WSP hosted a roundtable discussion on whether mitigation can be standardised, streamlined or tailored to meet the particular challenges of NSIPs.
The event was attended by legal, planning and environmental professionals representing promoters, statutory consultees, local authorities and consultancy practice.
The discussion focused on some of the challenges of delivering mitigation that can meet the tests set out in the NPPF and CIL Regulations - of making development acceptable; ensuring it is directly related to the development; and being reasonably related in scale and kind. It considered the difficulties in communicating mitigation to stakeholders given the myriad terms, crossovers between mitigation and compensation, the inclusion of mitigation into project proposals as an inherent part of the development and the relationship between environmental assessment and the policy tests. It considered the stages in the DCO process when mitigation is offered and agreed, and particularly whether there are opportunities to establish the acceptability of mitigation during in the pre-application phase whilst retaining flexibility for promoters to deliver innovative and responsive mitigation.
The main issues arising were:
- The Use of Terminology and Purpose of Mitigation
- Phased Mitigation
- Review of the Acceptability of Mitigation
- Distinguishing between Benefits and Mitigation Packages
- The link between the EIA terminology (significant impacts) and policy tests such as substantial harm can sometimes be unclear. Categories of mitigation (including but not limited to embedded, offsetting, compensation, and net gain) are many and the differences may not always be understood by stakeholders. There are crossovers such as noise mitigation and compensation, potential for duplication with other regulatory controls and approvals such as Habitat Regulation assessment, and not forgetting that some NSIPs are mitigation in themselves (transport congestion, improved water quality and climate change). Possible solutions may include preparation of a mitigation strategy or explanatory memorandum to accompany mitigation registers, which has clear definitions of the different types and the linkages with DCO Provisions, Requirements, s106 agreements and other forms of commitment. Where mitigation goes beyond that which is reasonably related to the development, practitioners have a role in setting out transparent calculations or explanations.
Research has suggested that not enough is done by promoters to involve people in shaping plans and impact mitigation. Statutory consultees have expressed a view that the National Policy Statements tend not to encourage better development and that more productive discussion could be gained from the earliest discussions about parameters and the balance of concerns. A number of projects have successfully negotiated pragmatic mitigation that adapts to changes in baseline and the experience during delivery (adaptive mitigation). The roundtable panel considered that more could be done to agree and present mitigation during pre-application stages (screening, scoping, and Preliminary Environmental Information Report) and that flexibility should be retained to allow for the potential for a better mitigation solution. Given that concerns are often related to the construction stage of NSIPs including their duration and scale of effects, promoters should consider engaging practitioners and contractors in preparing Construction Phase Masterplans to explore mitigation that could be achieved through layout and phasing of construction activities.
Best Practice Templates and Guidance on Securing and Describing Mitigation
The standardisation of management plans and presentation of mitigation was discussed with a view to improving understanding of what ‘best practice’ looks like and promoting consistency. Now that a number of projects are under construction there’s a good opportunity for promoters and practitioners to prepare management plans that are based on experience and monitoring evidence. It was suggested that NIPA and/or PINS collate examples of best practice or provide templates for Code of Construction Practices, Outline Construction Environmental Management Plans and reporting of monitoring.
Many felt that the positive aspects of a project are often forgotten in considering the acceptability of development and the adequacy of mitigation. Whilst there is no obligation to produce a Planning Statement, it was felt that a well drafted Planning Statement could be the right place for setting out a clear narrative for the approach to mitigation during pre-application. The role of the Design and Access Statement was also discussed, explaining how the design has developed over time in response to consultation and to record the iterative design process embedding mitigation within the proposals.
The need for a consistent project description (including a description of the mitigation) within all DCO documents, was highlighted with reference to PINs guidance.
Recent practitioner guidance published by IEMA was presented and discussed with reference to the orchestration of the EIA process, in tandem with project design development. The concept of presenting mitigation in distinct tiers to enable the reader to better understand the type of mitigation proposed and whether it is embodied in the project proposals or at a later point in the process was discussed. Guidance relating to the ‘narrative’ based approach described in the IEMA document, was explored where the process of project design and how mitigation has been incorporated is fully explained, resulting in a proportionate ES, assessing only truly significant effects having considered all proposed mitigation.
Several agreed that there is a strong focus from PINS on reaching consensus and a reluctance to adjudicate on points of genuine divergence between parties on the acceptability of mitigation. Promoters and practitioners have a responsibility to properly describe the design evolution and mitigation package in the Environmental Impact Report, clearly establishing principles to be captured in the DCO.
It was felt that independent design review has a role in validating what is considered to be ‘good’ design and that an independent review of design could be extended to include a more thorough review of the project’s mitigation strategy. It was noted that little reference is found in relation to good project design in PINs guidance.
The challenges of negotiating and securing a fair and reasonable package of mitigation were discussed. Many felt that there was pressure to provide mitigation beyond that directly related to impacts. The less experienced promoter and those promoters compelled to achieve consent to an immoveable deadline are potentially disadvantaged in these negotiations. Others noted that the tension between community funding and probity considerations had driven careful crafting of mitigation packages for ‘intangible impacts’. The requirement in the emerging Airports National Policy Statement that the applicant demonstrates how community compensation packages are administered to ensure that they are relevant to planning, was welcomed in this respect and again it was felt that there’s a good opportunity for promoters and practitioners to share their experience of delivering community funding and the monitoring findings of benefits packages as well as impacts.
There was support for NIPA to commission further research on mitigation and to produce a report along the lines of the recent NIPA paper ‘Effective National Infrastructure: Balancing Detail and Flexibility, to include some primary research on how mitigation is secured in DCOs, interviews with promoters, collation of best practice and engagement with PINs on the issue.