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The Good, The Bad and The Disproportionate of ES Review

26-03-2021

In this article Toby Gibbs from Logika Group along with Juliette Callaghan and Vanessa Thorpe from Trium Environmental Consulting explore the importance of using proportionality, pragmatism and common sense when undertaking Environmental Statement independent reviews.

So, you have appointed a suitably competent expert to advise on environmental matters on your project and for your planning application.  The competent expert has embedded themselves into the design team, provided impartial, environmentally, and commercially sound advice that has focussed on ensuring the achievement of sustainable development.  In addition, the requirements of the EIA Regulations have been appropriately addressed, the local planning authority and other consultees consulted as necessary and an Environmental Statement (ES) has been prepared which has been reviewed by your project team and submitted in support of your planning application.  While it is recognised that the future of environmental assessment may look very different, this reflects the current best practice and the model EIA process and is most frequently, in our experience, the approach taken.  So why on completion of the EIA is there the dread that the process has only just started?!

More often than not, local planning authorities are appointing independent third party reviews of ESs. And whilst we see the benefits these can provide, there are number of frustrations and missed opportunities.

A good ES review will check whether a local planning authority has sufficient information to reach a reasoned conclusion on the likely significant environmental effects of a project. And where any shortcomings are identified these will be directly relevant to the decision-making process. A good ES review will be scoped appropriately and the third party reviewer shall be fully briefed by the local planning authority, the Applicant and the Applicant’s EIA consultant, to ensure the reviewer has a comprehensive understanding of the project, the surrounding sensitivities, project nuances and anything pertinent that has arisen out of the consultation undertaken to date.Good ES reviews will likely be underpinned by a reviewer’s established process, but it will not be formulaic, instead being flexible enough to cope with the very different circumstances each project presents.A good review will ensure that the design has evolved in a way that has considered and responded to the existing environmental factors and the legislative controls thereby achieving the required environmental outcomes.

A bad review will be poorly scoped between the local planning authority and the reviewer and will criticise and challenge professional opinion even when suitable justification is presented. And a disproportionate review will often be based on a ‘tick-box’ style process, and as a result will apply the same level of review to all technical topics of the ES, with little in the way of professional opinion and common sense applied to the matters that are the most important.A disproportionate review will consist of an overly detailed critique of matters that are irrelevant to reaching a reasoned conclusion on the significant environmental effects of a project.

Errors and inconsistencies in an ES do not automatically require the use of Regulation 25.  If an ES fails to have regard to a certain aspect, the key consideration is whether it is highly likely that if consideration had been given to the aspect, precisely the same conclusion would have been made.  In many cases where due process has been followed, an error, inconsistency or even an omission does not necessarily change the overall result or conclusion of the ES.  Common sense and pragmatism should prevail throughout the ES review process. Legal case law supports this.

Matthew White, Partner and Head of Planning at Herbert Smith Freehills states that “The importance of proportionality, pragmatism and common sense when preparing or reviewing an ES should not be underestimated or overlooked. For EIA to be a valuable tool to inform the planning process, it is essential that it is selective and focuses on the main environmental effects of the development. The courts have frequently emphasised that the EIA process must be realistic and that environmental statements do not have to assess every conceivable impact that might be caused by development.” Mr Justice Sullivan in the case of Blewett held that: “It would be no advantage to anyone concerned with the development process – applicants, objectors or local authorities – if environmental statements were drafted on a purely ‘defensive basis’, mentioning every possible scrap of environmental information just in case someone might consider it significant at a laterstage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the principal issues with a welter of detail.”

Michael Humphries, a leading QC on planning matters including EIA, has in the past, been frustrated by a ‘heavy handed’ approach to the use of Regulation 25 “The problem with some Regulation 25 requests is that they are used as ‘unduly legalistic’ weapons to delay or frustrate developments and do not adequately reflect the overall purpose of, and limits to, the EIA Regulations as recognised in the ‘Blewett approach’. Blewett seems to acknowledge that EIA should be a tool for better decision-making, and Regulation 25 requests can be part of that, but it also recognises that legalism should not be pushed too far.”

 

Matthew White confirms that “EIA when carried out properly is a valuable discipline, which improves the quality of new development; the social value of our towns and cities; and our collective health and wellbeing. A good ES review will always enhance this process. A bad ES review will not only create an "obstacle-race" that hampers the delivery of good development, but also risks bringing the very purpose and objectives of EIA into disrepute.”

In summary, it is our view then that the scope of the ES review should not be to raise a long list of ‘non-issues’ that end up delaying a planning committee and causing unnecessary additional workload for both the Applicant’s team and the local planning authority.  EIA should support the decision-making process and ES reviews should facilitate the ability of officers to make informed and confident decisions on applications in the knowledge that the ES has been reviewed sensibly, by a competent expert and undertaken in a timeframe that supports local requirements.  The process should be expedient and support the drive for sustainable development but in recognition that speed should not be at the expense of unforeseen adverse effects on the environment.  The courts have recognised the additional delay and costs that can be caused by Regulation 25 requests. Such requests should therefore be limited to matters which are directly relevant to reaching a reasoned conclusion on the significant effects of the proposed development on the environment. They should only be made where the ES is “deficient” in the sense of being manifestly incomplete according to the requirements of the EIA Regulations and should never be used simply to obtain clarification or non-essential information.

There is a clear need to simplify the entire EIA process in the future and to remove its litigious nature.  We don’t currently undertake ES reviews, but maybe we should?  Our reviews would be focussed, proportionate to the development in question and with no overly detailed review of matters that are inconsequential.

Authors:

Juliette Callaghan – Trium Environmental Consulting

Vanessa Thorpe – Trium Environmental Consulting

Toby Gibbs – Logika Consultants

 

Contributors:

Michael Humphries QC

Matthew White, Partner, Head of Planning Herbert Smith Freehills



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