Question to the Department for Environment, Food and Rural Affairs:

To ask Her Majesty's Government what assessment they have made of whether the use of Special Development Orders to give planning permission for inland border facilities in England meets their obligations under (1) the Aarhus Convention, and (2) the Kiev Protocol, to provide environmental information to the public.

Special Development Orders (SDOs) respect the public’s access to environmental information under the Environmental Information Regulations 2004 (EIRs). Information requests on SDOs and building the new facilities are likely to come within scope of the EIRs, as would most construction-related issues. This applies to requests and proactive disclosure.

The use of SDOs is provided for under The Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020. There is a provision in the Order for proactive disclosure of information to, and engagement with, a number of interested parties. The Order does not disapply measures such as EIRs or Freedom of Information Act that implement our Aarhus Convention obligations with regards access to information. Most requests for information on planning will fall within the scope of the EIRs, and thus the relevant parts of Aarhus: Articles 2, 4, 5 and 9. These are the definition of environmental information, handling requests for environmental information, proactive publication of environmental information, and the appeals process where the requester is not content with the response from the public authority.

There are two main routes for the information generated to be covered by the definition in regulation 2(1) of the EIRs:

1. The planning rules (and any adjustment to them through this Order) are measures and legislation under regulation 2(1)(c) that will impact upon the land and landscape under regulation 2(1)(a). Implementing the order will result in building works; breaking the ground for the new building, digging up the road to extend infrastructure, destruction of habitats, and the generation of waste and emissions. Other elements of the environment, such as air, water and biological diversity, may also be affected by the works permitted by the Order.

2. The second route is more direct: the construction works will be an activity under regulation 2(1)(c) that affect the land, landscape and the other elements of the environment in regulation 2(1)(a), as in point 1 above.

The Town and Country Planning (Environmental Impact Assessment (EIA)) Regulations 2017(8) state that EIA developments (which are not subjected to the SDO orders rules) must be subjected to an EIA. This must be submitted before the relevant planning authority, the Secretary of State or an inspector in order to grant planning permission. The EIA and screening procedures determine whether the development is likely to have significant environmental effects, along with the Environmental Statement applications. These are accompanied by publicity requirements such as public consultations and publication of environmental information prior to the decision of the relevant authority.

Finally, the Pollutant Release and Transfer Register (PRTR) is an inventory of pollution from industrial sites and other sources, and the Kiev Protocol requires that this information is publicly accessible. The UK maintains a publicly accessible national PRTR that enables the public to have access to environmental information concerning the activities listed in Annex 1 of the Protocol.

The UK remains committed to the objectives of the PRTR, both domestically and internationally, and continues to monitor its implementation of the Protocol.