RESPONSE TO SECOND CONSULTATION PAPER
ON CHANGES TO THE DEVELOPMENT CONTROL SYSTEM
The UK Environmental Law Association (UKELA) is the UK forum which aims to make the law work for a better environment and to improve understanding and awareness of environmental law.
UKELA’s members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non lawyers and has a broad and growing membership. UKELA is the network for those interested in environmental law in the UK and key issues including biotechnology, insurance and liability, climate change, IPPC, environmental impact assessment, waste, contaminated land, water, planning and sustainable development. It includes working parties on Environmental Law in Scotland and Northern Ireland and is particularly concerned that all countries within the UK have the best quality environmental legislation and adequate resources for implementation. UKELA was formed in 1987 and has around 1,000 members. They include both corporate and individual members, based mainly in the UK but also overseas.
UKELA would like to thank the ODPM for the opportunity to comment on the second consultation paper concerning proposed changes to the Development Control System. UKELA’s views are set out below:-
Although the Second Consultation Paper covers five areas of possible change to the Development Control System (outline planning permissions, electronic payment of planning fees, decision periods for major applications and the validity of planning applications), UKELA only consider the proposed introduction of Local Development Orders (“LDOs”) and the proposed extension of the detemination period for major applications to thirteen weeks to raise significant environmental issues.
LDOs
UKELA recognise the three options available to the government in respect of LDOs; 1) do nothing; 2) give Local Planning Authorities (“LPAs”) the power to make LDOs subject to restrictions in respect of environmentally sensitive areas; and 3) give LPAs the power to make LDOs in respect of any site with the exception of Schedule 1 sites within the meaning of the Environmental Impact Assessment Regulations 1999 (“EIA Regulations”).
While UKELA recognise the need to speed up the planning system and the increased levels of certainty in the planning system that LDOs may offer, UKELA maintain that these potential benefits should not be pursued at the expense of environmental protection. Hence, UKELA note that the government’s preference is for option 2) i.e. to enable LPAs to make LDOs within certain parameters thereby protecting environmentally sensitive areas. This will entail excluding the scope of LDOs from:-
1)Schedule 1 development within the meaning of the EIA Regulations,
2)conservation areas, listed buildings; and
3)European Sites or those European Sites within the vicinity of the area covered by an LDO.
UKELA supports the government’s stance in this respect and suggests that option 2) offers the right balance between addressing developers needs and maintaining acceptable levels of environmental regulation. The retention of the requirement to carry out an EIA in respect of Schedule 2 development and the exclusion of Schedule 1 development within the meaning of the EIA regulations together with the other exclusions listed above provides sufficient environmental protection.
UKELA suggests that option 3) would entail too much deregulation and would undermine the checks and balances put in place by the EIA regulations and the European Sites Regulations. The process of consideration of the environmental consequences of development and the mitigation of the environmental impact of development during the planning process would be undermined. UKELA further suggests that embracing option 3) would lead to less public accountability in the planning system and would would lead to potentially environmentally unsustainable development, despite the retention of the Secretary of State’s ability to call in LDOs.
Although UKELA recognises option 1) (do nothing) would have no obvious negative environmental effects, UKELA also acknowledge the potentially positive role of LDOs in the planning system and prefer the introduction of option 2).
UKELA recognise the potential for LDOs to have a positive environmental role. Potentially, they will facilitate development on a local level with appropriate environmental constraints, thus improving the quality of the environment in a local context.
UKELA’s has two concerns in relation to LDOs. UKELA foresee practical difficulties in conducting an effective EIA in relation to an area covered by an LDO. An effective EIA requires the subject development to be defined with a degree of certainty. However, LDOs will presumably define the development which they permit in a ‘broadbrush’ manner. UKELA believe this issue needs to be addressed and clarification provided as to the role (if any) of Strategic Environmental Assessments in the preparation of LDOs.
In addition, UKELA suggest that issues of public accountability and lack of public engagement in the planning process may be raised by the proposed system for the production LDOs. Despite the requirement that a Statement of Reasons be issued and the same consultation procedures as those required for the production of supplementary planning documents be complied with, UKELA consider that strategic decisions will be made prior to the issue of LDOs via the issue of LDF’s. Whilst early strategic involvement of interest groups in the planning process is clearly desirable in minimising conflict, the experience of UKELA’s contributors suggests that the public find it difficult to engage in policy making at such an abstract level and would therefore be potentially frustrated by a lack of opportunity to make their views known when the content of LDOs is being determined.
Determination period for ‘Major Applications’
UKELA has concerns that the extension of the determination period for ‘major applications’ to only thirteen weeks could compromise the full consideration of the environmental implications of such schemes. UKELA also suggests that the intention to limit the consideration of major applications to thirteen weeks does not match the reality of staff shortages and pressures imposed by objections and public requests encountered by most LPA’s. In an increasingly complex world, greater resources and recruitment will be vital if high quality decision-making is to be delivered more rapidly.
On a more general note, we also consider it vital that issues of greater access to environmental justice be addressed if public confidence in the development control system is to be retained and enhanced in line with the Aarhus Convention. While it is to be fervently hoped that confrontation can be minimised through the consultation process, or through call-in by the Secretary of Sate, it is of concern that valid challenges to consents are strongly discouraged through onerous costs and other requirements of Judicial Review, which remains the only effective local route for redress available at present.
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