Tuesday, 11 February 2014

Are Development Consent Orders more stringent than EIA?

 Dani Fiumicelli 

Technical Director (Acoustics)

The purpose of Environmental Impact Assessment (EIA) is to ensure that those deciding whether a scheme should go ahead or not, consider the effects on the environment. They then decide whether to refuse permission or allow a scheme to go ahead with or without conditions. The conditions they set could include requiring actions that  reduce (mitigate)  significant environmental effects.

Where the decision-maker agrees that the EIA procedure shows that a project is not likely to have significant adverse effects on the environment, or that significant adverse effects can be suitably mitigated, it follows that the scheme should be allowed. However, normally, it does not automatically follow that a project must be refused where the EIA procedure reveals that it is likely to have an adverse effect on the environment. This is because it is the task of the decision-maker to judge each scheme on its merits within the context of National, Regional and Local Plans and policies. The decision-maker must take account of all material considerations, including not only the adverse environmental effects but also the potential benefits of the proposed scheme. This means that if the decision-maker decides that a scheme’s adverse effects are outweighed by the scheme’s direct or indirect social, political and economic benefits, they can decide to authorise the scheme.

This element of the nature of EIA reflects the classic “planning balance”  involved in “weighing up” the relevant material considerations for a proposed scheme; and was explained as long ago as 1995 by Christopher Wood in his book Environmental Impact Assessment: A Comparative Review (Longman, 1995),  as follows:

It should be emphasised that EIA is not a procedure for preventing actions with significant environmental effects from being implemented. Rather the intention is that actions are authorised in the full knowledge of their environmental consequences. EIA takes place in a political context; it is therefore inevitable that economic, social or political factors will outweigh environmental factors in many instances. This is why the mitigation of environmental impacts is so central to EIA: decisions on proposals in which the environmental effects have palpably been ameliorated are much easier to make and justify than those in which mitigation has not been achieved”.

However, the Development Consent Order (DCO) process appears to be different. The DCO process is based on The Planning Act 2008 and Localism Act 2011 which lays out the processes for making decisions on the development of major, or 'nationally significant' infrastructure projects (NSIPs) for energy, transport, waste and water. This system is intended to expedite decision making on nationally significant projects. Applications under DCOs are scrutinised by the Major Infrastructure Planning Unit, which took over from the Infrastructure Planning Commission and sits within the Planning Inspectorate. The Unit advises the relevant Minister; the Minister then makes the final decision on whether the project should go ahead or not.  

The Planning Inspectorate examines applications in line with procedures which emphasise the use of written representations, seeking to minimise the need for issues to be examined through cross-examination at public inquiries. Although, typically, a hearing is held before a panel where the applicant makes the case for their scheme, Interested Parties can make submissions and the panel can ask questions of all parties.  National Policy Statements (NPSs) are the chief consideration in decision-making on NSIPs, as they set out the policies by which decisions on these infrastructure projects should be made. For example, the Overarching National Policy Statement for Energy (EN-1) in regard to noise states the following:

In regard to Noise – “ The IPC should not grant development consent unless it is satisfied that the proposals will meet the following aims:

·         avoid significant adverse impacts on health and quality of life from noise;
·         mitigate and minimise other adverse impacts on health and quality of life from noise; and,
·         where possible, contribute to improvements to health and quality of life through the effective management and control of noise.”

From this, there appears to an absolute policy requirement that there must be no significant noise effects in order for a DCO scheme to be approved. There are more examples with similar wording to this in other NPSs, which also appear to set absolute limits to the decision-makers discretion and overrule the normal planning balance type judgements possible in EIA.  The important change to note is that the above three bullet points are from the Noise Policy Statement for England and are also found in the NPPF. However, in the latter they are qualified by statements that they should be considered within the context of Government Policy on sustainable development and that noise should not be considered in isolation. On the face of it DCOs appears to set a threshold for the authorisation of  a scheme which EIA doesn’t require.

The DCO process is still relatively new. It will be interesting to see whether the apparent absolute limits are observed. 

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