In advance of the approaching deadline for significant changes in UK EIA process, our series of topical EIA articles continues with consideration of how to build scheme flexibility into Phased development
For a multi-phase development, more than any other, there is a need for scheme flexibility. Let’s face it, in the time between submitting a planning application and site completion, there is plenty of potential for variation – just look at the changes that 2016 brought. The legal, political and physical environment, and therefore the needs of the developer and end user, can alter significantly over this period, resulting in a consent that no longer meets the need. Where multi-phase developments are subject to Environmental Impact Assessment (EIA), post consent scheme variations legally require -assessment review and updated reporting.
It is therefore important to minimise the future demands of EIA on multi-phase development by ensuring that flexibility is integrated into scheme design from the outset.
Flexible planning consents
Whether submitted in full, outline, or with some detailed elements, the level of information required for EIA schemes has been largely set by case law. This requires that sufficient information must be provided for EIA projects to allow the planning authority to rigorously assess the scheme – which is essential to minimise risk of legal challenge. Nevertheless, EIA should not be seen as a barrier to a reasonable planning approach and case law has also demonstrated that it is possible to accommodate evolving detailed design by the use of ‘parameters.’
So there is a balance to be had.
Parameter planning essentially involves the setting of fixed elements of the proposed scheme (often via reference to maximum and minimum values and/or zones) that cannot change and to which subsequent reserved matters submissions will adhere.
National Planning Practice Guidance requires that the EIA assessment should be undertaken and assessed at the time of the principal decision. Carefully framed parameters will ensure that the planning permission for the multi-phase development allows flex within these approved limits. This means that the planning permission does not dictate exactly what the final scheme will be and thereby allows it to respond to market demands at the time of project delivery. To minimise the likelihood that further EIA actions will be required, any such planning permission should then be subject to conditions or other measures which ‘tie’ the scheme to what has been assessed.
The benefit of the parameter planning approach
What’s the problem? Surely instead of reserved matters applications we can just submit material amendment applications under S73? That is true, but with extra effort in the underpinning parameter planning the EIA element of this process can be streamlined.
If post-consent changes sit within the parameters that were tested by the original ES (i.e. they are largely in line with the scheme that was described and approved by the outline consent) the assessment of effects should, unless the receiving environment has changed significantly since the original consent, be unchanged and no further assessment required. If, however, proposed scheme changes step outside the tested parameters, S73 and/or reserved matters applications will be required to be accompanied by an addendum to the ES which sets out how the proposed changes will affect the conclusions of the original ES.
The scope of any addendum would need to be agreed with the planning authority in advance of submission and should be focussed on material issues. Despite early agreement of scope at his stage the cost of preparing this document, and the time required for consultation, will inevitably become onerous if ongoing scheme changes require frequent revisions.
The process in practice
Although parameter planning is a core element of phased development EIA there is no ‘one size fits all’ approach.
For any development the process should aim to allow the scheme to adapt to changing needs and circumstances and the approach to achieve this will vary from case to case. Alternative approaches could include setting out a variety of development scenarios to be tested, zoning, and/or maximum likely limits for the parameters in question. Whilst is not possible to guarantee that revisions /addendums to the ES or applications to amend the scheme will not be required, we can minimise this risk by maximising flexibility to allow for scheme evolution.
The EIA regulations are changing in May 2017. Those bringing forward schemes that could require EIA should now be starting to consider strategies for EIA screening if they are to be considered under the existing Regulations. Discussing flexibility at the start of a project will ensure that EIA screening sets the project off on the right foot.