Are the environment regulators fulfilling their statutory planning duties effectively?

The Environment Agency and Natural England responded to 31,046 planning application and pre-application consultations in 2018/19. Has their performance been good enough?

Official data for the performance of Natural England and the Environment Agency (EA) as statutory consultees in the planning process shows both are responding to the majority of applications speedily. 

Both organisations are charged with providing their opinion to local authority consultations on planning applications, or pre-application inquiries from developers, within 21 days. Extensions are allowed, but must be agreed by both parties. 

According to official data published in June, Natural England responded to many more planning application consultations in 2018/19 than the previous year. It cited a greater number of reconsultations on appropriate assessments under the Habitats Regulations, following last year’s landmark People over Wind ruling, as one reason for the rise. 

Despite this, the nature regulator responded to 96.8% of the 15,688 consultations within 21 days, or otherwise agreed deadlines, which was slightly up on 95.9% the year before. It also improved the average time taken to respond to applications, taking 13.5 days, compared to 14.6 the previous year. 

The EA’s data also shows solid performance on timeliness of responses, though this had declined from previous years. Despite receiving 1.5% fewer applications and pre-application enquiries, it took on average one more day to respond to the 14,237 consultations than in 2017/18, at 16 days. 

In recent years, both Natural England and the EA have focused more on giving advice to major, strategic applications. The EA says it screened out 12,797 consultations that it should not have received, to “focus our limited resources on responding more quickly to planning consultations and strategic plans for growth”.

Resource constraints

A closer look at the figures reveals the impact of resource constraints at the two organisations. Lack of staff or specialist expertise was blamed in 78% of Natural England’s missed deadlines, including those where an extension had been agreed, while 47% of requests for deadline extensions were due to lack of resources. In the EA’s case, resource issues were behind 81% of missed deadlines and 51% of requests for extensions.

Ben Stansfield, partner at law firm Gowling WLG, says he has experienced delays with the EA’s responses, where the proposals “weren’t at the top of their in-tray”. But none of these delays have been critical, he says, because other aspects of the application also needed further work. “In one case there was a bit of a delay in getting the application before the planning committee, but that happens so frequently that a lot of developers factor that in to their timetables,” he says.

Official performance data for both regulators only covers quantity, not quality. But this has been called into question. Last year, in evidence to the House of Lords committee on the Natural Environment and Rural Communities Act inquiry, consultancy Arup said Natural England’s planning application responses showed it was “certainly not successful in appearing to stand up for the environment in any way”, due to the “complete lack of funding and necessary support from central government”. 

‘Weakening approach’

Campaign group the RSPB also says it had witnessed “a significant weakening in Natural England’s approach to casework”, including a frequent failure to apply a detailed scientific approach to its advice, an increasing reluctance to object to applications and a reticence to appear at public inquiries. 

The RSPB has not seen much change in Natural England’s approach to the planning system since it wrote its evidence for the committee, says Andy Dodd, head of casework at the charity.

Hugh Ellis, policy director at the Town and Country Planning Association, says Natural England tends to rely on its standing advice on species when responding to applications. “But actually that’s not really very good, because individual cases need expert advice.”

Ned Westaway, barrister at Francis Taylor Building, agrees that Natural England is relying much more heavily on its standing advice. “It’s only really on applications that raise strategic issues that you’ll get more detailed responses from either Natural England or the Environment Agency,” he says. 

“They’re only ever doing a desktop review of an application – it’s very, very rare for either organisation to actually go out and investigate for themselves,” he says.

Compliance Search

Discover all ENDS content in one place, including legislation summaries to keep up to date with compliance deadlines

Compliance Deadlines

Plan ahead with our Calendar feature highlighting upcoming compliance deadlines

News from ENDS Europe

News from ENDS Waste & Bioenergy