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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