Scottish Government

Main Findings

• In a typical year there are estimated to be around 15 cases of developments requiring both planning and PPC consents, about 48 coincident planning and WML cases, and many hundreds of coincident planning and CoPA cases across Scotland. In addition issues do arise in cases where developments with pollution potential are subject to planning consent but not environmental consent, and vice versa. The research was therefore extended to address these.
• There have been substantial improvements in the operation of the interface between planning and environmental regulation in the years since the early 1990s and problems between the regimes are now rare. Practice varies, but there are excellent examples of effective interaction between planning and environmental regulation providing sound outcomes for all stakeholders.
• Nevertheless, there are still areas of weakness which lead to inappropriate standards of environmental protection, delays in resolution of consents, unnecessary burdens on participants, and public uncertainty and lack of confidence. In particular:

• It is evident that health is relevant to both planning and environmental regulation and that the powers do exist to ensure an appropriate level of protection is achieved. There is however, considerable uncertainty about how and when planning and environmental consents should be used to protect public health and this leads to failure in public confidence and engagement with the system. This raises particular problems with waste developments where there is public concern about health. Together with lack of clarity about planning authorities' obligations under European Union Directives, this could cause significant difficulty in implementing the developments needed to deliver Scotland's National Waste Plan and comply with EU requirements. Practice in health impact assessment is improving and over time should enable better informed decision-making, but current guidance has not kept up to speed with these developments.
• Lack of understanding of the different regimes, and the fact that their different objectives can legitimately lead to different consenting outcomes, can result in public concern. This hinders effective engagement with the process and causes the public to lose confidence in the regulators. As noted above this also places barriers in the way of important waste developments.

Introduction

A review of the interface between planning and environmental consenting in Scotland has been carried out with the aims of:

• identifying how many cases of development there are which require both planning and environmental consents;
• assessing the strengths and weaknesses of the way planning and environmental regulation interact in terms of protecting the environment and public health whilst enabling appropriate development;
• assessing whether the regimes interact in ways that support public involvement and environmental justice;
• making recommendations for change and considering their practical implications.

The environmental regimes considered were Pollution Prevention and Control (PPC together with its predecessor Integrated Pollution Control and Air Pollution Control regimes), Waste Management Licensing (WML) and Discharge Consenting under the Control of Pollution Act (CoPA). The extent of the interface between planning and the regimes for Radioactive Substances Authorisation and Control of Major Hazards Installations was found to be very limited and these regimes were only briefly considered. It was noted that the CoPA discharge consent arrangements will shortly be replaced by new legislation under the Water Environment and Water Services (Scotland) Act 2003 but this was not investigated further.

The research involved a literature review including research, policy, legislation, guidance and advice; a review of appeals and case law; data collection from the authorities; case study research; international research; and wide consultations with interested parties. It was completed between December 2003 and June 2004.

Background

It is long established policy that planning authorities should not seek to control matters that are the subject of other regulation. Problems at the interface between planning and environmental regulation emerged in the late 1980s and various guidance was published during the 1990s leading to improved practice. Recent investigations by the Royal Commission on Environmental Pollution have, however, identified that there is still potential for further improvements to facilitate development and protect the environment and public health.

Recommendations

Recommendations are made in five main areas.

A. Changes to Current Policy Guidance and Advice

Planning policy guidance and advice on planning and environmental protection (PAN51) and planning and waste (NPPG10 and PAN63) should be thoroughly reviewed and updated. The emphasis on parallel applications as the preferred route should be relaxed to provide applicants and regulators with flexibility. Guidance on the provision of environmental information at the planning stage should be strengthened to ensure that SEPA is able to obtain the information it needs to comment usefully on planning applications in cases where parallel applications are not made. To support this, guidance on Environmental Impact Assessment (PAN58) should be revised to ensure that EIA plays a more effective role at the interface. Ministers should write to local authority chief executives and SEPA (or a Circular should be prepared) to remind them of the importance of good practice in communication and consultation and identify certain actions to facilitate this. These measures are all HIGH priority.

Guidance on planning conditions (Circular 4/1998) should be revised to provide more assistance on conditions relating to environmental protection. This is a MEDIUM priority.

The position of conditions in local authority Notices of Intention to Develop should be clarified and guidance provided to planning authorities and SEPA. This is a LOW priority.

B. Changes in Secondary Legislation

No changes in primary legislation are recommended but a number of changes in Regulations and Orders are proposed.

• Reviewing the General Development Procedure Order to ensure that Article 15 requirements for consultation with SEPA are clear.
• Revising Article 3 of the Use Classes Order to make all developments requiring PPC or WML sui generis (therefore ensuring they require planning permission).
• Amending the Notification Direction to require planning authorities to notify Scottish Ministers where they propose to grant consent for a development to which SEPA has objected, or to grant it without conditions which SEPA has requested.

• The above are HIGH priorities

• Amending the General Development Procedure Order to require local authorities to obtain information on other consents required in planning applications and to use this information to identify other regulators who should be consulted.
• Introducing a new class of permitted development into the General Permitted Development Order to avoid the need to apply for planning permission for minor developments required as a consequence of changes in environmental permits.
• Amending the EIA Regulations to exclude developments requiring PPC and WML from the exemption thresholds in Annex 2.

The above are MEDIUM priorities

C. Recommendations on Practice

Current internal SEPA guidance on its interaction with the planning system should be consolidated and updated to bring it into line with the revised planning guidance and provide model responses for SEPA. This is a HIGH priority.

Periodic reviews of Waste Management Licences should be used as an opportunity to address problems arising from old or absent conditions attached to planning permissions granted before 1994. If this is not successful in resolving problems, then consideration should be given to introducing a Review of Old Waste Permissions procedure. This is a HIGH priority.

SEPA should prepare simple guidance for all interested parties, clarifying when consents are needed under CoPA (the need for this may be superseded by the new Controlled Activities Regulations if these are implemented soon). SEPA guidance on PPC and WML should be revised to include fuller references to the interface with planning. SEPA should also review internal procedures for communication between planning liaison and regulatory staff to ensure information is accessible to both. These measures are all MEDIUM priorities.

Existing informal arrangements used by SEPA and local authorities to alert SEPA of planning applications of possible interest should be disseminated and offices encouraged to investigate the best approach for their areas. This is a LOW priority.

D. Public Guidance

Simple guides to the development control and environmental consent systems should be prepared and made available for the public to help their understanding of, and confidence in, the systems. This is a HIGH priority.

E. Further Work

Several areas have been identified where further work is recommended, either to determine whether action is required or to establish in more detail what that action should be:

• In finalising the details and implementation of the Controlled Activities Regulations, careful consideration should be given to ensuring an effective interface with planning is achieved. This is a HIGH priority.
• Further research should be carried out into the relevance and consideration of health impacts in planning and environmental consents and into the development and application of new practice in health impact assessment. This is a MEDIUM priority.
• Model planning conditions for waste developments should be developed for Scotland to replace the old Planning Officers Society guidance referenced in PAN63. This is a MEDIUM priority.
• Consideration should be given to the feasibility and benefits of developing the staged approach to PPC applications mentioned in current guidance. This is a MEDIUM priority. Consideration should also be given to extending the application of the monitoring and enforcement mechanisms currently under investigation for minerals permissions to other types of planning permission. This is a LOW priority.

Practical Implications

The majority of the measures identified above are focussed on delivering better implementation of current legislation rather than changing or introducing new statutory duties and powers. Insofar as these require participants to take actions that are not currently taken at present, they will require additional resources. It is however, considered that the various measures will facilitate quicker and less contentious consenting and thereby reduce the financial and other costs of delay and uncertainty, and ensure more effective protection of the environment and health. The development of closer working relationships and communication between planning authorities and SEPA will draw upon the excellent examples of practice which can be found in Scotland.