Royal Commission on Environmental Pollution

We would begin by saying that we found the questions both interesting and challenging. Many of them raise very wide social, political and legal issues and many alone would warrant very substantial technical and philosophical responses. The responses below are comments upon and reactions to the questions arising out of the experience and particular expertise of those members of the working party that kindly agreed to contribute their time to this exercise - notwithstanding full diaries! We have provided responses to most of the questions (although many, are, of course, multiple questions) - but not all.

Section 1 - Environmental Sustainability

(a)       There is a well known difficulty in defining sustainable development, but in general we feel that pursuit of it has generally had favourable consequences rather than unfavourable ones and the notion of sustainable development has certainly been beneficial in raising awareness and also expectations about environmental issues. However, where an objective in a particular case has required support via funding, it has not always been forthcoming, such as investment in public transport;

(b)       There are environmental imperatives - the quality of air, the ability to produce sufficient food and the other essentials of life. These must be rigorously protected - one could argue that a primitive society would not destroy the environment in the way that modern society does. But knowledge of the dangers and particularly the species in danger is important;

(c)       Protection is often most effective by means of a policy which is clear in its application and not too flexible. The green belt, for example, has been an effective procedural and psychological barrier to development around London and elsewhere. Other zonal designations and SSSI's have been successful at least in terms of clarity but often need to be backed up by other legislation to be fully effective. It is important, however, that the imposition of restrictions is accompanied by proper enforcement and, indeed, a culture of enforcement although this will often require funds if that culture is to thrive.

Further, more awareness - i.e. education - on environmental issues would be helpful and would have the beneficial effect of preventing environmental losses arising in the first place. Awareness of controls is required in terms of their existence and also their operation in practice.

Criminal sanctions, more widely used, would assist and it may be sensible to return to the idea of a planning breach in some instances being a criminal offence which idea has been rejected on various occasions in the past.

(d)       Land use planning does to some extent embody this presumption - for example there is no requirement to give reasons for granting planning permission - only refusal. Further there is no third party right of appeal. The move to a plan led system (which may be more of a moving in perception than law) probably has assisted but the length and level of abstraction of the development plan procedure inevitably favours those with the resources to participate fully within it.

It may be that having a fast track planning approval system for brown field sites should be given serious consideration.

(e)       No. This is partly due to organisations, such as the environment agency, not having particularly good records and suffering from a lack of resources.

(f)       A lack of resources and expertise inevitably hinders environmental planning - quite often the necessary procedures and legislation exists, but it is under-used for whatever reason - possibly because the existence of it is not known, or there are simply insufficient staff to take the necessary action to enforce it.

(g)       Yes the planning system can be a "driver" - but it may be that for the planning system to be more of a driver there needs to be further integration with environmental systems. There is a danger that environmental effects can fall between two stools where a development which has significant environmental ramifications which are subject to separate administrative processes nonetheless is granted planning permission on the basis that environmental considerations should be left for determination in another arena. Once the planning permission exists there is, in a sense, a presumption that the requisite environmental consents ought to follow.

(h)       We are not sure that it does - time limits should not justify unacceptable land uses. They might, of course, be appropriate for certain kinds of developments. It was noted also that time limits can seriously hinder funding from lending institutions.

Section 2 - Boundaries

(a)       We are not convinced that this is a major issue in practice. It is more important that the boundaries of particular authorities conform to the appropriate requirements of those authorities rather than other authorities so, for example, the environment agency may be divided accorded to environmental features (e.g. rivers) whereas local planning authorities may be subject to boundaries arising from centres of population. This seems to us to be generally appropriate.

(c)             We believe that a "separation of powers" would be preferable and in the end better than putting all the responsibilities upon a single body or the planning system generally. To have a separation of powers allows for important checks and balances to be built into the system.

Section 3 - Integration or Co-ordination?

(a)       At the development control stage of say, an incinerator application, there can be much game playing over what can be discussed at the planning stage and what ought to be left until the licensing stage. For applications of this sort, and particularly where there is a good deal of detailed technical evidence of relevance, it would be better (and possibly more democratic) if all aspects of the case could be discussed in one forum so that those involved can discuss their concerns about pollution and other environmental matters without having to skew them into recognised planning matters. Where there is no such technical complexity warranting a "single" process we believe that separating out processes can be beneficial in that the separation allows for checks and balances in the system.

(b)       It is very difficult to speed up the planning process without preventing effective consultation, investigation and perhaps most importantly, scrutiny of the arguments. The emphasis shifts to going through the motions in the shortest possible time, rather than fulfilling the purpose of the legislation in terms of the quality of the environment.

(c)       Can be effective in complementing planning objectives - e.g. taxes such as the landfill tax if set at the appropriate rate. Non-statutory arrangements and procedures, we feel, are not generally desirable as they detract from open and fair government. Some very informal arrangements can be effective e.g. bottle and paper banks.

(d)       A betterment tax would remove the incentive to sell green land for development just to receive a financial windfall. It might also enable LPAs to provide facilities, make up for deficits in provision of, for example, open space and obviate the need for wide ranging planning obligations. Despite DoE circular 1/97 the latter are still open to abuse by local planning authorities making unreasonable demands and/or developers willing to "buy" planning permission. We appreciate, however, that putting in place an effective betterment tax and, more to the point, arriving at a procedure for calculating the increase in value that falls to be taxed is fraught with technical difficulty and calls for the requisite number of skilled people to operate the system. Previous attempts to put in place such a system have been short-lived. To successfully add a further layer of complexity by hypothecating the tax to environmental matters would, we think, be very difficult indeed to do effectively.

Section 4 - Subsidiarity and Democracy

(a)       We are concerned about the move away from the current arrangements in local government towards the possibility of mayors and elected cabinets - with decision making being concentrated in the hands of small cabal of individuals. This does not necessarily make for good decision making, as further politicising the system encourages the "quick fix" approach.

(b)       We feel that at the moment the system is fairly open and increasing use of IT may make it more so or perceived to be more so. There seems to be, however, fairly widespread ignorance or apathy about how local government and the committee system works, which militates against people making use of it. It is impossible to prescribe the precise circumstances in which the common good should override informed local opinion - but the planning system is not about nor should it just be about, placating local opinion. It is there amongst other things to strike a balance between local and national concerns. For example, wind farm developments are very often opposed locally on visual grounds by local planning authorities and individuals to the detriment of the common environmental good that wind farms would indisputably bring.

(d)       We are not convinced that regional planning bodies will necessarily assist - they represent a further layer of administration.

(e)       The differences are rooted in history - but differences in what are essentially similar systems allow for useful comparison and selection of the most efficient process.

(f)       Judicial review is clearly not a realistic means of third party appeal for most. There is, therefore a case for third party rights of appeal as already exists in the Isle of Man where 16% succeed. Cost penalties are essential otherwise abuse will be widespread amongst those who are prepared to bring appeals and should exist to discourage third party appeals being made which plainly have no merit. The prospect of bad decisions being made by LPAs is now made worse by the introduction of cabinet government into local government as there will be a temptation for a few key members to abuse the system by driving through certain projects regardless of policy. In Ireland and the Isle of Man those with property rights may appeal against the granting of permission - something like 16% of these appeals succeed - which proves what everyone on the mainland knows - that local authorities are not infallible. The Human Rights Act would restrict locus in third party appeals to those with property interests.

Section 5 - Assessment Approaches

(a)       It is implicit in planning, and allied systems, that the approach is that demands should be met. There are times when this demand far exceeds the environmental capacity of the area. To consider the environmental footprint of a proposal would really be a major step in terms of appraising the sustainability of a proposal. The planning system, properly applied, is good at appraising the immediate impact but not the knock-on effect. The latter needs to be taken on board if sustainable development is to become a reality.

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