The Rochdale Envelope

The Rochdale Envelope is an approach to consenting and environmental impact, named after a UK planning law case,[1]which allows a project description to be broadly defined, within a number of agreed parameters, for the purposes of a consent application. This allows for a certain level of flexibility while a project is in the early stages of development. As development progresses and more detail and certainty are available, further information regarding potentially impactful elements of the project can be provided.The UK’s Overarching National Policy Statement on Energy alludes to this approach, stating:

In some instances it may not be possible at the time of the application for development consent for all aspects of the proposal to have been settled in precise detail… the [Environmental Impact Assessment (EIA)] should set out, to the best of the applicant’s knowledge, what the maximum extent of the proposed development may be… and assess, on that basis, the effects which the project could have to ensure that the impacts of the project as it may be constructed have been properly assessed.[2]

The Infrastructure Planning Commission, citing the Encyclopaedia of Planning Law and Practice, expands on this concept, noting the following core propositions:[3]

- An application should acknowledge the need for details to evolve over a number of years, within clearly defined parameters and the EIA must take account of this and reflect the likely significant effects of such a project;
- the permission given must create ‘clearly defined parameters’ and the local planning authority, in granting outline planning permission, can impose conditions to ensure that the process of evolution remains within the parameters;
- the level of detail of the proposal, within the defined parameters, must be such as to enable a proper assessment of the likely environmental effects, and necessary mitigation ;
- ‘The assessment may conclude that a particular effect may fall within a fairly wide range. In assessing the ‘likely’ effects, it is entirely consistent with the objectives of [European Council Directive 85/337/EEC] to adopt a cautious ‘worst case’ approach: mitigation measures should be adequate to deal with the worst case so as to optimise the effects of the development on the environment;
- The flexibility is not to be abused and does not give developers an excuse to give inadequate descriptions of their projects;
- it is for the planning authority to determine what degree of flexibility can be permitted in the particular case having regard to the specific facts of an application. It will clearly be prudent for developers and authorities to ensure they have assessed the range of possible effects implicit in the flexibility provided by the permission.

This approach has been “used on numerous occasions in the application for development consents for offshore wind farms”,[4] as well as for other developments, in the UK.[5] The approach appears to be one that could be helpful to Marine Renewable Energy [MRE] developers, and MRE developers have begun using this approach in applying for consents. The envelope could apply, in the case of MRE, to the structural components of the turbine, e.g. rotor diameter, its operational characteristics, such as rotor speed, the physical footprint of the device, either the size of its foundations or the size of a proposed array, the design and layout of such an array and choices regarding construction and deployment methods etc.

One developer states that being able to broadly state the parameters of a proposed project in this was is an essential part of the planning process at these early stages of MRE industry development because it allows for improvements in technology: “once a project installation commences it needs to be making best use of available technology and take into account any new data that will help understanding of environmental impact”.[7] Committing to a detailed project design at the early stage of a project where construction is not likely to commence for a number of years would be restrictive for the developer and would not allow for continued improvement or for lessons to be learned from testing devices in the interim.

However, there are also drawbacks to the approach that need to be considered. The most pressing is that there is likely to be tension between the needs of developers and regulators when it comes to the allowable level of flexibility. This will be particularly true where the parameters of the envelope as defined by the developer are too flexible and broad because this may limit the regulators ability to undertake an accurate EIA.

Walker, discussing the application of the approach to offshore wind in the UK, notes that while regulators have shown a general acceptance of the Rochdale Envelope, this appears to have been based on the assumption that the level of flexibility specified is small and would allow for only minor variations in the final project.[8] This assumption means that the approach may not be “a solution to the current choices and uncertainties facing developers, and the requirement for an over-rigid project description, could result in either sub-optimal projects being developed, or substantial delays in construction” because developers may postpone their application until a final design or technology is decided upon.[9] Otherwise they may have to resubmit their application because the design parameters have changed. Walker therefore argues that a “broad and flexible approach to the interpretation of the Rochdale Envelope is therefore seen as imperative”, but striking the balance will not be an easy task.

[1] In fact two cases: R. v Rochdale MBC ex parte Milne (No. 1) and R. v Rochdale MBC ex parte Tew [1999] and R. v Rochdale MBC ex parte Milne (No. 2) [2000].

[2] Department of Energy and Climate Change, “Overarching National Policy Statement for Energy (EN-1)” (2011), 47.

[3] Infrastructure Planning Commission, 2008 “Using the ‘Rochdale Envelope’” (2011), 2–3 (internal citations omitted).

[4] Triton Knoll Offshore Wind Farm Ltd, “Triton Knoll Preliminary Environmental Information” (2008), 35.

[5] The Rochdale cases themselves, for example, regarding an application to develop a business park.

[6] Brough Head Wave Farm Limited, “Brough Head Wave Farm Scoping Report” (2011), 15.

[7] Beverley Walker, “Managing uncertainty” (2012) .

[8] Ibid.

Comments

Carol (2014-04-16 19:33:02): Thanks for a concise and informative explanation of the Rochdale Envelope. Very helpful to an engineer who needs to work within one.