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Environmental Outcome Regulations: What do we know?

After a few weeks of political uncertainty, we know that the implementation of the Levelling up and Regeneration Bill is pressing on. So what does this mean for Impact Assessment?

The below Q&A with experts from our Environmental Impact Assessment (EIA) team explains all.  

What is the Bill and what has changed?

Published in May 2022, part 5 of the Levelling up and Regeneration Bill provides guidance on what to expect for Impact Assessment, albeit there are some big questions posed and not resolved. The expectation is that new Environmental Outcome Regulations (EOR) will be drafted and implemented as the primary legal framework for impact assessment.

What is an ‘Environmental Outcome Report’ and more specifically what are ‘Environmental Outcomes’ and where do they come from?

Despite this being the crux of the new Regulations, this is where there is the least information in the Bill. At the project level, we have assumed that the Environmental Outcome Report will be the mechanism for reporting environmental impacts, similar to an Environmental Statement/Environmental Impact Assessment Report. It is anticipated that determining the need and scope will follow similar mechanisms to the current regime.

We understand that environmental outcomes will be an impact threshold (possibly on a receptor basis) and there will be a requirement to determine and report on how the plan or consent will influence the impact threshold. How these will be set is currently unknown, but linkages can be expected with the Environment Bill and Environmental Improvement Plans.

What will the Environmental Outcome Regulations apply to?

The indication is that the new EOR will apply to plans (e.g. spatial development strategies) and consents (for projects) in the UK, including offshore areas. Very similar to the current regime, there are likely to be some plans and consents where Environmental Outcome Reports are compulsory (‘Category 1 consent’) and other plans and consents where Environmental Outcome Reports are required dependent on criteria being met (‘Category 2 consent’).

Where will the EOR apply?

Whilst impact assessment is currently a devolved matter for Scotland, Wales and Northern Ireland, the bill indicates that the new EOR regime will apply across the UK.

Why are the Government proposing these changes?

The Government wants to refine the existing system – reducing complexity and the administrative burden for all parties involved. The aim is to have a clear focus on protecting our environment, pursuing positive environmental improvements and providing clear join-up between strategic and project scale assessments. The bill contains a non-regression clause, which aims to prevent the dilution of environmental protection.

Are the changes proposed in line with expectations? How different could the new Regulations be to the current Regulations?

Whilst there is a lot of detail relating to the Bill which is not yet released or understood, many of the opportunities for Impact Assessment which the industry has been striving for in recent years are likely to be captured – great news. These include avoiding duplication in reporting, defining mitigation early in design, the importance of defining positive impacts, digitalisation and commitments to monitoring.

The new Regulations represent a real opportunity to better enforce quality practice in Impact Assessment and ensure that the real impacts on the ground are as anticipated.

As with any ‘new way’, there is a lot of speculation over the level of change that could occur. The EOR could bring forward major changes but it is worth noting that a drastic shift would be a departure from internationally established practice informed by a long history of theory and practice. Many countries see the UK as having one of the best functioning project level Impact Assessment systems. 

The greater the change proposed to UK practice, the greater the requirement for Government investment into training and practitioner roles within public bodies and authorities.

What clarity is provided through the Bill?

Many established principles are clear. These include an outcome led approach, compliant with international obligations and one that avoids duplication with other legislation. There will be a requirement to fully understand the contribution of a plan or consent to the environmental outcome, alongside the mitigation to avoid, reduce or offset impact on objectives – anticipated to be a pre-requisite of an adopted plan or consent. 

There will be a requirement to monitor the outcomes to ensure deliverability of mitigation/confidence in impacts – this could potentially be subject to public body/authority post consent reporting. Public engagement remains a central part of the process and there is an increased emphasis on the use of competent experts.

What uncertainty does the Bill pose?

There are some areas which have yet to be thought out. These include some major things such as:

• the types of development that the EOR may apply to;
• how variations/modifications will be dealt with;
• timings of any statutory procedures;
• arrangements for devolved administrations; and
• the responsibilities/duties of public bodies and authorities.

Equally there is no consideration of how objectives will be set and managed, the likely content of assessment and the practicalities of conducting assessment. One area of surprise is that there is no real mention of the consideration of impacts on people and their health and social environment, or climate change.

When will the new Regulations land and will it affect current projects?

There is a lot yet to consider for the Government and the investment they want to put into a new system. We anticipate that it would be at least two years before any new Regulations come into force in at least part of the UK, and that there would be transitional arrangements in place. It is worth noting that even in 2022, some projects still benefit from the transitional arrangements created by the 2017 EIA Regulations.

Our expert EIA team can guide you through the changes and provide more information on how they might affect ongoing and new projects. Having been involved with a programme of lobbying Government since 2020, the potential changes are already embedded in how we work and so we are best placed to advise on how these changes will impact development. For more information, please contact Andy Ricketts or Kyle Welburn.

18 July 2022