Environmental Outcome Reporting: Overhauling EIA?

Part 6 of The Levelling-up and Regeneration Act 2023 (LURA) introduces Environmental Outcomes Reports (EORs) intended to replace the EU-derived Strategic Environmental Assessment and Environmental Impact Assessment (EIA) processes with an outcomes-based system which the government says will be more streamlined and place greater focus on delivering our environmental ambitions.

The LURA itself leaves the majority of the detail to regulations, but the power to make such regulations takes effect on 26 December 2023. It is likely further consultation and secondary legislation will start to come through early in the new year.

Section 152 LURA empowers the “appropriate authority” (the Secretary of State, a devolved authority, or the Secretary of State acting jointly with one or more devolved authorities) to make regulations specifying outcomes relating to environmental protection. “Environmental protection” is defined very broadly as:

• protection of the natural environment, cultural heritage and the landscape from the effects of human activity;
• protection of people from the effects of human activity on the natural environment, cultural heritage and the landscape;
• maintenance, restoration or enhancement of the natural environment, cultural heritage or the landscape; and
• monitoring, assessing, considering, advising or reporting on anything in relation to the above three points.

These outcomes will be subject to consultation and will also need to have regard to the government’s Environmental Improvement Plan (published in January 2023) which is the first five-yearly revision to the government’s 25-Year Environment Plan (January 2018).

While very little detail on the potential outcomes is available, Annex A to the government’s consultation “Environmental Outcomes Report: a new approach to environmental assessment” in March 2023 included an example of how assessments could use outcomes and indicators:

"Biodiversity; The government has introduced new environmental targets through the Environment Act 2021 which will shape the biodiversity outcome at the strategic level. At a local/project level species-specific indicators will be needed to assess the project against the high-level outcome."

"Outcome; An increase in the abundance of protected species and supporting habitat. To complement the roll out of biodiversity net gain across the planning system, this outcome focusses on the support for protected species."

"Strategic level indicator; Changes in the status of protected species and supporting habitat across the geographic area. At a strategic level, this seeks to ensure a holistic view of the impact of development across the geographic area to ensure that biodiversity impacts are not considered in isolation."

"Project level indicator; Changes in the abundance and/or distribution of protected species and supporting habitat in the relevant geography, agreed study area or immediate locality. This ensures that site-specific consideration is given to any species present or that could be affected by the development."

Regulations will also establish when an EOR is required to be prepared and taken into account in connection with a “proposed relevant consent” or “proposed relevant plan”.

An EOR must assess:

1. the extent to which the proposed relevant consent or proposed relevant plan would, or is likely to, impact on the delivery of specified environmental outcomes;
2. any proposals for increasing the extent to which a specified environmental outcome is delivered;
3. the mitigation hierarchy, i.e. any steps that may be proposed for the purposes of avoiding the effects of a specified environmental outcome not being delivered, mitigating any effects which cannot be avoided and providing compensation as a last resort, together with consideration of reasonable alternatives;
4. any proposals about monitoring or securing specified environmental outcomes or avoidance, mitigation or compensation.

As to what an EOR will actually look like (compared with the current EIA approach), the March Consultation suggests (which appears to be largely consistent with the current EIA approach):

“…EORs will succinctly summarise and signpost underlying technical work carried out for the development of the plan or project. By way of example, for an application under the Town and Country Planning Act 1990 at the project level, an EOR should contain:

• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance - this will include
  • the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
  • the current baseline and relevant trend data, similarly identified
  • commentary on levels of uncertainty for that data or indicator set proposed mitigation, and
  • monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.

5.8 As now, the underlying technical analysis and reports should identify the effects of the plan, programme or project to support and inform the assessment against outcomes, measured using indicators at the relevant scale [(s153(4)(a))].

5.9 Technical reports will remain separate, standalone documents as is the case for plans and projects that do not require an environmental assessment. This should ensure important technical detail is not buried in appendices and make the technical reports more accessible to users and the public.”

Section 156 of the LURA contains a safeguarding provision relating to non-regression, international obligations and public engagement. It provides that the EOR regulations must not result in a lower level of environmental protection under environmental law as exists at the date of the LURA coming into force (ie October 2023). Regulations may not contain provisions inconsistent with the UK’s international obligations concerning the assessment of the environmental impact of relevant plans and relevant consents (eg in relation to the Habitats and Birds Directives).

Regulations may also make provisions relating to enforcement, including the creation of criminal offences and the imposition of civil sanctions.

Whether an outcomes-based regime will in fact be simpler and less bureaucratic than the current EIA regime (which is focussed on the significance of the effects on a range of environmental factors) will largely depend on how simply the environmental outcomes are drafted. Subject to the detail of the secondary legislation, any assessment to determine whether or not environmental outcomes are being met will likely still require an assessment of effects to understand what mitigation might be required. In that regard, whilst the shift in language is consistent with the government’s move away from EU law and the outcome may not in substance be the complete overhaul the government has suggested.