Strategic assessment guidance to planners at odds with EC views

Guidance to English planning authorities on how to implement the 2001 EU Directive on environmental assessment in respect of land use and spatial plans was issued by the Office of the Deputy Prime Minister at the end of October.1 The guidance is the first formal step towards implementation of the Directive in the UK - and it raises early concerns about whether the Government's perceptions of what is needed to comply are consistent with the European Commission's.

The legislation is known as the strategic environmental assessment (SEA) Directive (ENDS Report 317, pp 40-41 ). In broad terms, it always requires assessment of plans and programmes in the land use planning field and ten specific sectors such as industry, energy and agriculture, and assessment of others likely to have "significant environmental effects".

The Directive must be transposed into national law by 21 July 2004. In England, this will be done by secondary legislation on which the ODPM is due to consult shortly.

Nothing has yet been heard about the devolved administrations' implementation plans in Wales and Northern Ireland.

In Scotland, a partnership agreement signed after the election this summer committed the new administration to implement the Directive by primary legislation (ENDS Report 341, pp 42-43 ). However, in late October the Scottish Executive announced a change of plan - probably because there is insufficient time to get a Bill on the statute book by July.

Secondary legislation will therefore be used initially to implement the Directive. A Bill will follow some time next year with broader but as yet unspecified SEA requirements "covering all new strategies, programmes and plans set out by public sector bodies." The Executive's plans will be revealed shortly in a consultation paper on the draft regulations and the "broad policy" of the Bill, with a second consultation next year on the Bill's detailed contents.

In England, the new guidance on SEA for land use and spatial plans will be followed by generic guidance for sectors other than planning.

The planning guidance has been issued before implementing legislation is in place so as to avoid problems with "pipeline" plans. Although the Directive does not take effect until next July, any plans or programmes whose formal preparation begins before then must comply with the Directive if they are not adopted by July 2006. "This retroactive provision is likely to affect many plans which are already in preparation," the guidance notes.

The SEA requirements will oblige planning authorities to go beyond existing officially recommended practice on plan preparation in several areas:

  • Baseline data: There is greater emphasis on collecting and presenting baseline environmental information.

  • Scoping: The Directive introduces a mandatory "scoping" stage in the plan process. The Environment Agency, English Nature, the Countryside Agency and English Heritage are to be designated as bodies which planning authorities must consult about the contents of their assessments.

  • Alternatives: The Directive also lays stronger emphasis on the need to consider strategic alternatives to the preferred plan or programme and set out the reasons why they were rejected.

  • Explanation: Planning authorities will be under a formal obligation to take into account responses to consultation on the environmental report prepared as part of the SEA process, and then to explain in a statement at the end of the process how environmental considerations were integrated into the finished plan and how they took account of the public responses.

  • Monitoring: The Directive also introduces a duty on authorities to monitor the environmental effects of the plan as it is implemented. In most cases it appears likely that this can be discharged by a review of environmental effects when the plan itself comes up for a normal periodic review - though planning authorities will probably have to work harder in collecting available environmental data for this purpose than they do at present.

    One of the most difficult issues in implementing the Directive in England will be how to avoid confusion between its environmental assessment requirements and the wider environmental, social and economic assessments required by "sustainability appraisals". The latter are to be made mandatory for the new types of plan - regional spatial strategies (RSSs) and local development documents (LDDs) - to be introduced by the Planning and Compulsory Purchase Bill, which is still wending its way through Parliament.

    The ODPM intends to produce future guidance on sustainability appraisal which, it promises, will provide further details on its relationship with SEA. Meanwhile, it says, the new guidance "shows how SEA can be expanded into a sustainability appraisal, and how the differences between these two types of analysis can be reconciled."

    That guidance, it might be argued, is sometimes rather thin. For example, in setting out a proposed structure for an SEA environmental report, it says that this is also suitable for reporting on a sustainability appraisal - "but if an authority uses it in this way, it must show clearly the elements which meet the requirements of the Directive."

    That simple statement may not be quite enough, to judge by guidance on the SEA Directive issued by the European Commission this autumn.2On environmental reports, the Commission says that the wording of the Directive implies that they should form "a coherent text or texts", and if this is not produced as a free-standing document it should nevertheless "be clearly distinguishable as a separate part...and be easy to find and assimilate for the public and authorities."

    Another area in which there is inconsistency between the ODPM and Commission guidance is how the "reasonable alternatives" to a plan or programme should be handled.

    The ODPM's guidance puts forward a hierarchy of alternatives which should be considered in the plan-making process. This starts with "obviation" of demand - or options for avoiding the need for development - and then goes on to the how, where and when of development.

    The guidance then adds: "To keep the big issues clear, the alternatives considered at this early stage should not be elaborated in too much detail. Only the main differences between the alternatives need to be considered and documented."

    The Commission, by contrast, lays more emphasis on a level playing-field. It points out that the Directive makes no distinction between the assessment requirements for the proposed plan or programme and for the alternatives.

    "The essential thing," according to the Commission, "is that the likely significant effects of the plan or programme and the alternatives are identified, described and evaluated in a comparable way. The requirements [in the Directive] concerning scope and level of detail for the information in the [environmental] report apply to the assessment of alternatives as well."

    Last year's consultation paper on the draft guidance was, indeed, much closer to this interpretation, stressing that options should be considered "thoroughly and even-handedly" (ENDS Report 334, p 46 ).

    Efforts to minimise the Directive's impacts on planning authorities are evident in other parts of the ODPM guidance. It stresses, for instance, that authorities should set themselves a time limit for collecting baseline environmental data for their first SEA exercises rather than aim to be comprehensive. And, other than a quality assurance checklist, it does not put forward any proposals for meeting the Directive's requirement that environmental reports are of "sufficient quality".

  • SEA and the private sector: The Government has referred to the SEA Directive as applying to public sector plans and programmes, but if that is its full interpretation of the Directive then it may be heading for a conflict with the Commission.

    According to the Commission's guidance document, the case law of the European Court of Justice has determined that an "authority" subject to the Directive can include a body providing public services under the control of the state.

    "For example," it says, "privatised utility companies may be required to carry out some tasks or duties (such as preparing long-term plans for ensuring water resources) which in non-privatised regimes would be carried out by public authorities. In respect of those functions they would be treated as authorities for the purposes of the Directive."

    Much the same issue has cropped up over the EU Directive on public access to environmental information, but has never been tested in court in the UK. But it will be less easy to dodge with the SEA Directive.

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