Royal Commission on Environmental Pollution

Thank you for giving SEPA the opportunity to comment on the proposal of the Royal Commission to undertake a study of Environmental Planning. This will be a useful piece of work, which will assist in clarifying the role of bodies such as SEPA and planning authorities in the decision making process. In addition, given the number of new environmental protection regimes which have recently come into force, or are due to come into force in the near future, this would appear to be an opportune time to carry out the study.

SEPA's comments are attached and I trust that you will find these helpful. If you have any queries, or wish to discuss any of the points raised in this response further, I would be happy for you to contact Joanna Douglas directly, at this address.

It is recognised that the Town and Country Planning system and the statutory environmental protection regimes are separate but complimentary systems in that both are designed to protect the environment from the potential harm caused by development and operations, but with different objectives. This has been clearly established in both Government guidance and in planning case law.

Despite this, further guidance is required to establish where the functions of the planning authority and the environmental protection bodies overlap, and how this should be best approached.

With the plan-led system firmly established as Government policy, and SEPA is one of the key partners in the preparation of development plans, guidance provided in PPG 12 highlights the environmental issues which should be considered in these plans. Several are relevant to SEPA's activities and are set out below:

• energy conservation, global warming and reduction of greenhouse gases;

• air quality and pollution;

• noise and light pollution;

• conservation and enhancement of wildlife habitats and species, including the promotion of biodiversity;

• policies for coastal protection, flood defence, and land drainage issues;

• the need to protect groundwater resources from contamination or overexploitation; and

• the environmental effects of waste and mineral extraction, processing and tipping operations

One of the topics identified by the Commission which will be considered as part of the study is b) the potential conflict between national environmental strategies and local interests. SEPA is currently preparing a National Waste Strategy for Scotland. This is not a land-use planning document, although planning authorities are required to implement the land use planning requirements of the strategy. One of the problems raised is that the implementation of the strategy will be partly addressed through the establishment of voluntary groups, encompassing a range of key partners. The National Waste Strategy, like many national strategies, requires this voluntary approach for its implementation. The Commission may wish to consider whether this is the most effective way for implementing such strategies, and if not, what other alternative arrangements should be made.

The study is also to consider f) the extent of gaps, duplication, co-ordination and conflict in present arrangements. These are key issues for investigation as the present arrangements often lead to confusion, and are not operating in the most efficient and effective manner.

Currently there is a lack of consistency in legislation in the relationship between the planning and environmental protection regimes. For example, under the provisions of the Waste Management Licensing Regulations 1994, planning consent must be secured before a waste management licence can be issued by SEPA. However, this is the only regime where this applies. Under the Integrated Pollution Control (IPC) regime no such requirement applies and an authorisation can be issued prior to planning approval being given. Both of these arrangements cause difficulties to all parties involved, as detailed below.

In considering an application for a waste management facility, SEPA is consulted by the planning authority on all aspects of the proposal. In one example, a planning authority was considering an application for a landfill site, and was seeking detailed views from SEPA as to the appropriateness of the liner design. SEPA gave this view and was challenged by the applicant that this advice was not appropriate for consideration by the planning authority as it would dealt with by SEPA when considering the application for the Waste Management Licence.

In another case, at a public inquiry into a proposed power station, SEPA were being pushed to state whether or not, in principle, an authorisation would be issued under the Integrated Pollution Control regime. Obviously this is not possible as not all the details of the processes were available for consideration.

These are examples of the expectation from both planning authorities and developers as to the advice which SEPA can give. There is a need for clear and concise guidance to ensure that all parties are aware of the advice which can be given and when it is appropriate to include that advice in considering development proposals. As mentioned earlier, there are also a number of new regimes which have just come into force or will be implemented in the near future, where the relationship between the planning regime and the environmental protection regimes is unclear. These include the Control of Major Accident and Hazard Regulations (COMAH), Integrated Pollution Prevention and Control (IPPC), and the new Contaminated Land Regime.

It would be useful if the study could look into these inconsistencies, and how current systems could be improved to ensure effective delivery of both planning and environmental protection objectives.

There is also read across to the preparation of Environmental Assessments. There was some brief discussion in the consultation papers for the implementation of the new Environmental Impact Assessment Regulations and the Integrated Pollution Prevention and Control Regime on the possibility of a joint Environmental Assessment covering both systems. This was a result of changes to the current IPC regime which will occur with the introduction of IPPC which considers the impact of the installation on the environment as a whole. However, this has not been developed any further and is perhaps an area which the study might also look at.

A final issue which may be useful to consider is related to devolution. Planning is a devolved issue and separate advice already exists in Scotland and in England and Wales. Scotland has a series of National Planning Policy Guidelines. (NPPGs), which are equivalent to the Planning Policy Guidance Notes (PPGs) issued by DETR for England. However, the one area where no guidance has been issued by the Scottish Office, now the Scottish Executive, is in relation to pollution control. No equivalent of PPG 23 is available in Scotland, although there is a Planning Advice Note (PAN 51) on Planning and Environmental Protection. The study should recognise the differences between the different administrations and any implications this may have for the environment.

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