By Douglas Johnson
January is likely to be remembered as a month of departures – including those of Terry Jones, Nicholas Parsons… and the UK from the EU. It was amidst these more headline-grabbing developments that the Environment Bill returned to Parliament last Thursday to somewhat less fanfare. This was timely – the Bill is a flagship piece of post-Brexit legislation designed in large part to replace the role currently played by the EU in environmental protection.
Amongst the Bill’s provisions is the introduction of a new enforcement mechanism for environmental law, the Office for Environmental Protection (OEP). The powers granted to this body and the way it operates have clear implications for anyone bringing forward new infrastructure or development – and those communicating about them.
What will it actually do?
The OEP’s remit will effectively be to enforce public authority compliance with environmental law. The trigger for enforcement will be a failure to comply with environmental law – this can be proactively identified by the OEP or by a complainant. As the Planning Inspectorate and local authorities are public authorities, we can assume this introduces a potential trigger for challenge to the handling of DCO applications, Local Plan making, and planning applications.
More broadly, it’s unclear how the OEP – and other provisions in the Bill – will interact with the existing planning regime. To date the regime established by the Planning Act 2008 has in effect stood alone, providing clarity for applicants and other parties involved in the process. The ambiguity of how requirements in the Environment Bill will interact with this has the potential to cut across this and introduce complexity – which regime takes precedent?
Bark or bite?
It is unclear how effective the OEP will be. Its enforcement powers are relatively limited, with no duty to comply with a decision notice issued by the OEP included in the Bill. The only recourse the OEP has after this is an Environmental Review – effectively a small-scale Judicial Review conducted by the OEP’s Upper Tribunal. Depending on how well resourced the OEP is, it may not always be willing to pursue matters this far. More generally, it is hard to see the OEP carrying as much clout as the European Commission – both in terms of its ability to pursue complaints and in the respect accorded to it by other stakeholders.
Much here may depend on the approach the OEP takes to its role, and the individuals there who determine this approach. Will it simply act as a resolution body for complaints, or will it be more proactive – submitting representations, responding to consultations, turning up to DCO examinations where those points are in question? The Committee on Climate Change is a good example of a government watchdog that has been willing to criticise decision-makers in strong terms. Whether the OEP takes a similar line will depend on how it is led, managed and resourced.
A challenger’s charter?
The complaints mechanism offered to the OEP and the introduction of the Environmental Review will offer other opportunities for opponents of development to challenge schemes. Depending on the details of the process, some may view these as a cheaper and easier alternatives to seeking a Judicial Review of the scheme.
So, like Terry Jones’ Spanish Inquisition, it may take some time for the way that the OEP will operate to become clear. Elements of this may be fleshed out as MPs scrutinise the Bill in Parliament but, in reality, it’s likely to require the OEP to be up and running before a full picture emerges – making engaging with the OEP an essential task for developers in coming months.