of environmental proposals (eg noise bunding v visual impact).
A major unsolved issue surrounds the relationship between EA and outline planning permission. An EA can reflect only the stage of development of proposals. With a hazardous waste incinerator or an airport, proof of viability often requires detailed appraisal. But with a business park or a redevelopment it is often impossible to specify precise detail. Potential objectors, however, expect such details — right down to the height of the street lighting and the boiler emissions. There are two ways forward:
- detailed appraisal of a development “typical” of the type proposed. It is to be hoped that this will show that resultant impacts will be insignificant in relation to available standards and guidelines, even if the final development differs from the outline proposals (this may not be helpful in some respects — eg visual impact)
- use the EA to identify limits on the final development form, eg the final design will not cause noise levels to exceed x, buildings will not exceed 15 m height etc. These limits can then be enshrined in conditions or section 52 agreements.
We would stress that this should not be a way of avoiding specification of possible impacts but of obtaining the confidence of the authorities (and public) by placing limits on such impacts in the absence of definitive information.
It is therefore not surprising that the quality of environmental statements produced varies so much. The range of interpretation of what constitutes an environmental statement, both in form and content, reflects a lack of clear guidance about what is to be expected. There are three main areas of criticism:
- failure to identify the full range of possible impacts adequately;
- inadequate assessment of potential impacts;
- a poor non-technical summary.
Several environmental statements take as their terms of reference the information specified in paragraph 2(a) of Schedule 3 to the Regulations. Even then the information presented tends to be limited. Only in a certain number of cases have developers attempted to “sieve out” those issues that are of greatest relevance. A process of consultation, involving both statutory and non-statutory groups, can identify the more important issues which later form the basis of the EA, and, in the long term, can save time and argument.
The assessment of impacts has also left much to be desired. Too many examples exist of assessments that are subjective and vague. Expressions such as “minor impact, insignificant, unlikely to affect” abound. Qualification of context is essential and can be provided by:
- relationship to accepted standards/guidelines;
- relationships to “background” levels;
- comparison with experience elsewhere;
- views of the various authorities and a whole range of other comparators.
“A good summary is worth its weight in gold” was the way in which one senior planning officer expressed it recently. Too often, summaries merely precis the environmental statement as a whole rather than go to the crux of the matter, spelling out clearly and concisely the impacts which a scheme will have, those that will be mitigated and those, if any, that are residual. But even a poor summary is better than no summary at all. A recent survey showed that out of 70 environmental statements examined, only 30% had no summary.
An optimistic outlook
So what are the lessons which can be learnt from this experience? The most obvious is that time will play a major part. As the number of environmental statements prepared increases, so, too, will the experience of developers and planning authorities in their preparation and review. While the process undoubtedly has a number of teething problems there is nothing to suggest flaws of a more fundamental nature. Indeed, a recent survey of planning authorities (undertaken by Ronald Cooper Kenyon of the RICS) suggests a more optimistic future for the regulations. Considering four issues — namely the possibility of introducing delays in the planning process, the appropriateness of Schedule 2 descriptions, the guidance provided in the two accompanying circulars and the acceptability of the environmental statements submitted so far — the majority of those interviewed felt that the regulations would not cause undue delay in dealing with applications falling under the new procedures and that the definitions provided in the schedules and the circulars were satisfactory.
Environmental statements, in the main, appear to be considered adequate. Indeed, one respondent suggested the need for stricter guidance in establishing their terms of reference. This would help to ensure that documents were concise, addressing the key issues, and would discourage unnecessary “padding”.
A good EA can benefit all those involved. From the developer’s point of view, it provides a useful framework within which project design and environmental considerations can interact. In these days of increasing public awareness of environmental issues, a proactive EA policy can help to avoid the possible public image pitfalls which can be lurking in the background. Identifying adverse effects early allows time to modify the project by considering alternative layouts or building in mitigation/compensation measures.
To the extent that it brings forward work that the developer may have needed to do at a later stage (especially for major projects where the developer already has to provide a full and detailed account of environmental effects), the EA process should bring greater focus to the planning process and help to streamline the application procedure. It can also help to minimise potential public opposition, often borne out of lack of knowledge of the proposed scheme, by providing a full description of the project’s envisaged effects in a format available for public scrutiny. From the point of view of the planning authority, EA provides a sounder basis for decision-making.
Where next for EA?
So what does the future hold? A well-prepared environmental statement will undoubtedly lead to more informed planning decisions, but the effectiveness of the new procedure remains to be seen. How will the new wave of environmental legislation, expected later this year, lead to better managed developments once planning permission has been granted?
The regulations are here to stay. Indeed the European Commission is working up proposals at the moment to extend significantly the EA process to development programmes and plans (perhaps to structure/local plans and similar regional plans), a move seen by the DOE as the next logical step. Already, the commission is subjecting applications made by member states under the structure fund arrangements to some form of environmental overview, and it is only a matter of time before regional proposals, such as the transportation programme for Greater London, will be subject to formal EA procedures.
The response of the development sector to EA has largely been reactive and has resulted in the production of EAs where not strictly necessary. The final product has been of changeable quality, often the result of the variable specialisations of EA practitioners (eg landscape architects, engineers etc). It must be understood, especially by the development sector, that the EA is not just a report. The most important outcome of the EA process is not the report but the environmental optimisation of the development, so that the final scheme is the best achievable. The report itself must be seen to be a fair appraisal of the residual environmental effects, not a promotional document. The EA will be fair game at any subsequent public inquiry, and must be able to stand up to such scrutiny.
