Ambiguities and conflicts of interest currently plague the role of the Environmental Clerk of Works (EnvCoW). This, along with deficiencies in the existing Impact Assessment process and other environmental legislation, especially in the areas of monitoring and reporting during the construction phase, make it challenging to ascertain the effectiveness of mitigation measures and compliance.
Our recent article, “The future of construction phase environmental management and the changing roles of the Environmental Clerk of works”, discussed the changing landscape of environmental policy and the likely impacts on the construction sector. Today, we’d like to delve a little deeper into the challenges and proposed solutions to ensure that future development activities work in harmony with environmental protection goals.
Why it matters
When the Office for Environmental Protection (OEP) released their report - ‘A review of implementation of environmental impact assessment regimes in England’, OEP Chair Dame Glenys Stacey stated, “The environment is under serious threat. We continue to see extremely worrying and persistent trends in environmental decline, with some increasingly difficult to arrest.
But “Development need not be at odds with the environment. That is why environmental regulation is so vital – but it must be good regulation, and well implemented.”
While there is little doubt that we must improve our infrastructure to transition to a low carbon economy and stimulate economic growth, this requires construction, and lots of it. However, it's important that these construction activities themselves do not harm the environment they are ultimately meant to protect.
The Impact Assessment process is designed to mitigate environmental impacts. In addition to the Impact Assessment process there are numerous environmental laws in place to protect the environment too. However, both the OEP and Heads of Planning Scotland (HoPS) reports have identified that there is insufficient monitoring and reporting during the construction and operational phases. This makes it difficult to confirm whether the impact assessments' conclusion of 'no significant impact' is accurate, or whether the activities comply with broader environmental laws.
The challenge is, how can Impact Assessment practitioners be sure that the mitigation measures they propose are effective and represent good practice if there isn’t any publicly available, quantifiable evidence to say that it does. This thought is backed by a 2021 study which found that most ecological mitigation measures proposed in an Impact Assessment are not evidence based.
We often assume that planning and environmental legislation will be complied with. However, regulatory bodies face significant funding challenges and increasingly rely on self-reporting and public complaints rather than conducting actual compliance inspections. The OEP report confirms this, stating that monitoring conditions are often either missing from consents or are inadequate. Enforcement is rare and usually initiated by public complaints rather than proactive monitoring or auditing by local planning authorities or regulators. The PAS report also supports this, noting that monitoring is generally reactive and only occurs when complaints are received.
The HoPS positioning statement – The Environmental Clerk of Works
What’s changed?
Nothing, yet everything.
As defined by the Association of Environmental Clerk of Works (AECoW), The Environmental Clerk of Works role (EnvEoW), has always been “an environmental professional with responsibility to monitor and report on environmental compliance”.
However, time and the absence of clear and consistent guidance from local planning authorities and the broader industry has led to varying interpretations of roles and responsibilities. This puts the EnvCoW in a difficult position, as they are often expected to fulfil multiple roles for various stakeholders. This creates an inherent conflict of interest, as they become responsible for ensuring, designing, advising, surveying, monitoring, and then reporting, on a project’s environmental performance.
The current procurement process, where the developer or contractor directly engages with the EnvCoW, further complicates matters. Reporting is commercially linked to the contracting party, and unless it’s mandatory to submit the EnvCoW report to the consenting body, these reports may never see the light of day. Under this arrangement, it would also be naïve to think that the EnvCoW reports aren’t at risk of being influenced by their employer.
The HoPS position statement aims to make the EnvCoW role consistent and conflict free. While reinforcing the role – what it is and what it is not, it also proposes several changes:
The EnvCoW will be engaged by the Consenting body but funded by the developer.
The EnvCoW reports to the consenting body, the developer, and the contractor simultaneously.
Thresholds for when an EnvCoW should be engaged have been set.
Minimum number, and frequency of site visits.
The EnvCoW reports will be uploaded to the Planning Portal to allow public viewing.
What does the HoPS Positioning Statement mean for me?
If you’re a Consenting Body
The Positioning Statement clarifies the purpose of the EnvCoW, how it interacts with the planning system, and the benefits it brings to the consenting body. The EnvCoW system enables the independent collection of compliance data. This informs the Planning Authority whether the project aligns with approved environmental mitigation measures and reports any non-compliance or exceedance of predicted impacts.
If an EnvCoW report identifies a breach of planning conditions or other regulations, the consenting body can take appropriate action. This could involve handling the issue themselves or referring it to another competent authority. Any breaches will necessitate corrective action from the developer. The EnvCoW will then confirm that the remediation aligns with the design or specifications provided by the developer.
To ensure independence, the consenting authority will directly engage the EnvCoW but will require a financial commitment from the developer as a condition of consent. The EnvCoW will submit their reports to the consenting body, the developer, and the contractor at the same time. The consenting body will also make these reports publicly available on the online planning portal.
If you’re a Developer
If you’re a construction contractor
If you’re an EIA consultant
If you’re a practitioner
In summary
Simon Knott has dedicated his career, and business, to affecting positive change across the construction sector providing dedicated environmental support for over ten years. Leveraging this deep expertise, he was a significant contributor to the HoPS Positioning Statement which aims to bring clarity to the role of the EnvCoW, to support greater transparency and improved monitoring practices for construction projects.
As mentioned above, with this positioning statement nothing, and everything has changed. If you’d like to gain greater clarity on how this could affect your next project, please don’t hesitate to get in touch.
If you'd like your own copy of this article to refer to in future, you can download it here.
