Royal Commission on Environmental Pollution

We are of course only too pleased to assist the Commission further in this study, and to note the key themes that have emerged since both our initial response (my letter to Davis Lewis in November last year) and the seminar that was held in February this year. There are however a number of points that we have made previously, and thus I hope you will forgive any repetition of that earlier response, or of what I said at the seminar - such remarks are included here on some issues merely for the sake of completeness. And, as advised, we have certainly not attempted to answer all of the questions: the majority are clearly aimed primarily at those who are directly involved in the planning process.

1.       Environmental sustainability

The Commission recognises that sustainable development has economic, social and environmental components. Within that framework the Commission sees its particular function as to ensure that environmental sustainability is not being prejudiced. In this case the Commission wishes to investigate the extent to which current environmental planning systems promote or prejudice environmental sustainability.

1. Has the pursuit of sustainable development as the broad objective of policy had favourable or unfavourable consequences for protection of the environment? To the extent that consequences have been unfavourable, how could that best be remedied?

2. Can environmental objectives always be balanced against other issues or are there environmental imperatives? If so, how are they (or how should they be) determined?

3. What regulatory approaches are likely to be the most effective and practicable to protect the environment, in both measurable terms, e.g. water, soil and air quality, and less tangible aspects, e.g. landscape and amenity?

4. In practice, to what extent does land use planning still embody a presumption in favour of development? Has the legislative change to a plan-led system given land use planning the potential to become a more effective instrument for achieving environmental sustainability? Is any further change necessary, and, if so, what?

5. In practice, how far have planning regimes in general moved from "predict and provide" to "plan, monitor and manage" to avoid environmentally unsustainable outcomes?

6. Do current arrangements for environmental planning sufficiently take into account the cumulative impacts of developments?

7. To what extent is effective environmental planning hindered by a lack of resources within central government and local government, statutory agencies and advisory bodies? Have the procedures become too complex for any institution to cope adequately?

8. What are the implications of long-term risks, such as those posed by climate change or persistent waste, for environmental planning? Can planning systems become drivers for limiting the extent of damage from unavoidable climate change?

9. To what extent does the achievement of environmental sustainability depend on permitted uses being time limited?

At the moment, it would seem that the pursuit of sustainable development has probably had a varied impact, for several reasons. In some cases - as for the Environment Agency - it is the principal, over-arching requirement, enshrined in law. This duty has served the Agency well. In other cases, however, it would appear that the concept of sustainable development is seen merely as yet another factor to which one has to have regard. Sustainable development is also still seen to be largely aspirational rather than couched in firm objectives or outcomes that relate to the world around us. But without such objectives or outcomes there are no common long-term goals. In this respect, therefore, land-use planning is still seen as an activity without any clear, overall, objective that relates to the broader pursuit of sustainable development.

Local Planning Authorities (LPAs), the Agency, and an increasing number of other bodies and organisations do however have a remit to promote, or to contribute in one way or another to the achievement of, sustainable development. Each is doing so within its own system with plans, strategies, and various regulations, be it at a national, regional, local or site specific level. The result is, inevitably, a piecemeal approach that lacks coherence. The different time scales used for the plethora of plans and strategies rarely coincide, which often reduces their relevance and their usefulness.

All of this is not helped by the legislative framework, either in day-to-day practice or in the clarity of long-term aims. Thus development planning is essentially concerned with assisting economic growth and social development, placing as few impediments as possible in its path, whereas environmental legislation is often seen as restrictive and aimed primarily at constraining local development, albeit for the longer-term good of the environment. The two are, of course, intended to be complementary; but this is not always the perception. What is lacking is a common vision or understanding of the sustainable capacity of the environment - on various time and spatial scales - to absorb such development without compromising its short or long-term quality, or the range of choices for its subsequent use. This difference is also reflected in the fact that we, the Agency, are required to take a precautionary approach in relation to environmental licensing, whereas 'demonstrable harm' has to be shown for a planning application to be turned down; clearly these approaches to decision making are at odds with one another.

In terms of relating environmental planning to environmental sustainability, therefore, it would appear necessary for the former to attempt to:

At present, this activity does not appear to be taking place at any level of government. Land-use planning still embodies a presumption in favour of development, does not take account of cumulative impacts, and does not take account of environmental impacts. There are many examples of all of these, including the allowance of past and future developments in

It is however fair to state that there is not a single path to tread in relation to environmental planning. In our own consideration of such issues ^[1] we have outlined some broad, long-term objectives. Achieving them will be a journey for which one can only set certain boundaries. In some cases these are directly measurable - such as limits to abstractions and discharges as laid down in environmental licences. In other cases it is more difficult, but factors that affect features such as landscape and amenity can be measured, and we would like to see 'monitoring' programmes adjusted in order to assess human impact on the environment as perceived - literally and metaphorically - from different points of view ^[2].

There is no doubt that planning procedures have become too complex, and in this the terminology does not help. Virtually everyone - including the professional - needs a dictionary and a list of acronyms to understand the multitude of classification schemes, designated areas, and so on arising from EC, national, and other sources. All of these often apply to the same spot of land.

It is therefore not surprising that conflicts arise, and that long-term planning is inadequate and thus does not allow for such factors as climate change. Indeed more consideration needs to be given to the means by which the potential impacts of climate change can be explained and translated into likely consequences at a regional and local level. In some cases this can be done - for flood defences and water resources - in terms of probability over different periods of time. And this raises another weakness. The existing planning system is designed to give black-and-white answers to questions; it is not good at dealing with uncertainty. It is therefore essential for it to operate within a framework of an expectation of change and, therefore, to place time-limits on those activities that could be affected by such change. Water use is a good example.

2.      Boundaries

The Commission wishes to investigate whether administrative boundaries and the way environmental planning is sub-divided between policy areas are hindering the pursuit of environmental sustainability.

1. To what extent does a mismatch between administrative areas and environmental processes contribute to environmentally unsustainable planning, for instance in river catchments or along coastlines? What should be done about it?

2. What problems arise from different plans being produced and implemented for overlapping geographical areas?

3. Should the land use planning system be responsible for helping to deliver policy targets in other areas such as transport, energy, water provision, flood protection, climate change and nature conservation?

4. How might geographical information systems (GIS) contribute to environmental planning in both the short and long term? What problems are associated with data accessibility and quality, and how might they be addressed?

5. Does the lack of control over certain activities, such as forestry and agriculture, prejudice the achievement of environmental goals? If so, what would be the effect of introducing such controls?

Devolution inevitably carries with it the risks of inconsistency of approach. We have yet to see an overall guidance framework - encompassing all the facets of sustainability - plus its interface with EC and national legislation, and guidance relating to planning and environmental licensing, that would ensure a timely nationally consistent approach, applied at a local level. The gap between 'thinking globally' and 'acting locally' - in concept and in practice - is thus still immense. Better use should therefore be made of development plans as contributors to national strategies as well as mechanisms to support delivery of local needs. Local authorities should then be made more accountable if they go against the national strategies. Local authorities that are net exporters of waste could - for example - then be "penalised" in some way to ensure that they pay for the full environmental costs of such exports, rather than being allowed to increase pressure in other areas to use land for waste disposal. They should also be financially responsible for flood defences when they allow developments to take in flood plains against the Agency's advice. Regional assemblies could provide an audit role in this respect. They should also be charged with trying to bridge the gaps between national strategies and local initiatives, where such gaps exist. And when targets are set nationally, it should always be clear as to how they should be translated into local plans and actions, so that both their delivery, and the method of delivery, can be audited.

Auditing requires sound information. With current information technology (GIS), it is possible to compile and display information on any geographic basis. Statistical information is routinely collected by the Office of National Statistics, with rigorous standards for quality control. Each set is usually collected for a different purpose, and thus on a different geographic basis. The problem is thus not so much one of quality control - this can be addressed, where necessary - but one of knowing what the relevant questions are and of collecting the answers on the relevant geographic scale. At present, data are collected on a number of geographic bases in isolation from each other. The Agency has established an informal Collaborative Forum for Environmental Monitoring that meets regularly in order to encourage the exchange of, and better compatibility of, environmental information amongst the members. We have also established our own Centre for Environmental Data, Monitoring and Surveillance and maintain a large range of environmental and social information on our web site, variously broken down on national, regional, local and - in some cases - a post-code basis. Much of this has been done without a statutory need to do so, and it applies only to England and Wales. There is no UK equivalent.

We consider this approach - an improved information base - to be the first step necessary to link the multitude of activities affected by land-use planning with those that are not included, such as forestry and agriculture. If the inter-related consequences of all such activities were better understood, then the supposed need for more regulatory control could be sensibly assessed. The same applies to other issues such as transport and energy production. Simply changing the planning system, without improving the nature and relevance of the information, will make little difference. And yet neither national nor local government appears to be eager to fund the necessary changes to data gathering, and its interpretation, across the UK as a whole.

3.      Integration or coordination?

Different environmental planning regimes have grown up over time to serve different objectives. The Commission is interested in how well the current arrangements work as a whole.

1. Does the current system need "fixing"? What gaps, unnecessary duplication and conflicts exist in present arrangements for environmental planning?

2. Is there in practice a hierarchy in the formulation of different types of environmental plans? Would there be advantages in establishing a clearer hierarchy?

3. Should the process of environmental planning be further integrated or rationalised, e.g. as in New Zealand? Or would better coordination be sufficient to ensure an efficient and effective system?

4. Are present arrangements for environmental planning efficient and cost-effective? Can the wish to speed up the land use planning process be reconciled with effective environmental protection?

5. Are the mandates and procedures of the pollution control bodies appropriate to their environmental planning responsibilities? Are these responsibilities appropriate? Is it practical to have parallel decisions on land use planning and pollution control?

6. Has a satisfactory integration of transport planning and land use planning been achieved? If not, what more needs to be done?

7. To what extent could economic instruments, non-statutory procedures, or informal arrangements complement environmental planning regulation, and how effective would they be at providing environmentally sustainable solutions? Would there be implications for openness, transparency and accountability?

8. One possible economic instrument could be a "betterment tax" aiming to increase public ownership of development gain. Is such a tax feasible and desirable? Might there be some way of linking the rate of tax to environmental impact?

9. Does the adoption of sustainability as the focus of policy intensify disagreements about the boundary between public and private development rights and obligations? To what extent does the current system enable such issues to be resolved?

Bearing in mind that most major developments require both planning permission and one or more environmental licences, both the applicants and the public are often confused - even more so with the added complications of building control and development control. They also object to the apparent added bureaucracy, and hence cost. To be fair, the Town and Country Planning process is more democratic, open, and transparent compared with much of environmental licensing, and there is a planning appeals' system in place.

The Town and Country Planning system is pivotal to environmental planning, often providing the link between different regimes and enabling decisions to be made in the democratic arena. There are however instances, relating mainly to procedures and interfaces, where difficulties and obstacles are encountered that could usefully be addressed to provide future guidance and clarity. Present government advice is that land-use planning and pollution control regimes should not result in a duplication of controls. But the practicality of this is difficult. Existing guidance needs to be clearer and stronger to enable the appropriate bodies to make informed decisions. At present, the so-called parallel tracking of planning applications and environmental licences is encouraged but not mandatory. If it was formalised, so that planning applications and licence applications were submitted simultaneously, many of the existing problems would be reduced. With appropriate collaboration, public concern could also be managed better during this process. It is often difficult to judge the pollution consequences of proposals fully at the planning stage because of a lack of detailed information. We have therefore consistently argued, alas to little avail (for example in discussions on IPPC implementation) for closer alignment ("parallel tracking") with pollution permitting. But while the Agency is a statutory consultee in development planning, comments are only advisory and are often ignored.

The perceived duplication of controls is also an area of concern with respect to planning appeals. In a number of cases we have been asked to appear as a witness at planning inquiries to answer questions relating to pollution control that are dealt with under the Agency's regulatory regimes, and to which we therefore have no objection. In these cases the Planning Inspector appears to be moving beyond the realm of Town and Country Planning, contrary to government advice. Again, greater clarity on the role of all parties would help to streamline the process. In fact, the appeals process for planning and environmental licensing could be combined to increase openness and allow greater scrutiny of the overall regulatory system.

If there was a nested, hierarchical set of environmental or sustainability plans - if only loosely constructed - then it would be much easier to assess the potential value of economic instruments, non-statutory procedures and so on. All of these are essentially tools to enable one to achieve desired outcomes in the most cost-effective, or most democratically acceptable, manner. But they do not help to determine what the outcomes should be, although they can help to model what the outcomes might be, if certain actions were taken. Where changes in behaviour are sought via economic instruments or taxes, the benefit (or disbenefit) has to be large in order to have an effect, and there is usually a reluctance to introduce such measures.

One particular problem that we are familiar with is the case where there are no compensation arrangements for 'managed retreat' from existing flood defences, where the cost has to be borne by a few - whose property would have to be abandoned - and yet the advantages of so doing would apply to the local community as a whole.

4.       Subsidiarity and democracy

The Commission is interested in the accountability and transparency of environmental planning regimes. There is often an inherent tension between delivering national policy targets and ensuring adequate local accountability in the vicinity of a development. Indeed policy targets themselves may be controversial. National targets may impose local environmental degradation against the wishes of the local population. On the other hand, the sum of local planning decisions across the country may not deliver national environmental protection targets. The Commission is also keen to ensure that decisions are taken at the most appropriate level with an appropriate range of inputs to the decision making process.

1. Is the current balance between elected leadership, expert assessment and public participation in environmental planning decisions appropriate?

2. How do we ensure that all levels of decision-making processes are sufficiently open, transparent and accountable to gain public acceptance? What are the best ways to reflect the range of public opinion whilst maintaining an appropriate procedural timetable? When should local public opinion be overridden in the interest of a broader common goal?

3. What should be the relationship between international, national, regional and local goals? Should environmental planning take place at the lowest level consistent with the common good (the principle of subsidiarity)? How far do current arrangements depart from that principle?

4. Are new regional planning arrangements, or other measures such as strengthening the strategic planning role of local government, needed to ensure greater coherence between national and local planning regimes? If so, what should these be and how should they be made accountable?

5. To what extent do the principles of the environmental planning regimes in England, Scotland, Wales and Northern Ireland need to differ from each other? What are the specific drivers for these differences?

6. Does the present form of planning inquiry offer the best way of resolving disputes? Should it be extended to permit a third party right of appeal? If so, should such rights be restricted to prevent abuse?

7. Would environmental tribunals or courts enhance public confidence in the land use planning appeals process? If so, would they impose significant extra costs and delays?

We also believe that it is essential that the public fully appreciates the weight of the scientific and technical evidence - even if it is unpopular - on major and potentially irreversible decisions, bearing in mind the limitations that may be placed upon it. Indeed many feel that there should be a limit on the extent to which local authorities can put to one side the views of the nationally-competent body on specific issues such as pollution control or flood risk. This is particularly so when the counter argument of "democracy" is usually reflected in the fact that only a small minority of the local population may have been involved in the relevant debate and it is likely that the silent majority may well have had greater confidence in the views of the nationally-competent body.

It is a fact that national environmental strategies and local interests may indeed conflict very badly at times; provision of housing, and roads, are prime examples. Some recent questions we have asked ourselves are: how should the Agency best contribute to strategic planning on landfill locations, rather than as at present comment on a site by site basis as planning applications are made; how will sites be selected for radioactive waste disposal facilities; will the chosen sites have to be "good" or "the best"; and how will future development in one area take account of the need to protect water resources (including ground waters) which are required across a larger regional boundary? There are no easy answers to any of these questions.

In fact, in general, we consider that we are rarely sufficiently involved at the strategic level, so that issues such as environmental capacity are not resolved in an informed way, and at an appropriate stage. As a result, the planning process often prejudices timely decisions; for example, in the case of schemes being constructed to meet EC Bathing Water Directive requirements, the planning system severely delayed progress to deliver the necessary treatment plants in many coastal areas.

Environmental planning problems are not restricted to pollution control. Issues relating to flood risk and water resources are also very pertinent. The former - building in flood plains - is a long-standing issue, but the extent to which the land-use planning system considers the environmental impact on the environmental impacts of water supply when dealing with cross-boundary transfer problems, differing timescales, and strategic impacts on a local scale is another general issue; the cumulative impacts of many small and, 'not significant', developments can often lead to unforseen environmental damage.

Because actions on the land surface invariably impact on drainage into the soil, and hence groundwater, land use policy should also be intimately linked with groundwater management and protection in a wider context. There are usually very long time scales between development and any adverse effects, which makes consideration of groundwater issues particularly critical in the context of sustainability.

5.      Assessment approaches

There are many different approaches to assessing the impact of plans and developments. The Commission wishes to determine the most appropriate approaches to safeguard environmental sustainability while maintaining efficient planning systems.

1. What are the most appropriate appraisal methodologies for use in drawing up environmental plans and assessing the environmental impact of plans prepared for other purposes? Do appraisal methodologies applied to individual cases provide sufficient information about their implications for the achievement of wider environmental goals?

2. Could increased use of such methodologies dovetail effectively with the efficient operation of environmental planning systems? How widely applicable should environmental appraisal be? What level of detail is appropriate for the various plan types? Who should be responsible for: i) undertaking environmental appraisal, and ii) judging its quality?

3. What would be the value of increased use of other assessment tools, e.g. sustainability appraisal, environmental capital, environmental footprint, environmental space, and health impact assessment?

4. Are there good examples of comparisons between the actual environmental, social and economic effects predicted when a case was being considered and what the actual effects were? In addition, is there evidence of the effectiveness of pre-development mitigation and compensation agreements at avoiding unsustainable outcomes?

5. How adequate is the knowledge base, including the location and availability of expertise, provision of training for practitioners, and the accessibility and quality of data? How far are any of these elements in the knowledge base constrained by the lack of resources or suitable institutions, and, if appropriate, how could that be remedied?

There is, at present, clearly a perceived difference between the objectives and tools used to achieve planning decisions, and decisions relevant to environmental licensing. Both should however be subjected to some common form of "environmental impact" assessment that includes the potential scale of the impact (which could range from local to even global) and the reversibility of the impact. There also needs to be some common form of auditing and post-hoc analysis of the decisions made. In many respects, therefore, it is difficult to tinker with the existing system and hope that it will evolve into something better; a basic rethink is probably called for.

I hope all of this helps. As you know, we have offered to give you 'worked' examples of many of the points we have raised, and you may find it useful to examine the four State of the Environment Reports that we have published - on Fresh Waters, Coasts, the Land, and the Atmosphere. I have also included copies of the documents referred to in the text.

As you will also know, I will be retiring from the Agency at the end of July and thus please continue this dialogue with the Agency via Dr John Murlis, my successor as Chief Scientist, at the address below.

Good luck with the rest of this review.

^[1] Creating an Environmental Vision
^[2] Viewpoints on the Environment

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