Guidance

Nationally Significant Infrastructure Projects - Advice Note Eleven, Annex D: Environment Agency

Published 16 November 2012

Applies to England and Wales

© Crown copyright 2012

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Introduction

The Planning Inspectorate’s Advice Note 11: Working with Public Bodies covers many of the generic points of interaction relevant to the Planning Inspectorate and the Environment Agency. The purpose of this Annex is to help Applicants understand the Environment Agency’s particular role in the Development Consent Order (DCO) Regime.

The Environment Agency has the power to issue permits, consents, and licences; the Annex explains in further detail why these regulatory applications may be required, in addition to a NSIP application.

It is strongly recommended that Applicants consider the timing of non-planning permit, licence, and consent applications for both operational and construction activities to avoid delay to their project.

This Annex will be kept under review to ensure that it remains relevant and up to date, for example because of future organisational or legislative changes affecting the Environment Agency and / or the Planning Inspectorate. The Planning Inspectorate welcomes feedback on the content of this Annex.

General statutory roles, functions, and powers

The Environment Agency regulates certain activities that have the potential to harm the environment and people. It decides if relevant environmental permits and other consents and licences should be issued and, if so, what regulatory limits and conditions should be applied. It monitors compliance with the permit / licence conditions and takes enforcement action if appropriate.

The Environment Agency’s regulatory, licensing, and advisory powers and duties derive (inter alia) from key Acts and Regulations, including:

Other obligations

The Environment Agency is also subject to the provisions of the Environmental Information Regulations 2004, the Data Protection Act 2018 and the Freedom of Information Act 2000.

Geographical extent of the Environment Agency’s roles and responsibilities

The Environment Agency’s responsibilities align to the terrestrial environment within England. In addition, it is responsible for regulating emissions to the marine environment within 3 nautical miles and for Environmental Permitting Regulations up to 12 nautical miles of the coastline.

Role of the Environment Agency under the PA2008

The roles and responsibilities of the Environment Agency under the PA2008 fall into the following categories:

  • Statutory consultee
  • Consenting body / authority

Pre-application consultee

The Environment Agency is designated as a mandated party for consultation purposes under the Planning Act 2008 (PA2008) and related secondary legislation, specifically under section 42(a) of the PA2008 and Schedule 1 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009. Additionally, it may become an interested party as outlined in section 102(1) of the PA2008.

Like other mandated consultees, the Environment Agency will input during the pre-application phase, following the guidelines outlined in Advice Note 11. The Environment Agency recommends that Applicants review relevant National Policy Statements and adhere to any policies regarding pre-application engagement with them. Furthermore, they recommend that Applicants start pre-application consultations at the earliest possible stage and factor in other regulatory requirements when planning project timelines to avoid delays. The Environment Agency also encourages Applicants to allow sufficient time to discuss and agree technical matters. For example, resolving complex flood modelling can take a considerable amount of time and Applicants are encouraged to consider the time needed to discuss and agree technical matters in advance of the submission of their DCO application to the Planning Inspectorate.

Cost Recovery

The Environment Agency provides environmental advice on matters that concern it. It currently provides Applicants with one free preliminary opinion for an initial enquiry and a free substantive response to the statutory consultation under Section 42 of the PA2008. All subsequent requests for the Environment Agency’s opinion and advice related to the DCO application will be subject to cost recovery. This currently applies at any non-statutory stage of the DCO regime. This manner of working is likely to change from April 2024 to reflect the proposals in recent government consultations and new powers contained in the Levelling-Up and Regeneration Act 2023 which received Royal Assent on 26 October 2023.

Environmental Impact Assessment (EIA) consultation body

The Environment Agency has a statutory role as a consultation body under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. Where an Applicant has requested a scoping opinion from the Planning Inspectorate in relation to a proposed environmental statement, the Planning Inspectorate will consult with the Environment Agency. The Environment Agency will make relevant information available to the Applicant (Regulations 10 and 11 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017).

The Environment Agency also encourages Applicants to discuss with them the scope of any environmental statement at an early stage to explore, for example, whether careful site selection / mitigation could minimise or eliminate environmental impacts.

To aid Applicants the Environment Agency will make available existing environmental baseline data and any environmental strategies that are relevant. The Environment Agency can advise Applicants on the proper scope for required environmental risk assessments / surveys.

Role of the Environment Agency as a regulator

The Environment Agency has powers to grant permits, licences, and consents. It is the responsibility of Applicants to identify all the permits, consents and licences that are required in addition to the DCO, before an NSIP can be constructed or operated. Doing so without an environmental permit is an offence.

The Environment Agency’s environmental permits cover:

  • Industry regulation;
  • Waste management (waste treatment, recovery, or disposal operations);
  • Discharges to surface water;
  • Groundwater activities;
  • Radioactive substances activities;
  • Flood risk activities (for example – placing structures in, under or over a main river and development close to main rivers and flood defences).
    • Water resource licences are granted for;
      • Abstraction of water from surface or groundwater
      • Impoundment of water

You may require a consent to investigate a groundwater source before applying for an abstraction licence.

Characteristics of environmental permits include:

  • They are granted to operators (not to land);
  • They can be revoked or varied by the Environment Agency;
  • Operators are subject to tests of competence;
  • Operators may apply to transfer environmental permits to other operators subject to a test of competence;
  • Conditions may be attached; and
  • They can be surrendered.

The Environmental Permitting (England and Wales) Regulations 2016 (EPR) require permits to be acquired by the lawful operator of the facility or activity that requires it. The lawful operator must have ‘adequate authority’ over the facility or activity. Below are some further resources:

Permitting Pre-application Advice

Where permits, licences or consents are needed, the Environment Agency encourages Applicants to discuss these at the earliest possible time. The Environment Agency supplies a limited amount of permitting pre-application advice free of charge. Further advice can be provided, subject to an hourly fee.

Undertaking pre-application advice can help to minimise the risk of requirements under EPR conflicting with the works authorised by the DCO (e.g. a stack of greater height than that authorised by the DCO could be needed) and the associated risks to implementation.

The Planning and Permitting Regimes

Where an environmental permit is needed, in addition to the DCO, under EPR, the preliminary opinion from the Environment Agency will also indicate one of three positions in relation to the likelihood of gaining the permit:

  • Position 1 – No major permitting concerns.
  • Position 2 – More detailed consideration is needed, and parallel tracking is recommended; or.
  • Position 3 – Don’t proceed – unlikely to grant a permit.

The same approach can be expected for abstraction or impoundment licences under the Water Resources Act 1991.

The Environment Agency will only be able to say whether it is likely to grant a permit when it issues a draft decision for public consultation, which it does for proposals considered to be of high public interest. This will only happen at an advanced stage in the permitting process (see appendix 1). As such, if the DCO and permit application(s) are not appropriately coordinated, there is a risk that the Environment Agency will be unable to comment on detailed technical matters raised by the Examining Authority during the examination of the NSIP application.

Timing of application(s)

Applicants are encouraged to consider the timing of their environmental permit application(s) in relation to their NSIP application to ease timely decision-making and to avoid delays in the project proceeding.

Parallel Tracking

This is the process of applying for an environmental permit from the Environment Agency along the same timeframe as preparing and submitting a NSIP application to the Planning Inspectorate.

If a permit or licence is critical to the operation of the proposed development, it is important to consider whether parallel tracking the permit and NSIP application is possible. This approach may supply greater certainty on permit decisions relevant to the NSIP application.

Where the proposed technology is well understood, and best available techniques are being used it is recommended that developers submit their permit application at the same time as the submission of the NSIP application, for example, if a permit or licence is critical to the operation of the proposed development. This will allow the Environment Agency to proceed with the assessments and to publish a full or draft decision, subject to further public consultation, before the NSIP examination closes. This approach is recommended. A depiction of how the DCO and EPR regimes can interlink is shown in Appendix 1.

Where the NSIP is proposing to use novel technology and there is only limited or no understanding of the best available techniques, early engagement and submission of the permit application will be key to align the permit decision (or draft decision) with the DCO examination. In such cases, and / or if a proposed development has the potential to affect a Habitats Regulations designated site, the Environment Agency recommends that permit application(s) are submitted in advance of the NSIP application.

Staged Applications

A staged application may be requested when there is not enough detailed information to apply early, but the Applicant wishes to parallel track their application. Preliminary assessments can begin with information that is available, and the Applicant must submit remaining data to an agreed timetable. This is discretionary and subject to an hourly fee.

Disapplication

Section 120 of the PA2008 allows the inclusion of non-planning consents, permits and licences to be included within the DCO, removing the requirement for the Applicant to apply for them separately. This is called ‘disapplication’.

Section 150 of the Planning Act 2008 states that for certain types of consents, the Environment Agency must give permission for the legislation to be included in the DCO. These consents are listed in Schedule 2 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015, this list includes many of the permits and consents issued by the Environment Agency.

If Applicants are seeking to disapply any of the permitting legislation, they should contact the Environment Agency as early as possible. The Environment Agency will consider requests to disapply on a case-by-case basis. However, when approached, there are some principles the Environment Agency will consider following a disapplication request:

  • The activity will have a low environmental risk,
  • The activity should either be temporary, or it can be agreed as part of the construction phase,
  • The activity will not require any on-going monitoring or subsequent enforcement of any defined limits,

  • The activity is unlikely to be classed as High Public Interest or has the potential to generate high public interest. The Environment Agency will decide whether an application is of high public interest on a case-by-case basis. To reach a decision, all relevant information is considered, including:

    • Whether the interest relates to issues regulated under an environmental permit,
    • The breadth and scale of interest – for example, the number of different sources such as individuals, interest groups, businesses, local councillors, media and whether there is ongoing engagement from the local MP
    • Whether the interest is, or is likely to be, sustained for a period of time.

The Applicant should provide sufficient information with their request to disapply for the Environment Agency to be able to make the above decisions about the activity.

When the Environment Agency have agreed to disapply their legislation they have developed a set of standard Protective Provisions, that are available upon request. It is important for the Applicant to note that the Environment Agency holds the ultimate decision and the right to refuse any request to disapply.

Competent authority

Applicants are recommended to seek the views of the Environment Agency on all the below technical areas, early in the pre-application process and to continue this engagement through to (and during) the examination of the DCO. Planning Inspectorate Advice Note 18 supplies further information.

Habitat Regulations 2017

The Environment Agency acts as the competent authority under the Habitats Regulations when assessing applications for permits, consents, and licenses for which it holds regulatory authority. In cases where an NSIP may have an adverse impact on European sites and requires a permit, consent, or license, the Environment Agency, alongside the competent authority appointed by the PA2008, must evaluate the probability and extent of these impacts. If considered necessary, the Environment Agency must then conduct a suitable assessment, which may involve consulting the appropriate nature conservation body, before reaching a decision in accordance with the relevant legislation.

By the Applicant involving the relevant regulatory bodies in this process, early discussions can be held on Habitats Regulations matters avoiding potential delay in the planning and consenting process because of missing information. Applicants are encouraged to coordinate their own consultation with Natural England on the Habitats Regulations assessments. Planning Inspectorate Advice Note 10 provides further information.

Water Framework Directive

The Environment Agency is also a competent authority for the Water Framework Directive (WFD) and has a general duty under the Water Environment (Water Framework Directive) (England & Wales) Regulations 2017 (the WFD Regulations). Regulation 3 requires the Environment Agency ‘to exercise its relevant functions so as to secure compliance with the requirements of the Directive’. The requirements for each river basin are set out in River Basin Management Plans (RBMP). The third cycle of RBMPs was published in October 2022.

Control of Major Accident Hazards

For the Control of Major Accident Hazards Regulations 2015 (COMAH Regulations), the Environment Agency, jointly with the Health and Safety Executive (HSE), is the COMAH competent authority. If Applicants are unsure whether the COMAH Regulations apply to a NSIP they should contact the HSE or the Environment Agency.

Adapting to Climate Change

The National Policy Statements emphasize that NSIPs must be resilient to climate change impacts. For instance, the National Policy Statement for Water Resources Infrastructure outlines government policy regarding climate adaptation. The Environmental Improvement Plan sets out Government’s commitment to ensure that policies, programmes, and investment decisions consider the possible extent of climate change. Climate change adaptation measures will be essential to the management of the impacts of climate change. These impacts include an increased risk of drought and flooding, drier summers and warmer wetter winters, more intense rainfall events and rising sea levels.

The Environment Agency encourages Applicants to consider the range of climate risks including flood risk, coastal change, water supply and biodiversity. An initiative-taking approach to assessing and managing these risks in the longer term should be taken by using current best practice methods, such as by following the requirements and guidelines set out in international standards ISO14090 and ISO14091.

Specifically, measures should be integrated to ensure that infrastructure is resilient to a 2°C warming scenario, as well as planning for higher scenarios, such as a 4°C rise in temperatures, where specific risks indicate a more robust approach is necessary. For flood risk, guidance supplies a steer to plan for a 4°C increase due to high risks and constraints to retrofitting adaptation. The Climate Change Allowances (CCAs) are part of the evidence base for flooding and supply a resilience framework to a 4°C increase by 2100. The CCAs should be used to inform NSIP DCOs, enabling Applicants to assess a range of future flood risk for fluvial, tidal and surface water. 

The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (see Schedule 3, paragraph 1 and Schedule 4, paragraph 5(f)) require that when screening Schedule 2 development the characteristics of the development should be considered in relation to the risk of major accidents and / or disasters relevant to the development, including those caused by climate change. They also require that any NSIP must include a description of the impact of the project on climate and its vulnerability to climate change. Specific guidance is given in relation to flooding, water resources and coastal change. However, it should be noted that to be resilient to current and future climate risks other types of weather hazard also need to be considered.

The Environment Agency has statutory responsibilities for hazards related to flooding, coastal erosion and water resources and an advisory role in relation to other weather-related hazards. This is summarised in Appendix 2, which also supplies a list of information sources for use in assessing and planning for each hazard.

The environmental statement should supply a concise explanation of how weather and climate-related risks have been considered. This should include details of planned resilience measures and where there is allowance / flexibility for future measures. This is illustrated in Appendix 3, which can be used as a template. Applicants should be explicit about the information sources used and assumptions made, be aware that climate science is reviewed and refined on an ongoing basis and make sure that the latest climate projections are applied where relevant.

Biodiversity Net Gain

Biodiversity net gain (BNG) is a strategy to develop land and contribute to the recovery of nature. It aims to increase and enhance biodiversity to gain positive outcomes from development.

Implementation for NSIPs currently stays planned for November 2025. Applicants are therefore encouraged to start considering how BNG will be included in their development proposals, especially those NSIPs likely to submit their DCO application after the implementation date or later.

Further information relating to BNG is linked below:
- Biodiversity Net Gain – GOV.UK - What you can count towards a development’s biodiversity net gain (BNG) – GOV.UK

Relevant reports advice and guidance

The Environment Agency’s website provides information on environmental topics relating to its statutory role and environmental regulation.

The Environment Agency has a Memorandum of Understanding with National Highways (previously Highways England) and Network Rail that is supported by technical guidance, which are relevant to highways and railway infrastructure proposals that require a DCO.

Contact Points

In the first instance Applicants should contact the Environment Agency’s National Customer Contact Centre:

  • If you are in the UK by calling 03708 506 506;
  • If you are outside the UK by calling +44 (0) 114 282 5312
  • By email at: enquiries@environment-agency.gov.uk
  • By mail at: National Customer Contact Centre
    PO Box 544
    Rotherham S60 1BY

Appendix 2: The Environment Agency’s climate adaptation role and sources of information

The Environment Agency leads on managing and responding to a range of climate risks associated with too much and too little water, principally that relate to flooding and water availability. The Environment Agency also have a role in tackling climate risks to freshwater habitats and species. The Environment Agency are on the front line in supporting communities to prepare for and respond to extreme weather and sea level rise.

The Environment Agency’s report, ‘Living better with a changing climate’, shows how climate change affects the country’s water resources and wildlife, and the risks of too much or too little water. Flooding (river, coastal, surface water, reservoir, groundwater) and coastal erosion are some of the major climate impacts that we need to prepare for. The Environment Agency use latest evidence to assess the current and future climate risks and plan how to deal with them. It is vital to act early and include measures to cope with future climate risks.

The following links provide more information:

Using local impacts evidence to identify location specific vulnerabilities

Local evidence of climate change impacts can be valuable in finding location specific vulnerabilities. Evidence bases relating to flood risk and coastal change include:   

  • Local Authority Strategic Flood Risk Assessments (SFRA) supply evidence for understanding the impacts of climate change on all sources of flood risk over the anticipated lifetime of development.
  • The CCAs inform SFRAs and reflect UKCP18. The three main components are peak rainfall intensity, peak river flow and sea level rise.
  • The National Coastal Erosion Risk Map (NCERM) shows coastal erosion rates for the short, medium and long term. These are complemented by Shoreline Management Plans (SMPs), Integrated Coastal Zone Management Plans and Shoreline/Coastal Strategies.

SFRAs bring together information on a range of sources of flood risk and coastal change and how they will be affected by climate change. They use the CCAs, the NCERM and SMPs to form a comprehensive understanding of flood risk and coastal change. The Environment Agency encourages Applicants to consider SFRAs to help ensure that NSIPs are resilient over the expected lifetime of the development.

Further information relating to flood risk is provided through the below links.

Applicants should make use of these information sources to understand and plan for these climate risks.

In terms of seeking bespoke advice, the following applies:

  • The Environment Agency has a statutory remit regarding risk of flooding from main rivers and the sea. It will appraise the standard of risk assessment and consider whether future climate risks have been considered properly.
  • For flood risk from small watercourses (not main river), surface water, reservoirs, and groundwater the Lead Local Flood Authority is the responsible authority and should be consulted for advice.

Localised evidence bases relating to water availability include:

The Role of the Environment Agency

The Environment Agency can advise on water resources pressures and climate change implications locally, but the local water company should also be consulted for advice.

Appendix 3: Assessing and planning for climate risks

As described in the National Policy Statement for Water Resources Infrastructure, the Applicant should take account of the policy on climate change adaptation as set out in the National Planning Policy Framework and supporting guidance. The Applicant should consider the potential impacts of climate change using the latest UK Climate Change Risk Assessment, the latest UK Climate Projections, and other relevant sources of climate change evidence. The Applicant should also ensure any Environment Statement and Flood Risk Assessment identifies proper mitigation or adaptation measures and how these will be secured. This should cover the estimated lifetime of the new infrastructure. The Environment Agency encourages Applicants to adopt this approach to inform all new NSIPs.

Consistent with our advice to inform Town and Country Planning related Development Plans and applications, The Environment Agency encourages Applicants to consider the below points.

  • Site choice needs to account for future climate change impacts. The Environment Agency recommends that Applicants consider reasonable worst-case scenarios when considering locations for new infrastructure. The CCAs provide these scenarios for flood risk. Development should be steered to areas with the lowest flood risk.
  • When developing new infrastructure, The Environment Agency encourages Applicants to incorporate new and connect to existing green and blue infrastructure. These can offer multiple benefits such as helping to secure improvements in water quality, and supplying resilience against climate impacts, such as flooding and overheating, whilst also supporting nature recovery.
  • Incorporate and ensure maintenance of multiple benefit Sustainable Drainage Systems (SuDS). SuDS’ can help reduce flood risk, enhance biodiversity and relieve water resources pressures.
  • Increased water efficiency standards. The Environment Agency supports increasing the water efficiency of infrastructure which reduces water use and cuts carbon emissions. In areas of serious water stress, or where other evidence justifies a tighter water efficiency requirement, The Environment Agency recommends for non-residential development BREEAM excellent standard.

More broadly, Applicants should be aware that the National Policy Statement for Water Resources Infrastructure states that design principles, such as those published by the National Infrastructure Commission (NIC) should be established from the outset of the project to guide the development from conception to operation. Specifically, the NIC’s Design Principles for National Infrastructure should be considered, which reiterates that good design should incorporate flexibility, allowing the project to adapt over time and build our resilience against climate change.

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