Gavin Hall details how Savills approaches reserved matters applications and how a pragmatic approach can prevent unnecessary duplication of work
The Town and Country Planning (EIA) Regulations 2011 consolidated the 1999 Regulations, amendments and case law. One such piece of case law, commonly known as the Barker Case, noted that reserved matters applications, for schemes assessed at the outline stage under the Regulations, did not need to be accompanied by an environmental impact assessment (EIA).
The judgment noted that “in many, if not most cases, this will not matter”. However, subsequent decisions have held that reserved matters (RM) applications do need to be screened, and potentially assessed, in line with the EIA Directive, and this is relevant in how outline applications and their environmental statements (ESs) should be formulated.
Part 3 of the 2011 Regulations now explicitly refers to cases where the environmental information used to assess an outline proposal is adequate to assess the environmental effects of subsequent applications. However, it also states that where the information used is not adequate to assess the effects of subsequent applications, a Regulation 22 submission of further information would be required.
Savills has prepared RM applications where subsequently it has come to light that the original outline application could have been better set out. It is commonplace for changes to take place over the course of a multi-phased development and the EIA Regulations should not be seen as a barrier to pragmatic planning sense.
Too often, however, the scheme description framework, within which the outline application has been assessed, is too rigid to allow a developer or landowner to modify the scheme with sensible and sustainable improvements at a later stage. These difficulties arise because local planning authorities (LPAs) often deem even minor changes as requiring a new ES.
RM applications in practice
Savills recently reviewed the acceptability of an ES for a scheme with an original outline consent from 2008, and which had progressed through an RM application for a second phase in 2012 and a third phase submitted later the same year.
The original application was supported by an EIA. That EIA presumed a phased development over 10–15 years, and so it was agreed that there was no need to update the assessment to take account of changes to the baseline (including the construction of phase 1) as this was implicit in the original assessment.
However, there was a question as to whether phase 2 reserved matters sat within what was assessed in the original EIA. An LPA must be satisfied that the information in front of them is adequate to assess the scheme’s environmental effects. After outline permission was granted, the masterplan had changed to move some uses originally proposed in phase 2, into phase 3 and vice versa.
The revised layout for phase 2 was, however, largely in accordance with the outline approval and the environmental statement.
The LPA then questioned how significant changes had to be, to prompt the need for further information.
The answer to this question is dependent upon how much flexibility is incorporated into the original parameter plans upon which the EIA is based. In this case, it was possible to conclude, in screening the RM application, that for phase 2:
- the revised layout was largely in line with what had been approved at the outline stage;
- it sat within the description of the development permitted by the outline consent; and
- the accompanying proposal overwhelmingly accorded with the parameters assessed.
The RM application would make no material difference to the assessments and conclusions in the original environmental statement and the assessments submitted remained valid. This was set out in a screening request to the LPA and the LPA agreed that the proposal did not need further environmental information.
Did phase 3 sit within what was assessed?
In this case, the application was accompanied by an addendum to the environmental statement. This was because, in the opinion of the project team, there was the potential for significant differences in the environmental effects from the original parameters.
The scope of the addendum was agreed with the LPA to ensure it concentrated on the material issues; visual impact, microclimate and transport. These topics were all supported by new technical reports assessing the changes to the scheme and considering the full scheme as changed. However, a complete new EIA was not required.
The pragmatic and flexible approach taken in this case ensured the proposals were accompanied by a sufficient level of information for the LPA to be able to assess the likely environmental effects of the scheme as a whole, without using undue resources.
EIA is vital in development and it must be undertaken stringently and objectively. However, it is crucial that flexibility is built in at the outline stage and that LPAs take a pragmatic stance. Applicants also need to appreciate the importance of undertaking these assessments in a sound fashion.
Discussing flexibility at the start of a project can engender an understanding as to what the EIA process needs to achieve to deliver development. Such discussions should also help to overcome future obstacles as a project evolves and ensure the Regulations are not seen as a bureaucratic inflexible hurdle.
EIA at RM is a straightforward process, but lessons learned should be fed back to the preparation and assessment of outline planning applications.
This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice.
Gavin Hall is a director at Savills
