On the 26th of October, the UK Government passed the Levelling Up and Regeneration Act (LURA) following over two years of work on the Levelling-up and Regeneration Bill (LURB).
The Act includes provisions that will allow the revocation of existing legislation on EIA and SEA through the provision of powers to replace these assessments by bringing forward new secondary legislation that will require Environmental Outcome Reports (EOR) in their stead. EORs will only formally replace EIA and SEA if and when Ministers decide to bring forward the necessary secondary legislation. There is no guarantee that this will occur. Minsiters change and so do governments.
However, the government’s rhetoric around these changes reflects their approach to ‘cut burdensome EU red tape which holds up assessments’. Whilst it’s true the EIA and SEA laws are transposed from EU Directives, EIA was actually invented in the United States of America.
The governments latest consultation on the introduction of EORs through the LURA was completed in March to June of 2023 albeit heavily criticised for its lack of detail. The Institute of Environmental Management and Assessment (IEMA), The Royal Town Planning Institute (RTPI) and the Landscape Institute (LI) all criticised the government’s proposals both in respect of need and for the benefit of the environment. It was recognised that improvement to the existing regimes could be made but they did not support their abolishment. The Office for Environmental Protection also supported these conclusions. Nonetheless we are where we are.
The lack of detail on what EORs will practically entail in the LURB has not been addressed in the adopted LURA.
All we know is that “EORs are to be written reports identifying (i) the impact of a project or plan on specific environmental outcomes and (ii) the steps proposed for the purposes of avoiding, mitigating, remedying or compensating for the non-delivery of an outcome”. The question is therefore how different would a new EOR regime be to the existing EIA regime?
We are therefore (a) not sure what the EOR regime will look like; and (b) whether EIA and SEA will also be replaced with near identical requirements to assess the same issues but with different terminology and procedures (or not).
What we do know is that the LURA includes a provision setting out a principle of non-regression. It requires any EOR Regulations not to result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law provided at the time LURA passed. What we don’t know is that, if and when the secondary legislation enacting EORs comes into place is whether EIA and Planning case law will or will not still apply.
There will be no certainty on the above until such time as Minsters decide to proceed with the secondary legislation enacting the introduction of EORs.
However, in the short term at least EIA and SEA will not actually disappear but will continue to apply for several years during a transitional period and for legacy projects.
To read more on the Levelling-Up and Regeneration Act please click here.
