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3.0 The planning-environment interface: documentary analysis

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Cowell, R., Ellis, G., Fischer, T., Sykes, O. and Jackson, T. (2019), Environmental planning after Brexit: working with the legacy of EU environmental directives, Royal Town Planning Institute.

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3.1 Introduction
3.2 The legal background
3.3 The connections to planning
3.4 Arguments for change
3.5 How effective is EU environmental legislation?
3.6 Explaining success and failure
3.7 Conclusions

 

3.1 Introduction

This section of the report is about understanding how EU environmental directives interface with planning, to identify where these relationships are working well, where there are problems, and where opportunities for change might lie. Together these insights can help to inform thinking about the options for reform that Brexit creates. The section begins by outlining succinctly the specific ways in which EU environment directives intersect with planning. It then considers previous analytical and critical reflections on this relationship, from government and political representatives, the RTPI, and wider academic and policy research. The assumption here was that future ideas for change might draw on past criticisms. Thus, the goal of the analysis was to tease out views on what was problematic, how arrangements might be improved, and to understand the underlying reasoning or evidence base.

The analysis is based on a number of strands of documentary research:

  • Identification and analysis of the ten EU environmental directives prioritised for this study (as per Section 2.2 above [IEEP 2018]), the implementing regulations, and any research into their performance, especially as that pertains to the links to planning;
  • Assessment of commentary on EU legislation and planning from government and political sources, including various red tape reviews and searchable post-2010 databases of ministerial speeches
  • Assessment of RTPI consultation responses to policies related to EU Directives;
  • Assessment of the wider academic and practitioner research.

An important theme to the analysis presented here is the need to distinguish between where EU directives specify certain substantive environmental goals (outcomes, such as targets) and where they specific certain procedures.

3.2 The legal background

To understand how EU environmental legislation and domestic planning legislation sit together, it is necessary to understand some basic legal issues.

In formal constitutional terms the environment is a 'shared' competence between the EU and Member States (TFEU Article 4) but spatial planning remains largely a national matter.EU legislation in this sphere can only be adopted by unanimity (Article 192(2), Treaty on European Union). The line has been blurred of course (Haigh 1987; Bond et al 2016; Muinzer 2016), and arguably should be permeable if planning is to perform an integrative goal across environmental, social and economic issues. But commentators have occasionally been keen to defend UK planning against incursions of EU action (Pickles 2012). This begs the question about whether the existence or perception of a 'line' between the European and the domestic has encouraged a split of responsibility between environment and planning that has been unhelpful to effective institutional design.

A further issue is that European environmental legislation has been fitted onto a pre-existing system of planning and environmental protection in the UK that – if by no means perfect - was relatively mature compared to that in some other member states. Fitting onto existing legislation does not necessarily imply duplication. The EU environmental laws most pertinent to planning take the form of Directives, which specify the goals to be achieved but give Member States broad freedom as to the manner and form of implementation. This can involve the utilisation or adaptation of existing, domestic mechanisms, but in turn raises the question as to whether EU legislation or aspects of domestic implementation are the source of any perceived problems.

It is also commonplace to contrast the more formalised, 'regulatory' policy style of continental Europe with UK institutional cultures that hitherto have largely favoured discretion (Newman and Thornley 1996). A question that arises, after Brexit, is whether aspects of EU policy styles should be retained or even accentuated.

3.3 The connections to planning

Analysis of EU Directives shows that they connect to planning in a number of different ways.

Intersection 1: Environmental goals and planning as a means of meeting them

A central feature of many EU environmental directives is that they set environmental outcomes goals which the UK, as a Member State, is required to meet, viz:

Table 1: EU directives with substantive environmental goals

Directive

Goals

Ambient Air Quality

sets legally binding limits for concentrations in outdoor air of major air pollutants that impact public health

Birds

the protection of specified bird species at a favourable conservation status

Habitats

to enable the protection of specified animals and habitats at a favourable conservation status

Urban Waste Water Treatment

ensuring waste water from urban settlements is treated before being discharged

Waste

pushing waste management towards the priorities at the top of the waste hierarchy and away from landfill, with % targets for particular disposal routes

Water

ensuring water bodies attain 'good water status'

Marine Strategy Framework Directive

Member States are required to establish indicators and targets to guide progress to 'good environmental status' of their marine waters by 2020, with implications for Marine Spatial Planning

In turn, UK governments have given planning regimes an important role in achieving the goals of the Directives, which can be divided into pro-active and reactive roles.

Pro-active roles for planning regimes in achieving the goals of EU directives

Planning regimes have pro-active roles in helping to meet Directive goals through development planning and development management, by influencing the location, form, design and thereby the environmental performance of development, viz.:

Table 2: Using planning pro-actively to achieve EU-derived environmental goals

Directive

Planning Actions (examples)

Air Quality

The implications of development for air quality goals are material to plan-making and development control.

Birds

Incorporating Special Protection Areas in development plans and instituting protective policies.

Habitats

Incorporating Special Areas of Conservation in development plans and instituting protective policies.

Waste

Incorporating space for recycling activities within developments; promoting re-use of construction waste.

Water

Influencing the form and location of development to inter alia, manage run-off and flood risk.

Re-active mode of planning regimes in achieving the goals of EU directives

There are a number of areas where implementing EU policy requires the provision of facilities that, in turn, need some form of planning permission, thus giving planning a key role in regulating applications (reacting) but also finding sites (spanning pro-active and reactive roles), viz.:

Table 3: Planning reacting to the infrastructure requirements of achieving EU-derived environmental goals

Directive

Planning Actions (examples)

Urban Waste Water Treatment

Dealing with proposals or allocating sites for water management facilities, either separate facilities or as part of new urban developments.

Waste

Dealing with proposals or allocating sites for waste handling facilities (recycling, recovery and other processes), either separate facilities or as part of new urban developments.

Water

Dealing with proposals or allocating sites for water management facilities; for flood water storage, either separate facilities or as part of new urban developments.

One can legitimately question the effects and efficacy of the pro-active or reactive roles that planning may assume (see below), but the EU itself is not directly concerned with whether or not the planning system is effective in the supportive roles given to it, except insofar as it may be pertinent to the UK's success or failure in meeting the goals of the Directive. As discussed below, EU action on implementation and enforcement is more directly relevant to planning where directives make provisions with specific, direct implications for planning (e.g. as with EIA).

Intersection 2: procedures of environmental governance, and planning as a means of delivering them

In a number of areas, EU environmental directives have specific procedural requirements, and these interface with planning in two main ways.

Planning as one contributing actor

EU directives can require Member States to prepare national or other types of action plans in which they set down the steps that they will take to comply with the requirements of the Directive (see Table 3). Within these national plans, roles for the town and country planning system may be among the steps that get listed but (as above) EU Directives do not directly mandate that the planning system has a role – this is at the discretion of Member States. Typically the role of the planning system is to take relevant information from these plans and make links to the policies of development plans, but is not the main party for ensuring procedural compliance. This is generally statutory environmental bodies or government.

Table 4: Planning procedures required by EU environmental directives

Directive

Plans contributed to/taken into account by local planning authorities

Air Quality

Air Quality Management Areas

Waste

(National) Waste Management Plans

Water

River Basin Management Plans

Planning as prime delivery agent

For a relatively small number of EU environmental directives, planning is a prime delivery agent, and – for those activities that fall wholly within its remit at least – local planning authorities or other planning bodies are the main competent authority for achieving compliance:

Table 5: Where the planning system implements procedures required by EU environmental directives

Directive

Planning Actions (examples)

Environmental Impact Assessment

Directing the environmental information to be provided with an application, to ensure that its environmental effects can be properly judged, and demonstrably taking it into account in decisions

Strategic Environmental Assessment

Directing the environmental and other information to be provided alongside new development plans, to ensure that its environmental effects can be properly judged, and demonstrably taking it into account in decisions

Marine Spatial Planning Directive

Requires that when implementing Marine Spatial Planning, Member States should promote sustainable development and take into account sectors including transport, fisheries, aquaculture, climate change impacts and environmental protection.

One should also note how the EU EIA Directives have served to extend elements of quasi-planning oversight to forestry, agricultural and offshore operations, previously outside the planning system (Jordan 2002). The procedural requirements for other directives can also profoundly shape the operation of the planning system, notably the system of tests required for adjudicating development proposals and plans against the requirements of the Habitats Directives.

To summarise this subsection, planning intersects with EU environmental directives in a number of ways, both as the prime agent for delivering certain procedures (such as EIA and SEA), and by offering a suite of mechanisms by which the environmental goals of other directives can be achieved.

Such formal delineation of roles and intersections may not always be reflected in perceptions from practice. The specification of environmental goals and standards of EU Directives, and the transposition and interpretation of them by UK governments and other bodies, takes places largely or wholly outside the planning system. Nevertheless, where implementing the Directives becomes challenging – because it adds costs or constraints to development projects – much of this criticism can be strongly expressed within the planning system, and directed to those procedures that lie at the interface between EU Directives and planning. Teasing out what is actually 'causing' the problem requires more care, however.

3.4 Arguments for change

What then have various actors said about the merits of EU environmental directives and how they interface with planning, and does this offer any clues about where future post-Brexit improvements may be sought? This subsection looks first at the reflections of government and politicians, before considering views from the planning profession and previous reviews of environmental planning.

3.4.1   Government and political commentary

One area of commonality in the policy and political discourse that has swirled around planning in England and  around EU membership lies in the concerns expressed about 'red tape' and the frequent calls for deregulation (Cowell 2017; Longworth 2017; TCPA 2018). This includes calls to reduce UK 'gold-plating' of compliance with EU Directives (Osborne 2011). Closer analysis of this material yields three main insights.

Firstly, for all the apparent pervasiveness of deregulatory and anti red tape discourse, the focus and format of this thinking is rather fragmentary. Ministerial or media commentary tends to focus on specific policy areas, with particular complaints being repeatedly recirculated. A ministerial reference to the Habitats Directive as 'spirit-crushing' is one example[1]; Boris Johnson's remarks about EIA and mitigation measures for newts (Johnson 2018) are another.

Actual assessments of 'red tape' tend to be highly partial in their framework for analysis. They tend to focus only on costs to business (or consumers) rather than wider social or environmental benefits, and to argue that 'when new rules are necessary they must be unashamedly pro-growth' (Business Task Force 2013, p.6) or pro-competition (see also IEA 2018). This is shored up by the assumptions that it is clear, ex ante, that less regulation or more flexibility can entail no risks or costs to the public interests, unsupported by analysis. So, for example, the Business Task Force (2013) asserts that the UK's signatory of the Aarhus convention itself 'guarantees access to justice in environmental matters', which is a highly contested point (Simkins 2018). There are overlaps with opposition to certain EU principles like 'the precautionary principle', in favour of legislation that is 'evidence-based' or based on 'sound science' (see also Rees-Mogg 2018).

Secondly, when attention is turned to the substantive content of studies investigating the scope for deregulation, these rarely identify a large range of specific cuts. More developed arguments for a 'liberalised', free market future for the UK, post-Brexit, often opposing ongoing EU regulatory alignment, have tended to deliberately steer away from identifying specific environmental legislation that could be rolled back (IEA 2018; Farand 2018). In the Business Taskforce report Cut EU Red Tape (2013), environmental policy was not the major focus of business concern and aspects with a planning interface even less so. The main instance was opposition to the (then) most recent revisions of the EIA Directive for potentially pulling in and adding costs to small businesses. The Westminster, cross-party Red Tape Initiative, looking for 'regulatory adjustments that could benefit both businesses and their employees' (Red Tape Initiative 2018, p.1) and provide quick wins, post-Brexit, also yielded little with direct relevance to planning.

Where specific EU environmental directives have been reviewed, evidence that regulation has been 'excessive' or 'gold-plated' is scant, with recommendations focusing on procedural aspects of implementation rather than the regulatory requirements per se. This has been the case with UK (HM Government 2012) and EU 'REFIT' reviews of the Habitats Directive, the former recommending streamlining guidance, improving the quality, quantity and sharing of data, but also measures to help 'nationally significant infrastructure projects' navigate the 'need' tests of the Directives, where protected species and habitats may be affected.

However, the Red Tape Initiative (2018) did give examine the conservation requirements of the Habitats Directive, specifically for great-crested newts and bats, in ways which linked procedures with the ultimate goals of policy. In line other red tape reviews, the Red Tape Initiative did not end up disputing the conservation goals; any regulatory burden was found in the complexities of implementation. Reference was made to measures already underway to make procedures and actions simpler for developers where their projects affected newts. But there was an acknowledgement that the scope for flexible solutions varied between species: in the RTI's words, bats are 'less flexible than newts' (2018, 15) in the geography of their lives.  The important point here is the need for care in how generalisations are made from specific implementation situations to the wider legislative framework.

3.4.2   Reflections from the RTPI

The RTPI's archives of consultations responses were searched and analysed, covering those from Northern Ireland, Scotland, Wales and England focusing on responses made directly to proposed EU legislation or, more commonly to governments' proposed implementing regulations and guidance, and commentaries on other EU-related environmental agendas. The key insights are as follows.

The overwhelming tenor of the RTPI's consultation responses is positive i.e. it is supportive of the new legislation and the consultation responses tend to press, constructively, for ways to improve the environmental outcomes. In some cases this represents a change of position. Back in the 1980s the RTPI was critical of the (then) proposed EIA Directive (Haigh 1987; Weston 2011); citing the UK's long-established planning system as a reason why the proposed directive was unnecessary. However, by the 1990s, EIA was regarded by the RTPI as 'a success'[2].

The RTPI tended to suggest ways in which the domestic implementation of the Directives could be improved:

  • Becoming more comprehensive in their coverage (e.g. widening criteria for including developments within EIA screening based on site sensitivity rather than project category/size), or more systemic or 'holistic' in their treatment of the environment e.g. the Marine Strategy Framework Directive (MSFD);
  • Pushing proposals for greater institutional or procedural integration e.g. between planning and water management in relation to the Water Framework Directive; between planning and pollution control in relation to successive industrial emissions directives; between requirements for Appropriate Assessment under the Habitats Directive and EIA; commenting on the problems that Northern Ireland's fragmented government structure would face in implementing the MFSD;
  • The RTPI expressed support for the EU's firm goals (e.g. 'good status' with the MFSD) and took stances that explicitly or implicitly share the EU's precautionary principle e.g. seeking to widen the array of projects that might be subject to EIA because of their potential environmental impacts; defining 'good ecological status' in the Water Framework Directive.

Importantly, but less frequently, the RTPI expressed support for, or pushed for more action on provision for public participation. Often this was linked to arguments for procedural integration between planning and aspects of environmental policy (pollution control, water management, nature conservation issues in agriculture) where decision-making procedures have been less open to public engagement than is the case in planning.

There are remarks that focus on issues of overlap, cost and potential problems, but these tend to be fewer and the research encountered no instances where straightforward duplication between planning and environmental regimes was mentioned. Rather:

  • It was remarked where new Directives would have few new implications for planning (e.g. Waste Framework Directive) or where EU provisions would build on existing UK practice (e.g. River Basin Management Plans from the Water Framework Directive building on Local Environment Agency Plans).
  • There were complexities and confusions about how EU requirements would fit to planning (e.g. how EIA provisions would apply to activities that were permitted development, e.g. in agriculture; how it related to existing provisions for securing information prior to planning consent decisions); how SACs and SPAs relate to Marine Conservation Zones under the MSFD), but these were presented as issues that needed sorting out.
  • On occasion, it was noted that taking steps to meet the Directives would have cost implications, though most often in terms of local planning authority resource constraints.
  • While the RTPI did express support for streamlining and simplification this was usually directed to the format of guidance rather than the underlying policy (e.g. Habitats Directive guidance, EIA screening procedures).

One of the main effects of the RTPI's submissions is to question the approach of the UK Government towards EU Directives, which was seen as taking a minimalist, compliance-based approach (Howarth 2009) rather than taking the opportunities for driving environmental improvement. This quote on the approach to implementing the MFSD illustrates this very well:

'We are concerned that the consultation document and supporting information focuses almost exclusively on the potential costs and economic impacts of the Regulations almost to the actual exclusion of the aim of the Directive to achieve Good Environmental Status. There is little focus on or explanation of the benefits that the Directive is intended to deliver for the marine environment across Europe's seas.' (From NI response)' ... 'There should be greater emphasis on the statement made in the MSFD around the promotion and integration of environmental considerations into all relevant policy areas and "deliver the environmental pillar of the future maritime policy for the European Union".'[3]

The only sphere where costs to developers was noted was in relation to EIA, who were believed to suffer 'little tangible gain for the time and expense incurred', though with recognition that EU rules serve in 'levelling the costs playing field for developers across Europe'.[4]

3.4.3   Previous comprehensive reviews of environment and planning

A remarkable finding from the documentary analysis is how little consideration has been given to the interface between planning and EU environmental legislation, or indeed to environmental issues more widely. A remarkable finding of the documentary analysis for this research is just how little attention these questions have attracted. There are studies of the Europeanisation of UK environmental policy, which also cover planning, as well as voluminous commentaries on individual directives, as the sections above have shown. There has been little overarching examination of the planning and environmental interface, bar two obvious exceptions.

Back in 2002, the Royal Commission on Environmental Pollution assessed the state of 'environmental planning' in the UK, with an express concern for how a complex and fragmented set of arrangements might be better integrated in the service of sustainable development (RCEP 2002). The recommendations for greater integration may now find a policy window (Kingdom 2003 for closer consideration, post-Brexit. However, although the RCEP recognised the importance of EU measures to environment and planning in the UK, the report assumed that they were a fixture, or at least raised no concerns that EU requirements per se created a procedural burden.

The same might be said for the Foresight Land Use Futures Project (2010).  Here to attention was drawn to the complexity created by a multi-level system of governance for land, including for systems of land designation, but this feature was largely accepted. More attention was given to issues of sectoral integration, and how addressing that might foster a more over-arching and comprehensive approach to the treatment of land, able to meet multiple goals.

3.5 How effective is EU environmental legislation?

Analysis of existing commentary around EU environmental directives and the interface with planning has identified relatively few clear areas where change may be desirable. An alternative approach is to look at existing research that has reviewed the effectiveness of the directives in achieving their goals - this is the task of this section of the report. The analysis focuses on aspects of the Directives that interface with planning (so, for example, it does not consider issues around agricultural water abstraction licensing with the Water Framework Directive, or packaging requirements in the Waste Framework Directive, etc) and, where possible, seeks to tease out the contribution made by planning regimes.

The issue of effectiveness is treated as multi-layered. First, attention is given to how well EU environmental directives have achieved their goals and the wider impacts, looking at successes and problem. It then turns to looking at factors that help to explain and interpret 'success' or 'failure', which bear upon potential opportunities for change, post-Brexit.

3.5.1   Efficacy in achieving positive environmental outcomes

Many previous studies have concluded that EU environmental legislation has contributed significantly to improvements in environmental quality in the UK (Burns et al 2016; IEEP 2013), notably the following:

  • Air quality directives have contributed to improvements in air quality across a range of pollutants.
  • Waste directives have contributed to a reduction of landfilling of waste and increases in recycling
  • The Habitats and Birds Directives have contributed to the conservation of the species and habitat types listed (Donald et al 2007), reducing the annual loss rate of protected areas compared to domestic, UK legislation (Fairbrass et al 2011; LINK undated).
  • Directives for water environments have contributed to improved quality, particularly chemical quality of many water bodies.
  • With the Marine Directives, it is largely too soon to ascertain the net and additional effects of EU action on UK practice and outcomes in this area, though there are positive outcomes that can be attributed to the extension of Habitats Directive designations to marine conservation areas (Stewart 2016).

It is noticeable that these areas of success are associated with those EU environmental directives which set clear goals. Indeed, having 'hard-edged' environmental outcome-based obligations, with timetables for achieving them, is widely regarded as a defining feature of EU legislation vis a vis traditional UK discretionary approaches, and that this in turn facilitates the firm implementation action that has led to substantive environmental improvements (see Burns et al 2016; IEEP 2016). It is easier to identify and challenge whether government's have met specific environmental outcome obligations, than whether they have sufficiently 'hard regard to' them. The durable, cumulative nature of EU legislation is also a factor (Morphet 2017).

The effects of directives that are procedural in their requirements are necessarily more difficult to interpret, but there is nevertheless a voluminous research literature on EIA and SEA.

There is evidence that EIA has been influential on development outcomes, and that this is attributable to its component processes: the provision of information and the facilitation of scrutiny by planning authorities, publics, civil society organisations and statutory bodies (Arts et al 2012; Glasson et al 2012; Wood and Jones 1997). These processes have led to modifications to projects, resulting in reductions in negative environmental impacts (Wood and Jones 1997; Glasson et al 2012). EIA has also enabled the early identification of problems, facilitating mitigation measures (Blackmore et al 1997; see also Arts et al 2016). Such effects have mostly been modest in significance, however, on occasion EIA processes have contributed to the refusal of damaging proposals (Cowell and Owens 1998). Many benefits may arise from the project design stage, prior to the seeking of planning consent.

Similar claims have been made for SEA. Rarely, in the early days, did SEA in practice deliver the ideals of comprehensive assessment or public engagement (Jones et al 2005; Owens et al 2004). Nevertheless, planners have reported that appraisal has fostered greater understanding of plans and sustainability issues, improved transparency in plan-making, and learning for future plan revisions (Glasson et al 2012). SEA has led to plans being modified, albeit by fine tuning of policies rather than changes in strategy (Smith et al 2010). Commentators also point to improved accountability. Sheate (2012) analysed National Policy Statements for energy and ports as well as planning policy statements on eco-towns, concluding that SEA had provided an arena for public and interest group participation and for assessment of policy measures that might otherwise have escaped scrutiny. A key point of challenge, facilitated by the Directive, concerns assessments that have failed adequately to consider 'reasonable alternatives', leading to certain prospective policies being revised or even withdrawn (Glasson et al 2012; Sheate 2012). Major development strategies promoted by central government feature among those that have been challenged for their compliance with the SEA Directive (including the Oxford-Cambridge corridor [CPRE 2018]), an important issue when considering the merits of new, independent environmental watchdogs.

As well as these physical outcomes, EU environmental directives have helped to deliver more transparency and accountability in policy- and decision-making. This applies to the whole governance architecture, with EU Directives often bringing with them requirements for Member States to monitor and report on progress (Broadway Initiative 2018). Improved accountability can also be attributed to EIA and SEA, in the requirement that decisions – whether for or against – are justified in relation to environmental effects, and for creating an aperture whereby aspects of pollution control are open to wider public scrutiny (Haigh 1987; Sheate 2012).

Mention should be made at this point to the Aarhus Convention on 'Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters'. Both the EU and the UK are signatories to this convention, which emanates from the UNECE, but for Member States then EU institutions like the ECJ have an important role in interpreting and securing compliance. Particular EU Directives like those on EIA serve, in part, to help implement the Aarhus Convention. The most tangible area where the EU has strengthened implementation of the Aarhus Convention is with the standing of environmental organisations in representing legitimate public interests, and UK governments have been forced to improve financial protection for those bringing environmental cases before the courts (Maurici and Moules 2014; ENDS 2015).

With EIA, it is an often-debated point as to whether the directives' minimum benchmark requirements for the impact information to be provided go beyond what could have been achieved through information requests under UK planning legislation (see discussion in Haigh 1987). Evaluating such effects also depends on the worth attached to formalisation and standardisation that EU legislation achieved, as discussed below.

When it comes to teasing out the efficacy of planning as a mechanism for delivering on EU environmental directives, issues of additionality and causality raised in Section 2 start to surface.

The clearest effects of planning in achieving EU Directive goals are where the direct regulatory powers of planning provide an important mechanism. With the Habitats and Birds Directives, for example, one can point to numerous instances where potentially damaging planning applications have been refused, extant permissions revoked , and where more extensive mitigation measures have been provided for projects and plans that have proceeded (Bishop et al 2000; Cowell 2000; Wilson 2009). The firmer tests of the EU directives have enabled more weight to be given to conservation concerns in planning decisions than domestic legislation, and the effects of planning actions can be traced into 'loss rates' for designated areas.

However, there are many areas where – as noted above - the interface between planning and EU environmental regulations is less direct and less specific, and these are often areas where the research is thin. When it comes to many aspects of water quality and air quality, possible impacts on these parameters are just one of the many implications that the planning system considers when making decisions, which remain a balancing process. While much has been made of the potential benefits of close interaction between planning and the River Basin Management Plans of the Water Framework Directive (White and Howe 2003), there has been little research on how far RBMP have been influential on development plans or vice versa. Similarly, although the planning system is important in shaping the availability of sites for infrastructure required under EU Directives (e.g. water treatment facilities) there is no systematic research to show whether the relationship has been productive or problematic.[5] In all such cases, planning actions are just one element in a complex network of cause and effect.

3.5.2   Problems in achieving goals; problems with the goals

Even where environment improvements can be demonstrated, there are a number of areas where the UK has not fully achieved the goals of EU environmental directives, for example:

  • Under the Ambient Air Quality Directive, there is a failure to achieve NOx targets, with problems arising from traffic especially, in a number of urban settings..
  • Under the Water Framework Directive, there is the likely failure of the UK to achieve certain water quality goals, especially for ecological quality and surface water bodies by 2027, itself an extension of the original time frame.
  • The UK has also been subject to infraction proceedings for the Urban Waste Water Treatment Directive (IEEP 2018).

For evidence of failure, one might point to the number of infraction proceedings undertaken by the EU. Indeed, '(e)nvironmental law has been the area where EU bodies have had to be most active in securing compliance with the law' (Reid 2018, 128). However, the scope for complaints to be brought to the European Commission and ECJ, and the powers available for remedial action, point to the importance of this wider EU governance architecture, which is danger of being lost through Brexit. The complaints brought by Client Earth about the UK's failure to comply with the Ambient Air Quality Directive are a case in point.

As noted in Section 2, the merits of EU Directives have themselves been contested, often precisely  for the obligations they impose and for the means of accountability they create. The idea that via EU legislation individuals or organised groups may be able to complain about government (in)action on substantive grounds has been seen as a benefit by some and problematic by others.

There are instances where it is claimed that meeting the requirements of the directives is attained at costs that are excessively high compared to the benefits. Such claims can arise where directives require costly physical investments (e.g. UWWTD, WFD) or where directives are perceived as imposing constraints or costly mitigation measures on development. Such concerns are associated with the Habitats and Birds Directive, where part of the regulatory review literature discussed above involved extensive analysis seeking to ascertain the extent of any restrictions imposed (see above). One needs to view claims about impacts in an evolutionary context, whereby past problems have been addressed. Without commenting on the environmental merits, the UK government has taken actions to help Nationally Significant Infrastructure Projects navigate the 'need' test where they would damage European wildlife sites.

3.6 Explaining success and failure

In order to make clear judgements about possible changes, post-Brexit, it is necessary to acknowledge the factors that influence success and failure with EU environmental policy. There is a vast literature dissecting the performance of environmental policy and planning, and it is impossible to review it any detail here, but the following points are especially important.

The nature of the problem

Some environmental problems are intrinsically more difficult to resolve than others, and so present bigger challenges to the design of effective regulation. A classic example is that point source pollution (a power station) is easier to regulate than diffuse pollution (e.g. from agriculture). Indeed, implementation problems may be increasing as the EU seeks to embrace and achieve more complex goals – e.g. moving from reducing landfill to creating circular economies; from protecting bathing water to more all-encompassing goals of the Water Framework Directive . As EU legislation has itself evolved, from issue-specific Directives towards more holistic 'framework directives', analysts have wondered whether the injection of more procedural modes of compliance dampens their regulatory effect (see Howarth 2009), especially where they give more discretion to Member States (Hilson 2018).

The social and political context

For all the debate that surrounds the technical merits of particular policy instruments, their efficacy in practice can be more profoundly shaped by social and political factors that shape the context of implementation.

One obvious example is the way in which national governments choose to interpret EU legislation and transpose it into domestic regulations. National governments may seek to implement the Directives in ways that are more ambitious than the EU Directive requires, with a view to achieving environmental improvements, or take a minimalist compliance-based approach (Arts et al 2012; Howarth 2009). The devolved governments have varied in their approach to transposing of EU Directives, for example:

  • On EIA, Scotland and Wales have instituted lower size thresholds for projects that might require assessment compared to England (see also Bond et al 2016);
  • On SEA, Scotland has not followed England and Wales in implementing SEA through objectives-led sustainability appraisal (SA), but has extended SEA to all public plans, programmes and policies that fall within the Scottish Government's remit (Jackson and Illsley 2006)
  • On the Water Framework Directive, Scotland has embraced a wider set of waters within the ambit of the directive.
  • On the Waste Framework Directive, Wales has higher targets than in England, which follows the targets of the Directive.

The impacts of national governments have been much discussed in the context of SEA. The proposed Directive sought also to apply SEA to policies, but this was opposed by a number of Member States, including the UK. The requirements of the Directive have also co-evolved with longer-standing procedures (in England) for the Sustainability Appraisal (SA) of plans, including economic and social as well as environmental objectives, creating some concern that environment goals are marginalised (RCEP 2002; Jones et al 2005; Law Commission 2018; Morrison-Saunders and Fischer 2006). Scotland has avoided these concerns by focusing on SEA alone Jackson and Illsley 2006).

The agency of planners and developers can affect the environmental benefits of EU environmental legislation as indeed they can affect the outcomes of planning (Lipsky 1980). For example, whether EIA and SEA/SA deliver positive outcomes for the environment depends very much on whether developer/applicant and/or planning authority are keen to use them as pro-active tools for environmental improvement, or as a minimalist, bolt-on compliance exercise (Weston 2011). Analysis of other Directives has found planning authorities not requesting, say, air quality assessments, raising issues of consistency.

Civil society is also important. Whether the various public engagement, monitoring, reporting and accountability mechanisms associated with EU environmental governance have any effect depends on whether there are organisations with the capacity and willingness to use them. Moreover, there are critics that would say that fostering engagement, by creating participatory rights, in practice does little to effect change – and may help to divert attention from – the underlying distribution of power (Moini 2011). Rights to participate need connecting to what it is that is up for discussion, which makes things like environmental standards (against which states could be held to account) very important.

Deeper commitments to growth and competitiveness

Certainly, EU environmental policy is susceptible to the critique that it does too little to tackle the fundamental drivers of environmental damage in growth, competitiveness discourse and growing travel demands – drivers which other EU policies, often also with the support of Member States, serve to promote (Franz and Kirkpatrick 2007). The way that the Common Agricultural Policy has driven production intensification to the detriment of the environment is a case in point. Viewed in this context, the environmental agendas promoted by EU legislation tend towards the 'light green', in that they mitigate rather than challenge unsustainable demands (see for example Ioris 2008; Herbert 2018).

3.7 Conclusions

The analysis presented here shows that the interface between EU environmental directives and planning varies in form and intensity between Directives and environmental policy area. Planning is essentially an aide to implementation for many directives, only becoming the prime delivery agent for EIA and SEA, with the regulatory and strategic planning powers of the system also being important with the Habitats and Birds Directives. The relevance of EU directives also varies between categories of development, with the joint effects of EU environmental directives and planning being most apparent for major, complex infrastructure projects and for plan-making.

Previous and commentary around the planning/ environment interface gives us relatively little indication of where we might head in future, or where particular problems lie.  Voluble calls for cutting EU red tape have not generally been matched by the identification of a large range of specific actions that could be cut. Consequently it may be a mistake to assume that there is considerable unexplored scope for regulatory simplification, post-Brexit.

However, there could be interpretative problems with this deduction. The absence of detailed prior commentary may reflect the fact that most parties have assumed that EU membership and therefore compliance with EU legislation was the future and this has framed their thinking.

This deduction also assumes there can be a clear separation from EU environmental legislation and a host of other factors that affect how planning, in concert with others, affects environmental outcomes. EU environmental legislation has been effective because it adopts a regulatory form, focused on clear goals, that aides monitoring and enforcement, backed up by robust EU mechanisms for doing so. Questions thus arise as to the merits of retaining or recreating these regulatory features post Brexit.

The documentary analysis has also indicated that it is difficult to disentangle the effects of EU legislation from the various policy-making, political and social factors that affect implementation (see also Arts et al 2012). It is far from clear that problems derive from EU legislation in any narrow sense. Given this, Brexit might be best viewed as an opportunity to addressing wider issues around the interface between environment and planning in the UK, including those that have home-grown causes.

 

[1] From George Eustace, agriculture minister.

[2] RTPI Response 10th October 1997.

[3] RTPI responses 8th January 2010 (Northern Ireland) and 22nd January 2010 (London office).

[4] RTPI responses 28th January 1998 and 12th March 1998.

[5] The main area where there has been analysis of the effects of planning on the delivery of infrastructure required to meet the goals of EU directives is for the Renewable Energy Directive, but this is not the focus of analysis here.

 

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