UK: The Environmental Minimum Information Requirements

Last Updated: 6 December 2013
Article by Nicola Jordan

Our last blog entry focussed on the many documents making up the Environmental Statement (ES) which was deposited with the hybrid Bill last week.

In this blog entry we take a closer look at some of the other documents deposited: the Environmental Minimum Requirements (EMRs).

The EMRs are a set of five "framework documents" which set out the high level environmental and sustainability commitments that the Government intends to enter into through the hybrid Bill process. HS2 Ltd has stated that these documents have the following roles:

  • to define the mechanisms by which the nominated undertaker (the body or bodies appointed by the Secretary of State for Transport to construct HS2) will engage with communities and other key stakeholders; and
  • to implement environmental and sustainability management measures designed to protect communities and the environment during detailed design development and construction.

The non technical summary of the ES states that the 'EMRs will require HS2 Ltd and its contractors to adopt measures to reduce the adverse environmental effects reported in the ES, provided that such measures are reasonably practicable and do not add unreasonable cost or delay to the construction or operation of the project'. In effect, the EMRs set out the rules that the nominated undertaker will have to comply with when it works up the detailed design and constructs HS2 , and also the mitigation works that the Government actually intends should be carried out. As such, they will be especially important for affected parties to get to grips with, and deserve more attention than they may have received so far.

The five documents which make up the EMRs are:

  1. Draft General Principles - which explains what the EMRs are in the context of HS2 Phase One;
  2. Annex 1: Draft Code of Construction Practice (which is included in Volume 5 of the ES) – this document, which will be finalised when the Bill is enacted, sets out the specific details and working practices for all engineering and construction activities and contains the arrangements by which the nominated undertaker and any contractors will be required to work. Among other things, it requires the nominated undertaker to bring forward "local environmental management plans" to set out its site-specific proposals for each local authority area, although these do not seem to need to be approved by the local authorities;
  3. Annex 2: Draft Planning Memorandum – In our blog entry 28 containing a brief analysis of the main provisions of the Bill, we explained that the Bill grants deemed planning permission for the HS2 works, and creates a two-tier regime for planning authorities approving matters under the conditions that apply to the permission. The planning authorities who agree to sign up to this Planning Memorandum and co-operate with HS2 Ltd will be able to approve the detailed design of permanent structures such as stations and viaducts, and also have an enforcement and approval role in relation to certain construction matters. Those choosing not to sign the Planning Memorandum will only be able to approve the detailed design of permanent structures, and will have a more restricted role in the approval of construction matters. The draft Planning Memorandum itself sets out the undertakings which planning authorities will have to give in order to qualify for the wider approval roles. In essence, it is like a one-sided Planning Performance Agreement: the planning authority agrees to co-operate with other authorities in a Planning Forum, to make dedicated staff available for HS2 matters, to deal with applications quickly, and show due deference to the national importance of HS2. Unlike most PPAs, the Government does not undertake to fund this extra work, although it does commit the nominated undertaker to engage in discussions about its forthcoming applications "whenever reasonably practicable". If a planning authority refuses approval, the nominated undertaker can appeal to Ministers, who will determine how their own scheme will go ahead;
  4. Annex 3: Draft Heritage Memorandum – this document provides a framework for the nominated undertaker, English Heritage, local authorities and other stakeholders to work together to ensure that the design and construction of HS2 is carried out with due regard to heritage consideration. Again, the Memorandum is high-level, although it does require the nominated undertaker to have regard to the NPPF's provisions on heritage, and to draw up agreements with local authorities and English Heritage setting out out how it will undertake works that would normally need listed building or scheduled ancient monumnent consent. If the nominated undertaker stumbles across an unexpected heritage site which is of national signficance, it must stop work for 28 days while the local authority, English Heritage and central government decide what to do about it; and
  5. Annex 4: Draft Environmental Memorandum – this document provides a framework for the nominated undertaker and representatives of the National Environment Forum to work together to ensure that the design and construction of HS2 is carried out with due regard to environmental considerations. It is set out in very general terms, as many of the specific proposals in relation to environmental controls are contained in the Bill itself (for example, the protective provisions for the Environment Agency), the CoCP, and the local environmental management plans.

Our fourth (and final!) blog entry on the documents deposited with the hybrid Bill will look at the Information Papers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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