A number of chambers’ clients are asking about the obligations surrounding the publicity to be given to Environmental Statements. We thought we would provide our views. For simplicity, we have only addressed the legal requirements set out in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.
An Environmental Statement (ES) is defined in Regulation 18(3) as a statement which includes, as a minimum, the information set out in paragraphs (a) to (f). The issue we address arises because of the publicity requirements for an ES.
These arise in different ways, depending upon whether the ES is submitted with the application or afterwards.
Where the ES is submitted with the application.
For an ES submitted with an application, the position is governed by Regulation 19. That requires the applicant to provide copies of the ES for onward transmission to the Secretary of State, for consultation bodies and for people of whom the LPA is aware and who might be affected by or have an interest in the application but who is unlikely to become aware of it by a site notice .
The LPA also has to comply with Articles 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO). Article 15(3) of the DMPO requires the LPA to publish a site notice and Article 15(10) requires the notice to be in the appropriate form set out in Schedule 3 to the DMPO or in a form substantially to the same effect. The prescribed form in Schedule 3, for use in cases where an ES is submitted with the development, includes references to the public being able to inspect copies of the application, plans, other documents submitted with it, and the ES, at a specified location, usually Council offices or another public building. The notice also sets out where copies of the ES can be obtained.
ES submitted after the application is made.
This situation is covered by Regulation 20 of the EIA Regulations. The Regulation requires the applicant to take various steps before submitting the ES. They include, in Regulation 20(2), an obligation to publish a notice in a local newspaper setting out that the application has been made, the address where the ES may be inspected and the address where copies of the ES may be obtained. A charge can be made for copies of the ES. The press notice must also set out that the ES can be found on the LPA’s website .
It should be noted that similar provision is made for cases where an ES is submitted to the Secretary of State during an ongoing appeal or call-in application  and for the publicity to be given to further information .
The upshot of all this is that there is an obligation to make the ES physically available for inspection and for the acquisition of copies of it. That is an obligation which is additional to the obligation to make sure the ES is available online .
Have these obligations been relaxed during the pandemic?
The short answer is no, they haven’t. There is nothing in the Coronavirus Act 2020 or any Regulation made under it which affects the position. Nor have the powers to make or amend Regulations contained in the European Communities Act 1972 and/or the Town and Country Planning Act 1990 been used to amend the obligations in the 2017 Regulations.
We can find no draft proposals to do so at present.
Can the obligation be sidestepped?
There is no legitimate way to avoid the obligation. It is clearly on the face of the relevant legislation and is written in mandatory terms. It would not be appropriate to seek to rely upon making the ES only available online, given that the obligation to provide for online access is a separate and additional obligation to that of making the ES available for physical inspection and for the provision of copies. No doubt the obligation to provide an ES for inspection was imposed because not everybody has access to the internet.
Not making the ES available for physical inspection and for the provision of copies would not be accepted by a LPA and, even if it were, would be very vulnerable to successful legal action if planning permission were to be granted without complying with the obligation, given it would be in clear breach of an unambiguous legal obligation.
So what is to be done?
The position in England can be contrasted with the situation in Scotland. The Scottish EIA Regulations  contain a similar requirement to make copies of the ES (called an EIA Report in Scotland) available to the public for inspection. The Scottish EIA Regulations have been amended by the Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020. Regulation 4 adds the following to Regulation 25 of the Scottish EIA Regulations:
“(4) During the emergency period the developer is not required by this regulation to ensure that copies of the EIA report are available for inspection at a place or address.
(5) For the purposes of this regulation, the “emergency period” is the period beginning on 24 April 2020 and ending on the date on which Part 1 of the Coronavirus (Scotland) Act 2020 expires in accordance with section 12 of that Act.”.
It appears to us that the similar powers to make and amend Regulations in England would have to be exercised to make a change to the 2017 EIA Regulations. The standard form of notice in Schedule 3 to the DMPO would have to be amended too. It is to be hoped that, notwithstanding the Government’s workload at this difficult time, that the English legislators can find time to make a similar change to that made in Scotland.
End Notes: Regulation 19(3) and (4).  Regulation 20(2)(f).  Regulation 22.  Regulation 25.  The obligations in the Regulations are neatly summarised in three paragraphs of the PPG: 4-043-20170728; 4-044-20170728 and 4-045-20170728.  The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.
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