Royal Commission on Environmental Pollution

I am pleased to respond to the Royal Commission's invitation to the Scottish Executive to submit evidence for its study of Environmental Planning.

I note that "The aim of this study is to assess whether the various regimes at different levels for setting and achieving environmental goals provide an effective, accountable and transparent way of protecting the environment." That echoes how we in Scotland try to address environmental protection, i.e. through a range of environmental protection regimes and a process of liaison, consultation and co-operation.

Bearing that in mind, it is surprising that so many of the detailed questions about the operation of the environmental protection regimes seem to concern the town and country planning system. It does indeed play an important part in environmental protection but is not always the lead player, and in instances where no development takes place it does not have a role. Nevertheless my response primarily addresses the issues from the land use planning perspective though where possible it makes reference to the other environmental protection regimes.

Our response, attached at Annex A, repeats your questions and then gives our answer. I am pleased to see that we are not expected to answer all of them!

Regarding questions o, p and s, devolution and the election of the Scottish Parliament has created a new relationship between Ministers, Members of the Scottish Parliament and the people they represent. That is evidenced in the high volume of Ministerial correspondence and Parliamentary Questions, and the work of the Parliamentary Committees. This reflects the openness and accountability which devolution has delivered. Environmental planning regimes in Scotland may therefore, as a result of devolution, develop differently from other parts of the UK.

As requested I am responding by e-mail and copies of the documents referred to in the Annex will follow by post.

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.
The Scottish Executive shares the Commission's view that sustainable development has economic, social and environmental components. While the Commission sees its particular function as to ensure that environmental sustainability is not prejudiced, the Scottish Executive has however to take a wider perspective and take all three components into account.

a.      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?
The pursuit of sustainable development is vitally important in Scotland, and ensuring that environmental quality, both urban and rural, is maintained and enhanced is a key consideration in our approach.

b.      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?
A sustainable approach to development involves ensuring that not only the environmental issues but also the social and economic aspects are considered together, and that decisions are taken with an understanding of the likely outcomes. (please also see our answers concerning environmental impact assessment in section 5)

c.      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?
To be effective and practical, regulatory approaches have to be both suited to the medium concerned and integrated across the three media of air, land and water. In measurable terms for example, the transboundary nature of air pollution means that much is being done at international and national level to tackle the problem, but this has to be balanced against the local effects on land and water.

The Scottish Executive recognises that it will not always be possible to eliminate actual and potential problems in the most cost effective way through the use of regulatory instruments alone. That is why the Air Quality Strategy, launched in 1997, gave responsibility for the management of local air quality to local authorities. Local authorities are now required to review and assess the air quality in their area against air quality objectives set out in the Strategy, (and given statutory force in the Air Quality (Scotland) Regulations 2000). Where an air quality objective is unlikely to be met within the set timescale, an authority must declare an Air Quality Management Area, and formulate an action plan to remedy the situation.

This approach will help to ensure that small localised pollution "hot-spots" are tackled in an appropriate manner. Guidance has been issued to local authorities which makes it clear that air pollution should not be viewed as a problem solely for environmental health. It will take a corporate approach involving environmental health, planners and transport planners to deliver the solutions which will deliver cleaner air quality. In addition one has to take into account the impacts of a new or substantially expanded development on all aspects of the environment through the application of the main pollution control regimes (IPPC and LAPC) and the carrying out of an Environmental Impact Assessment.

The planning system is the main means of protecting the less tangible aspects of the environment such as the landscape and amenity, though land ownership also has an important role to play. Through the planning system the effects of development on landscape and amenity can be considered, alongside other material considerations. This applies in all areas, though where there are particularly significant landscape issues such as in National Scenic Areas, or amenity issues as in conservation areas and residential areas, they are likely to be accorded more weight than elsewhere. Where there are national policy issues these will generally be set out through National Planning Policy Guidelines (NPPG).

In all areas there is the requirement to advertise a wide range of planning applications for so called 'Bad Neighbour Developments' (e.g. refuse disposal sites, scrap yards and development which will affect residential property by reason of fumes, noise, vibration, smoke, artificial lighting or discharge of any solid or liquid substance.) This ensures that the public has the opportunity to make their views known about the potential effects before the application is determined. The advice in Planning Advice Note 50 Controlling the Environmental Effects of Surface Mineral Working (and its Annexes) is an example of our approach to development proposals whose environmental effects have to be carefully controlled.

The Scottish Executive will shortly be issuing a Planning Advice Note (PAN) entitled Planning for Natural Heritage. This will provide advice on the ways in which the planning system and development can contribute to, and offer opportunities for, the conservation, enhancement, enjoyment and understanding of the natural heritage. It will indicate that Landscape Character Assessment and Biodiversity Action Plans have valuable roles to play in informing the planning process, and will highlight the role of the planning system in securing development which complements the natural environment and works with the grain of natural processes.

These provisions provide planning authorities with effective and practical means to protect the environment.

d.      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?
In practice the position is that there is a 'presumption in favour of proposals which accord with the development plan,' (NPPG1 paragraph 38), reflecting Section 25 of the Town and Country Planning (Scotland) Act 1997 which says: 'The determination shall be made in accordance with the [development] plan unless material considerations indicate otherwise.' This provision increased the weight given to development plans, and to the extent that development plans embody policies for achieving environmental sustainability, it has therefore made the plans more effective. The Scottish Executive is not aware that any further change is necessary.

e.      In practice, how far have planning regimes in general moved from "predict and provide" to "plan, monitor and manage" to avoid environmentally unsustainable outcomes?
The increased awareness and understanding of the environment in terms of sustainable development has led thinking away from a simplistic 'predict and provide' approach which does not take account of environmental costs. For example, in terms of providing additional homes, the priority is to meet the demand on previously developed land and through recycling buildings. Looking to the future, work underway on indicators of sustainable development might help to monitor and manage change more effectively

f.      Do current arrangements for environmental planning sufficiently take into account the cumulative impacts of developments?
The cumulative impacts of development can be considered during the preparation of development plans and when specific planning applications are determined. For projects which need an environmental impact assessment it is a requirement to consider cumulative effects.

g.      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?
In some instances the town and country planning procedures are complex but they have developed in response to complex environmental and legal situations, and to deal with the wide variety of development proposals. Some of the steps taken in response to their complexity include:

• Consolidation of primary legislation in the Town and Country Planning (Scotland) Act 1997.
• Making completely new Regulations to implement of the EIA Amendment Directive rather than making amendments to the previous regulations.
• Publication of an 'easy read' Guide to the Planning System in Scotland in May 2000.
• And work is in hand on an informal consolidation of the General Permitted Development Order (Scotland) which will be available on our web site later in the year.

Reducing the impact of climate change requires action to mitigate emissions of greenhouse gases and action to adapt to the predicted, unavoidable, impacts. Decisions taken in the short term can have significant effects in the long term and difficult environmental decisions often have to be taken. For example, development of wind-power impacts on the environment in terms of alteration of landscape character and may have implications for protected birds and their habitats. However, the use of wind power also helps to protect the environment from climate change through the consequential reduction in emissions of greenhouse gases. National Planning Policy Guideline 6: Renewable Energy is currently being revised to help local authorities to resolve the competing environmental issues, allowing them to play a more enabling role in the development of new renewable energy projects. A draft was issued for consultation in June 2000. One of the objectives of NPPG 17 - Transport and Planning is to meet the commitments and targets on greenhouse gases and local air quality through an integrated approach to land use, economic development, transport and the environment. In particular it says that the aim should be to locate key travel generating uses to support more sustainable travel patterns.

The land use planning system has an important part to play in the process of adapting to the predicted impacts of climate change by encouraging development which can withstand future climatic changes. In Scotland this will include the increased risk of flooding and more stormy weather. However, it is unrealistic to think that the planning system alone can deal with these problems. Land use is part of a spectrum of decision-making, ranging from the actions of individuals in, for example, using energy and producing waste, to national and international policy on energy, waste and other relevant issues.

In terms of limiting the extent of damage from unavoidable climate change, the guidance issued in 1995 (NPPG7 - Planning and Flooding) explains how climate change could lead to increased temperatures, rising sea levels, increased rainfall, changed rainfall distribution, more stormy weather and an increase in storm tide-surges. The NPPG therefore advises planning authorities to proceed on the basis of the precautionary principle. Recent research for the DETR identifies 5 priority areas most likely to be affected by climate change including land use and sectoral planning. A UK wide research project will commence later in the summer to prepare draft advice on the role of the planning system in delivering climate change adaptation measures.

i.      To what extent does the achievement of environmental sustainability depend on permitted uses being time limited?
Time limited planning permissions are the exception rather than the rule. Where new development is time limited by its nature, e.g. opencast coal extraction, environmental sustainability is normally achieved by operating and restoration conditions attached to the planning permission.

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.

a.      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?
Environmental processes such as land drainage in river catchments, coastal deposition and erosion, weather patterns and microclimate, can each be seen as operating within their own area. It would not therefore seem possible to define administrative areas which match all the environmental process areas. It is however recognised that the single tier all-purpose local authorities in Scotland are not best suited to deal with some environmental processes. Hence for example structure planning in Glasgow and the Clyde Valley is undertaken through a joint committee representing 8 authorities; the implementation of the requirement for catchment management planning under the forthcoming Water Framework Directive may be undertaken through SEPA's regional offices so that whole river catchments can be covered.

In general however, authorities liase and consult between themselves and with other organisations so that environmental processes which transcend administrative boundaries can be properly considered.

b.      What problems arise from different plans being produced and implemented for overlapping geographical areas?
In a world where the natural environmental systems, economic structures, housing market areas, administrative areas, underlying geographical units etc do not coincide but inevitably overlap, the key issue for those working in environmental planning is one of liaison, co-operation and consultation.

For example, the Scottish Executive tries to ensure that there are no differences of approach between Local Authorities in the implementation of measures designed to improve Air Quality, which cross the boundaries of two or more LA areas. The Environment Act 1995, which gives the statutory backing for the operation of the Air Quality strategy makes reference to the need for Local authorities next to each other to consult on proposed air quality measures.

c.      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?
The land use planning system already plays its part in delivering policies in a wide range of areas such as transport, flood prevention, nature conservation, landscape protection, renewable energy and contaminated land. This is normally achieved by including relevant policies in development plans and applying them through development control. National Planning Policy Guidelines and Planning Advice Notes address these issues from the national perspective as appropriate.

d.      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?
In the shorter term the need is for inventory GIS to integrate and present information and in the longer term the technology would be well suited to presenting trends and predictions. GIS is well established in local authorities and central government and the issue of common standards, joining up initiatives and dissemination of information is perhaps more relevant than the technology itself. Greater use of standard coding systems and the provision of metadata by those creating information is required.

The issue of metadata is being addressed by the GIS community through initiatives such as the National Geospatial Data Framework and the Geographic Information Charter Statement, which the Scottish Executive has adopted. The rate at which these initiatives are feeding back into data accessibility and quality is however slow.

e.      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?
The consultation paper Land Use Planning Under a Scottish Parliament which was issued in January 1999 asked a question about whether there was a case for extending planning powers to cover, for example, agriculture, forestry, land management and the marine environment. Wide ranging views were expresses in response, with caution being urged by many, and it was stressed that planning authorities should be careful about taking on responsibility for these wider environmental concerns which involve specialist skills.

3.      Integration or co-ordination?

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.
The Scottish Executive believes that, as a whole, the current arrangements of environmental planning regimes work sufficiently well, though they are kept under review and amended when necessary.

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

b.      Is there in practice a hierarchy in the formulation of different types of environmental plans? Would there be advantages in establishing a clearer hierarchy?
The situation is that each plan takes the lead role within its own field, linking with and drawing on other plans as appropriate. In waste management planning for example, it is for the National Waste Strategy to identify the need for facilities, for structure plans to provide the strategic planning framework and local plans to identify sites which are consistent with the strategy. It is hard to envisage a hierarchy which could be universally applied.

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

d.      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?
The work of the Scottish Executive Planning Audit Unit has shown that the percentage of applications determined within the statutory target can be improved. The improvements are generally achieved through better management of the process within planning authorities rather than a reduction in the time given to considering each application. Of course there are major and complex applications where all parties recognise that the nature of the application and/or the environmental issues and other material considerations mean it has to take longer. Even then, pre-application discussions between the developer and the planning authority can help to ensure that the issues are fully considered and the application is determined quickly, as shown by some major petrochemical and high technology projects. In our view, improved overall performance and effective environmental protection can both be achieved.

e.      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?
Parallel decision processes on land use planning and pollution control stem from separate legislative requirements, often based on EU legislation. Parallel processes may strengthen the environmental protection aspects when an issue is considered from 2 perspectives. Our general position is set out in NPPG 1 which says " planning powers should not normally be used to secure objectives which can be achieved under other legislation."

There is a statutory requirement for planning authorities to consult the Scottish Environment Protection Agency on a range of planning applications which raise pollution control issues.

f.      Has a satisfactory integration of transport planning and land use planning been achieved? If not, what more needs to be done?
The ways in which transport planning issues and land use planning can be integrated are set out in NPPG 17 and PAN 57 - Planning and Transport, which were published last year. Joint work on transport and land use planning is already established in a number of ways. Local transport strategies have been prepared to draft stage by all local authorities and these are informed by the development plan. Research projects on An Integrated Policy Approach to the Transport and Land Use Planning Aspects of Development Applications, which will lead to an addendum to NPPG 17, and a Study into Accessibility Techniques are due to be published in July. Two further studies are at the tender stage; Planning for Modal Shift in New Development, and Key Sites Appraisal Methodology for Development Planning.

g.      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?

h.      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?

i.      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?
Un-sustainable development, as opposed to sustainable development, is not an overall long-term option. To portray the route to sustainable development in terms of disagreements between public and private rights may not be helpful. As issues like the use of lead free petrol have shown, the public are able to identify their personal goals with those of a sustainable future.

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.
The issue here is that decisions should be taken at the most appropriate level, by the proper body, taking into account all the relevant issues. As the Commission points out, the national and local perspectives may sometimes be at variance. In the Scottish land use planning system, NPPGs state Scottish Executive policy on nationally important land uses and other planning matters. They are supported where necessary by a notification system so that when a planning authority wishes to make a decision which is contrary to national policy, Scottish Ministers are given the opportunity to examine the circumstances and decide whether to call in the case for their own decision. NPPGs are also important material considerations in the determination of planning appeals. The vast majority of planning applications are however determined locally by the planning authorities.

a.      Is the current balance between elected leadership, expert assessment and public participation in environmental planning decisions appropriate?
(see covering letter)

b.      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?
(see covering letter)

c. 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.
The planning system is an important means of translating international and national goals to the strategic and local levels. The Scottish Executive endorses the principle of subsidiarity in international spatial planning and it has long been a principle of the Scottish planning system that decisions should be taken at the most local administrative level unless there are strong reasons for them to be taken at a higher level.

d.      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?
There is complete structure plan coverage in Scotland, dating from before local government reorganisation in 1996. There are now 17 structure plan areas, in 6 of which the work is the responsibility of joint arrangements by 2 or more planning authorities Since 1996 3 new structure plans have been approved, one is currently before Scottish Ministers and a further 6 are in draft. The current arrangements, including approval of structure plans by Scottish Ministers, provide the means to achieve coherence between national and local planning regimes.

e.      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?
(See covering letter)

f.      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?
Planning inquiries offer an effective means of resolving appeals, as do the other possible mechanisms of hearings and written submissions. Inquiries are not about resolving disputes, but are a determination process to decide whether it was appropriate for the planning authority to make the decision that it issued.

The subject of third party right of appeal has been considered from time to time, but the Scottish Executive has no plans at present to introduce such a right. There are arguments for and against doing so, for example on one hand the right of affected parties to be heard and on the other the risk of undermining the efficient and effective operation of the planning system. In particular, a third party appellant may not be representative of the wider community; pressure groups might frustrate development by making frequent appeals; and frivolous appeals might be lodged. All this could lead to delays in reaching decisions on applications, a matter to which the Scottish Executive attaches great importance.

g.      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?
As this question relates to public confidence, it is for users of the appeals system to answer. However, the Scottish Executive believes that they have reason to have confidence in the present system. Interpreting answers to this question will not be straightforward. As there is currently no environmental tribunal or court and no standard definition, the answer would be determined by the respondent's view of what such a body might be and this may differ from the RCEP's assumptions which gave rise to the question. For the same reason comments cannot be made on the cost implications. This would need to be estimated against an agreed view of the procedures of an environmental tribunal or court.

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.

a.      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?
It is important that appraisal methodologies are practical to apply and their outputs are matched to the decisions being made. For example it is counter-productive if a methodology requires so much data to be collected and analysed that the cost is out of proportion to the cost of the project or the potential effects on the environment. For projects involving a formal environmental impact assessment, its level of detail and methodology have to meet the requirements of the Environmental Impact Assessment (Scotland) Regulations 1999. The Scottish Executive issued advice on this in September 1999. (Planning Advice Note 58 Environmental Impact Assessment)

b.      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?
Strategic Environmental assessment (SEA) or appraisal techniques are already used in the preparation of structure and local plans and the forthcoming SEA Directive is expected to widen their applicability. In our experience it is helpful if the appraisals are undertaken by, or at least involve, those responsible for preparing the plan. This approach helps to ensure that the results of the appraisal are used to amend the plan before it is in its final form. Concerning the quality of SEAs, this will be open to judgement when the public, expert bodies and NGO's are invited to comment on the SEA.

c.      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?
The professional assessment of planning applications plays an important part in the planning system. There is no single assessment method that can apply in all circumstances, but it is important to make use of the most appropriate means of assessing environmental quality and the possible effects of change. We have given some advice on predicting and assessing impacts in PAN 58 - Environmental Impact Assessment and as appropriate will continue to provide advice on best practice.

d.      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?
(See answer to question z[e] below)

e.      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?
Scottish local authorities determine many planning applications which may have environmental, social and economic effects. In so doing they can, and do, draw upon a wide range of expertise from the Scottish Environment Protection Agency, Scottish Natural Heritage, Historic Scotland and other organisations. Our NPPGs and PANs encourage such consultations.

Local authorities can also require a developer to provide additional information and evidence relating to their application, for example a traffic impact assessment. Measures to monitor the predicted environmental effects of a development against the actual effects might be part of a planning application or they could be attached as a condition. In either case, the local authority has enforcement powers so it can ensure that all aspects of the proposal are implemented as approved.

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