Extensive Integration of SEA in Spatial Planning

Extensive integration of SEA in spatial planning

Introduction to spatial planning in Flanders (Belgium)

Spatial planning is a competence of theRegions in the federal state of Belgium (Flanders, Brussels capital region en Wallonia). Flanders is a region with full competence on spatial planning.

Spatial planning in Flanders is organised at three political levels: regional level, provincial level (5 provinces) and municipal level (308 local communities).A legally binding land-use plan or spatial plan with zoning regulations can be decided at those three levels. Such a plan is mandatory and legally binding for what is included in the geographical area covered by the plan. It is mandatory because as a result of a court ruling (Council of State), all land in Flanders has to be included in a spatial plan with anallocation of aspatial zoning. A spatial plan contains a legally bindingzoning plan and legally binding zoning prescriptions and regulations.

At the same time each of these political levels has to prepare and decide on a spatial policy plan for the municipality/province or the Flemish region.

Both the land-use plan and the spatial policy plan are the result of a planning process that is participatory. The spatial policy plan is partly binding for administrative authorities because it is a policy plan. The land-use plan is universally legally binding.

Land-use planning works together with the different social sectors (e.g. mobility, agriculture, nature,..) in order to help them to implement their plans and policy goals. Sectors might need a change/adaptation of a spatial plan in order to be able to realise their policy translated in spatial needs and land use planning.

Land-use planning and SEA

In Flanders, spatial policy plans are not mandatory subject to SEA. The land use plans are the legal framework for licenses and therefore subject to SEA (article 3, paragraph 2 and 3, of the European SEA Directive 2001/42/EC).The determining factor for an SEA is a plan that is likely to have significant environmental effects.

In the Flemish legislation at least an SEA screening procedure is required for each land-use plan; there is also the requirement for a screening of the obligation under the habitats directive and there exist also requirements for a screening according to other legislation e.g. the so called Seveso-directive, the EU integral waterdirective and the EU habitat directive.

Reason for changing the legislation on SEA and land-use planning

The implementation of the EU-SEA directive (2001) into Flemish legislation dates from 2002. Apart from changing the legislation on SEA in general, some findings resulted in changing the legislation on SEA in relation to land-use planning, this is the subject of this presentation.

In the Flemish region, SEA’s are mainly made for land use plans. Most social sectors need a change of land-use to realise their sectorial goals (road construction, new housing zones, protecting of natural habitats, water management plans,…).In the legislation on SEA there was not really in integration between a planning process and the procedure for an SEA, which resulted in difficulties to integrate both. The SEA for a land use plan is the responsibility of the initiating authority (region, province, local), but he quality control is the competence of a separate regional EIA unit. This EIA unit screens all land use plans and decides the content of the SEA for the land use plan. This is done by a separate SEA procedure. This has led to several problems:

-Land-use planning process and SEA - sequential procedures – different governmental entities take the lead: when SEA starts (in the beginning of the process), it takes over the process so the lead of the process changes from the land-use planning department (region, province or municipality) to the SEA unit (regional level only), at provincial level and municipal level that means the takeover by another governmental level;

-The separate SEA is not tuned tothe land use planning process, leading to superfluous information in the SEA, overloaded SEA reports, unfeasible alternatives, etc.

-The SEA is officially approved by the EIA administration and therefor ‘closed’ at a particular point when the planning process is not yet closed. When the following land use planning process results in new planning elements, not examined or included in the SEA, this will lead to a new SEA procedure because otherwise there might be legal conflicts and possible court cases;

-A separate public participation is organised for the SEA (in the beginning of the process) and another on the draft land use plan. Both participations processes are not coordinated;

-Tiering between the content of a spatial plan and a project is not enough reflected in SEA’s.

-Difficulties are encountered in the translation of the results of an SEA into the plan, mitigating measures are difficult to implement because not adapted to a spatial plan. The legal instruments of land use planning are not appropriate enough to deal with the different proposed mitigation measures in the accompanied SEA.

All these problems have lead to a lot of court cases resulting in rejecting and/or suspending the concerning land use plans during the last 10 years in Flanders.

In 2009 the spatial development department of the Flemish Region commissioned a study on the implementation of the SEA directive in land-use planning in some European Regions: Belgium - Brussels Capital Region, Belgium - Walloon Region, Scotland, Austria, Germany - Bavaria, Finland, Denmark. This study (Arcadis, 2009) examined specific topics of the implementation of the EU-SEA Directive in spatial planning. The main findings of this study were very resembling to the findings stated earlier by Eggenberger and Partidario (2000) and Stoeglehner (2004):

1. Integration: a strong integration of the (sectorial) land-use planning and environmental assessment; integration of the environmental aspect during the preparatory work/ the planning process and SEA is integrated in the legislation on land-use planning.
   The characteristics of integration. Quality control (of the SEA and other impact assessments) should be integrated in the planning process (no separate process for quality control), a continuous process instead of a ‘one time shot’ by a non-evolved administration;
2. Participatory process: participation in an early stage, early and transparent communication to the citizens at large and other stakeholders. This enhances support for the final land use plan.The characteristics are early participation,continuously, open (stakeholders can take part of the planning process) and transparent, ‘tailor made’ and integrated with the planning process and impact assessments.
3. A process with the right degree of formalism. Not everything should be written down in regulation. Necessary formal elements are:

-Obligation to inform the public early about the coming planning process, the explanation why this process is to be done and the relationship with other plans;

-Insurance of a qualitative SEA (and other assessments);

-The requirement to have ‘real’ participation, transparent and accessible;

-Transparency of the process andopen documentation;

-Transparency of the content of the land-use plan and of the decision-making process;

-Justification how the SEA is taken into account in the land use plan.

The findings of this study had an important influence on the new approach and legislationforthe integration of SEA and land-use planning in Flanders.

Key issues in the new approach on SEA and land-use planning

Legislation is a tool to implement a new approach but also achange of mentality and the role of the involved stakeholders and advisory bodies has to go hand in hand with the new legal requirements.

The (formal) steps in the new integrated planning process and the necessary documents are (see figure):

-The start note: prepared at the beginning of the planning process contains information on the aim of the planning process (including legal requirements), on the environmental (in broad sense) concerns to be examined orother concerns;

-A process note: this note describes how the process is to be conducted, which stakeholders are involved, how the process will progress or does progress;

-A formal moment of early participation (first participation): at an early stage where a discussion on the content of the start note is provided. Several advisory entities are to be consulted and the public concerned by different methods of participation (hearings, info markets, workshops, etc. and tailor made for every different planning process);

-A scoping note: the initial note evolves into a scoping note after the early participation, taking account of the results of the consultation/participation. At this stage, the EIA administration advises if the planning process could lead to significant environmental impact (screening and scoping together) and a further SEA should be integrated with the planning process;

-The preliminary draft land-use plan and the preliminary draft SEA;

-The draft land-use plan and draft SEA (and other assessment);

-Public enquiry (second participation);

-The final land-use plan and final SEA.

The characteristics of the “new” integrated planning process are:

Integration: The SEA is completely integrated in the planning process: i.e. the content, stakeholders and the procedural requirements are the same for the land-use plan and the SEA. The walls between environmental concerns and research and the planning process on the one hand and the SEA experts and land-use planners on the other hand are (in the process of being) torn down. The integration of SEA in spatial planning changes the original planning objectives to include environmental concerns (Elling, 2000). The SEA is optimized by the land use planning process and vice versa.

Participation: emphasis on early participation of not only stakeholders but also advisory entities and the public concerned. Planning processes are participatory but the level of participation is different from plan to plan and from municipality to municipality, from province to province. In recent years the importance of a larger and earlier involvement of civil society and citizens has become more important which is also reflected in the new legislation. There is a formal obligation for at least one moment of early participation at the beginning. In the new process, there are two formal moments of participation:

-Based on the start note: stakeholders (including the involved public) and advisory bodies are asked to participate and help the making up of the initial plan and to underline and include (environmental) concerns;

-Based on the draft land use plan and SEA: the public is asked to give their comments on the plan and SEA (= classic public enquiry).

Information: the need to inform duly is stressed because in order to have real participation, people have to be well informed. Hence the process note contains the information about where and what is to be published. The different steps and in particular the different documents are to be published.

An official planning team ensures the integration process: a multidisciplinary team to conduct the planning process. According to the scale, the level and the subjects of the planning process, different disciplines have to work together in a team to guarantee the quality, EIA experts are part of the planning team when impact is significant.

Reduction of the formal requirements to what is necessary: legislation contains only the necessary obligations: 1) not including procedural requirements that are not necessary; 2) reducing the obligation to the necessary rules, the danger for mistakes in the procedure is also limited. This is to avoid that the court can rejecta ‘good’ plan, because anunnecessary procedural requirement was not fulfilled.

The land use plan and accompanying instruments (ensuring mitigation measures)

This new integrated approach towards land-use planning and SEA also led to the search for a solution in order to implement as many concerns which are included in the SEA (e.g. mitigation measures) or which result from the planning process but that cannot be included in the land-use plan as such. A land-use plan in Flemish legislation is an instrument for regulating issues of land use (zoning and planning regulations). But during a planning and SEA process several collateral aspects and requirements are discussed and should be legally guaranteed. The question to be solved was here to find a method or instruments that could at the same time be agreed to organise other (environmental) than land-use issues. From the beginning it was agreed not to overload the land-use plan with issues, which are not directly covered by the denomination land-use. Therefore, other existing legal instruments such as land development rules, police regulations, land consolidation, etc. are formally linked to the land use plan to ensure specific mitigation measures. Next, two new legal instruments were introduced: 1) formal commitments (between as well as private and public parties) to ensure the implementation of measures, and 2) a special ordinance that allocates specific environmental (non-land use issues) restrictions to well-defined zoning (which can be overlay the land use plan).

This solution, which is adopted in the new legislation, is to make a clear link between existing instruments in different sectorial legislations: the main instrument is the land-use plan which contains zoning regulations, a graphic plan and the other instruments which are to be agreed at the same time.

The (bumpy) road to new integrated land use planning legislation

Obstacles: different language environment – land-use planning; different approach and mentality.

This new legislation is the result of the preparation by the Flemish regional land-use planning department with the SEA administration, the environmental department and some environmental and nature protection agencies. At an early stage the government decided on the principles of the new approach. It took another 2 years to get to a text to which could be agreed. The umbrella organisation of Flemish municipalities and cities, the umbrella organisation of Flemish provinces, the environmental and nature council of Flanders, the Economic council and the Land-use council were involved.

The main discussion among the different administrations involved has a lot to do about understanding each other’s language and approaches. It is very important that the planning team(formalby the new legislation), understands fully the necessity to integrate the SEA in the planning process and that the classical approach of making an SEA separate from this process is no longer the case. That including a long list of mitigating measures in an SEA is not the right way to improve a land-use plan from an environmental point of view, but that it is indeed important to take active part in the planning process discussions in order to integrate environmental concerns all along the process. Practice will be a learning process.

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