The future for environmental protection and heritage assets

13 Aug 2020

Planning and Environment

By Emma Dring

A key aim of the White Paper is to provide a simpler, faster and more predictable planning system. In recent times, heritage and environmental concerns have provided fruitful grounds for objecting to and challenging development proposals. There have been both hopes and fears – depending on your point of view – that the Government might make it easier to overcome such obstacles as part of the wider planning reforms. To what extent is this achieved in the White Paper?

Environment

Talk of “newt counting delays” and cutting red tape has, understandably, generated speculation that environmental protections will be sacrificed or watered-down once the UK is no longer bound to comply with EU environmental laws. The requirements for Strategic Environmental Assessment, Environmental Impact Assessment, and Habitats Regulations Assessment all derive from EU legislation, but have been transposed into domestic law. At present, the only legislative changes on the table are amendments to ensure that the domestic law continues to be workable and to apply in full following Brexit.

In the White Paper, the Government has indicated its intention to continue to meet “our domestic and international obligations”, whilst taking opportunities to strengthen protections following Brexit. Another “more detailed” consultation is planned for the autumn, but it appears that the Government’s main aim is to speed up and streamline the assessment processes rather than removing, replacing or even significantly changing them.

The focus is on avoiding the perceived “duplication of effort” which arises from the need to carry out different types of environmental assessment. It seems possible, if substantial changes to the legal obligations are not intended, that this will be achieved by combining the different assessments into a single legislative framework, with different requirements for the plan-making and decision-taking processes (SEA applies to plan-making only, whilst EIA only applies to development control; HRA applies at both stages). The proposed front-loaded local plans would grant outline consent in ‘Growth’ areas, collapsing the distinction between plan-making and development control to significant degree, and in turn making it easier to combine and streamline the requirements for environmental assessment. However, even in ‘Growth’ areas there would still be significant detail left over to the project level. It would seem that a minimum of two stages of environmental assessment will still be needed, if current legislative obligations are to be maintained.

As in other areas, the use of data is expected to help deliver the proposed changes. It is stated that this should “reduce the need for site specific surveys” – although of course much depends on the existence and quality of the data.

Site specific surveys capture detail of environmental value at a fine grain. The fact they are routinely needed is an indication that the existing local level data is not adequate to allow a clear understanding of site-specific biodiversity interests. There is therefore a question mark over whether this aspect of the White Paper will in practice lead to reduced protection. If site-specific data is not available but does not need to be acquired, the impacts of development cannot be considered in any streamlined assessments. The devil will be in the detail.

On this point, it should be noted that the Environment Bill currently before Parliament would (if passed) impose a standard pre-commencement condition requiring new development to achieve a 10% “biodiversity gain”. This would be demonstrated in a submitted plan, which may include off-site enhancements and ‘credits’ purchased from the Government. Whilst it will be necessary for site-specific information about habitats and species to be gathered in order to discharge this condition, planning permission will already have been granted by this time. One obvious concern is that detailed assessment at the planning stage might be watered down as a result of the White Paper, with the detailed work only being done when it is ‘too late’.

Finally, it should be noted that the Government has expressed an intention to strengthen protections that ‘make the most difference’ to nationally important species, habitats and ecosystems and ‘matter most’ to local communities. Does this imply a corresponding weakening of protections which are perceived to make less difference and matter less? Those who are particularly involved in this area of planning will no doubt await the more detailed autumn consultation with interest.

Heritage

The elevated status of listed buildings and conservation areas in the planning system has attracted its fair share of criticism. The combination of legislation and policy in this area means that heritage assets receive a high degree of protection, to a level which is not enjoyed by other environmental or cultural assets. Nevertheless, the White Paper sates that the system is working well, and the proposal is to build on the existing framework.

It is proposed that development management policy would come exclusively from the NPPF and not from duplicated local plan policies, and this change is to be welcomed so far as heritage is concerned. Local plan policies on heritage tend to add little to the more detailed provisions of the NPPF, and can give rise to arguments about consistency where they do not sufficiently replicate the NPPF.

The White Paper indicates one likely ‘tweak’ to current policy, to make it more “responsive” to proposals which involve adapting historic buildings to modern energy efficiency and climate charge mitigation standards so that they can be put to beneficial use. At present, matters relating to the alteration and re-use of heritage assets are often taken into account when considering public benefit under paragraph 196 NPPF, and optimum viable use in particular.

The White Paper implies more of a stand-alone policy on the beneficial re-use of heritage assets, not tied to issues of viability. It may be recalled that in 2018 the Government proposed deletion of the reference to ‘optimum viable use’ in the NPPF, but decided to retain it having received representations on the subject. It now seems likely that it will be replaced in favour of a more specific policy encouraging favourable treatment for proposals to adapt and re-use heritage assets. Again, this would be a welcome development; it is in no one’s interest for historic buildings to lie unused and deteriorating in the name of preservation a all costs.

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