Robert Garden & Ashley Damiral from CMS Law look into legislative amendments to ensure that pre-application for project development can progress through the EIA and planning process efficiently and without delay.

1.THE ISSUE

A number of planning processes, such as the environmental impact assessment (EIA) process, require that site notices are erected and that copies of documents are made available in the locality for public inspection for a period of time as part of public consultation and notification.

To date, the focus of the COVID-19 response in England has largely been on the continuation of decision making. This is clearly important, but no more so than the ability for development at the pre-application stage to continue to progress through the EIA and planning process without delay.

In EIA terms in England, for the majority of developments, publication duties are imposed under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the TCPA EIA Regulations) and the Town and Country Planning (Development Management Procedure) (England) Order 2015) (the DMPO). For example:

  • Article 15 of the DMPO requires that a planning application for EIA development is publicised through a site notice and a newspaper notice, and that such notices include details of the address at which documents can be inspected and where copies may be obtained; and
  • The TCPA EIA Regulations include various obligations, such as Regulations 20, 21 and 23 in respect of applications and Regulation 25 in respect of the submission of further information, which also require publication of notices in local newspapers, and that such notices include details of an address in the locality where information may be inspected.

Similar provisions to these are included in industry specific EIA Regulations, such as those relating to electricity works. In addition to the above, local planning authorities (LPAs) are under a statutory obligation to prepare a Statement of Community Involvement (SCI). An SCI will set out the steps that the LPA will take to consult on certain applications, and it often goes beyond the statutory requirements identified above. An SCI can create a legitimate expectation as to how parties will be consulted but, unlike the statutory requirements, it would be possible to give notice that you will depart from the SCI. This note focusses on the notification requirements set by legislation, which are more stringent that those imposed by an SCI or via policy and guidance.

There are three key difficulties for compliance with the DMPO and the TCPA EIA Regulations caused by COVID-19:

  • First, it is possible that local newspapers may not be in circulation in the locality. However, at present our experience is that local newspapers continue to circulate, and that newspaper notification remains possible;
  • Secondly, it is unlikely that there will be an address in the locality where documents can be deposited and inspected given the current lockdown measures.

We consider that this is the greatest challenge in the legislation at present given the closure of public facilities such as Council offices and libraries, and this has the potential to cause legal issues if not considered and addressed. For example, we are aware of circumstances where notices have continued to be served advising that documents can be inspected at Council offices that are in fact closed, without alternatives offered. This should not be done, and this creates an immediate risk of legal challenge based on inadequacy of consultation; and

  • Thirdly, there may be doubt as to whether site notices can continue to be erected. In this respect, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 mean that the erection of a site notice would constitute a lawful obligation and so would be a reasonable excuse for someone to leave the place they live.

Because the erection of site notices remains possible, and given the greater numbers of persons working from home and taking daily exercise, it is in fact possible that in residential areas greater numbers of people may see, and pay attention to, site notices than would ordinarily be the case. The opposite is true for non-residential areas, such as business areas, industrial areas and retail outlets, which may have very low footfall at present and where fewer numbers of people may see such site notices. This means that, in addition to site notices, a wider notification campaign may need to be considered.

We are aware of circumstances where parties have been advised to re-erect site notices following the easing of lockdown measures and, whilst this may be appropriate or advisable, it should not be necessary in all cases.

This note focusses on the second of these challenges. If steps are not taken to address these requirements during the COVID19 crisis, then projects will either be forced to delay the submission of applications or progress with innovative notification solutions that, if not considered carefully, could lead to a risk of legal challenge based on a failure of procedural fairness and inadequate consultation. Ultimately, this is a risk that can only be removed altogether with legislative intervention or project delay.

2.THE IDEAL SOLUTION

In Scotland, The Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 were introduced on 14 April 2020. These Regulations will commence on 24 April 2020 and, amongst other things, they:

  • relax pre-application consultation requirements; and
  • provide that developers are not required by this regulation to ensure that copies of the EIA report are available for inspection at a place or address.

Similar legislation (The Electricity Works (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020) has been introduced to amend specific EIA regulations relating to electricity works in Scotland.

This achieves the ideal solution, of allowing projects at the pre-application stage to progress in compliance with legislation and without having to consider more innovative solutions to notification and consultation that may lead to a risk of legal challenge.

However, this only applies in Scotland. In:

  • England, there have been no public statements, guidance notes or legislative amendments that suggest that a similar relaxation will be applied to the majority of schemes. On 22 April 2020, The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament and these took effect from 23 April 2020. These contain a similar relaxation of the requirement to make documents available for inspection, but only apply to offshore oil and gas projects; but
  • Wales, the Welsh Government’s letter to all Chief Planning Officers on 27 March 2020 confirmed that the Welsh Government was considering changes to legislation to remove the need for documents to be deposited locally. This letter also advised that all pre-application publicity and consultation should be undertaken online where there was no option to delay projects. However, development in Wales is subject to pre-application consultation in a manner that development in England is not, which may be why emphasis was placed on this. In any event, this letter was silent on the Welsh EIA Regulations and at this stage it has no material status.

Similar amendments to those made in Scotland, or in relation to offshore oil and gas projects could be introduced in England & Wales, particularly in relation to the need to deposit documents in the locality. Relevant legislation, such as the TCPA EIA Regulations, could be amended so that the deposit of documents in the locality need not be in a physical location and instead a virtual location (so that this is an either/or obligation). Government is being lobbied to make these changes through industry bodies (for example the City of London Law Society) and on specific projects given its importance to the ongoing delivery of infrastructure and development.

A promoter must remain mindful that not all parties have access to online information, and that moving to a purely online consultation process may lead to a consultation deficit. For those who do not have online access or harder to reach groups, details of how to request hard copy documentation should also be provided. Where possible, hard copy letters should be sent in addition to reliance on notices. This addresses the purpose of the legislation, which is considered in more detail below, and will help to prevent delay to major schemes.

This also does not need to be a temporary amendment, although it could be introduced on a temporary basis similar to the Scottish Regulations so that it only applies during the current crisis.

3.THE PURPOSE OF THE NOTIFICATION REQUIREMENTS

In the absence of amendments to the DMPO and the TCPA EIA Regulations, compliance with the strict letter of the law may be impossible. Ultimately, if a project can accept delay then it may need to consider that as opposed to progressing with an element of risk. However, if a project cannot accept delay and has to proceed due to programming or financial constraints, then it is important to consider the purpose of the notification requirements in order to assess the level and likely consequences of the risk.

As identified above, one additional issue to consider is the content of an LPAs SCI and any additional consultation and notification obligations that it may impose.

The key purpose of the notification requirements under the DMPO and the TCPA EIA Regulations is one of procedural fairness. Ultimately, notification needs to be fair and the purpose of the legislation is to afford those with an interest in the project to review documents and have their say. The key principles of consultation in the context of the TCPA EIA Regulations are:

Notification: parties in the locality of a project have a right to be notified of the making of a planning application for EIA development, the subsequent submission of an ES or the submission of further information in respect of EIA development; and

A right to make representations and be heard: parties who are notified in respect of EIA development have a right to submit representations and for those representations to be considered by the LPA.

In the context of planning appeals and moving to a remote system, Christopher Katkowski QC, Charles Banner QC, Katherine Olley, Matthew Henderson and Matthew Fraser of Landmark Chambers produced an excellent paper considering, in detail, the principles of fairness and public participation. There could still be ways of ensuring procedural fairness through notification, particularly in light of the Courts’ view that: “the requirements of fairness must be tailored in a manner that has regard to all the circumstances”.

The purpose of the EIA regime may still be capable of being met with innovative solutions and engagement with the LPA to ensure a consistent approach and that LPAs will look to work with developers to achieve this. Ultimately, going above and beyond the requirements of the DMPO and the TCPA EIA Regulations will be necessary as will careful consideration of the risk in proceeding.

This will need engagement with the LPA, not least because the obligation to publicise the notification often rests with the LPA. For example, Regulation 25(3) of the TCPA EIA Regulations imposes the obligation on the LPA.

For example, in relation to the deposit of documents the notification process could be adapted to:

ensure that the relevant notices refer to both:

(a)a web address where all the documents are uploaded and easily accessible; and

(b)an address and contact details where a hard copy can be requested (together with the fee that will be charged for the provision of such documents).

extend the consultation period beyond the relevant period (i.e. in relation to further information 40 days instead of 30 days) to allow an extended period for documentation to be requested, reviewed and for representations to be submitted.

Article 15 of the DMPO requires that requisite notice is served: this means notice in the appropriate form set out in Schedule 3 to the DMPO or in a form substantially to the same effect. A notice in the above form may be considered to be substantially to the same effect as the standard form in these exceptional circumstances.

This is exactly the type of relaxation that the Scottish Government have introduced, and this is a welcome legislative intervention that does not offend the principles of procedural fairness. However, the Scottish approach is now based in law whereas the position in England & Wales is not (at the time of writing at least).

This approach is also consistent with the type of alternative solutions that the Department for Transport (DfT) recommended in its Traffic Regulation Orders – Covid19 Guidance dated 14 April 2020. Whilst this is only a guidance document, which does not alter the statutory requirements and which relates to a different legislative regime, it demonstrates an acceptance in Government that alternatives may need to be considered and may be appropriate.

Such solutions can never be risk free without legislative amendment, because of the statutory requirements. However, this approach fulfils the purpose of this legislative requirement and does not offend natural justice or procedural fairness. In each case, consideration also needs to be given to whether or not it is genuinely impossible in practice to meet the legislative requirements before adopting alternative methods.

4.CONCLUSION

Whilst the current crisis does present challenges to projects at the pre-application stage, these challenges are capable of being overcome by temporary, or permanent, legislative amendments such as those introduced by the Scottish Government.

Without such legislative amendments, more detailed consideration needs to be given as to how the purpose of the notification procedures, achieving procedural fairness and allowing the public a right to make representations, can be achieved.

This note does not contain legal advice and specific legal advice should be sought in each particular case and in relation to any proposed solutions that do not comply with statutory requirements.

To find more advice on key policy and practice issues visit our 'Adapting to COVID-19' resource hub, where we provide resources for professionals with topics of Impact Assessment Environmental Management & Environmental Auditing, Corporate Sustainability & Climate change & energy.


Please note: the views expressed in this blog are those of the individual contributing member, and are not necessarily representative of the views of IEMA or any professional institutions with which IEMA is associated


Authors

Ashley and Robert work in CMS’ market leading and Tier 1 ranked planning legal team, advising on a broad spectrum of complex planning matters for some of the most high profile developments across the UK.


Ashley Damiral is a Partner and a planning and compulsory purchase specialist focussing on infrastructure, residential and mixed-use redevelopment projects for a wide range of developers, funders and landowners. Legal directories note that: “Ashley impresses clients thanks to his “detailed knowledge and understanding of their objectives.” [He] is active on numerous infrastructure consenting matters in the energy and transportation sectors.” Chambers UK 2019. “Ashley Damiral is “the consummate London planning lawyer, with judgement and an in-depth knowledge of planning law that a top QC would be proud of.”” Legal 500 2019.


Robert Garden is a Senior Associate and a specialist in energy & infrastructure planning. Robert has particular experience in consenting energy projects, including many offshore wind, electricity cable and interconnector projects, and has particular expertise in the promotion of DCOs and CPOs. Robert has particular experience in providing strategic advice throughout the development process, from project inception to delivery, and has a particular specialism in environmental impact assessment and habitats regulation assessment matters.


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