Planning Advice Note 51: planning, environmental protection and regulation

Legislative Context

11. This section provides an outline of the main environmental protection and pollution control legislation of which planners should be aware. It sets the context with a look at European law and then briefly summarises relevant Scottish Legislation. It also provides a brief explanation of SEPA's powers and responsibilities

The European Dimension

12. Much of our recent environmental protection legislation originates with the European Union ( EU), mainly in the form of Directives but also Regulations and Decisions. They are transposed into UK law either directly through Acts of Parliament, for example, the EC Framework Directive on Waste was incorporated into Part II of the Environmental Protection Act 1990, or through Regulations as was the case with Environmental Impact Assessment. The Council of Ministers can also issue Recommendations or Opinions which may have no binding legal force but may have an influence on policy. The EU has taken a common approach to tackling pollution and environmental protection by developing a broad range of measures. Of particular relevance to planning are:

• the Framework Directive on Waste and the Landfill Directive;
• various Directives associated with Water (including the Water Framework Directive, the Bathing Waters Directive, the Drinking Water Directive and the Urban Waste Water Treatment Directive);
• the Air Quality Framework Directive;
• the Seveso II Directive in respect of Major Accident Hazards;
• Access to Information on the Environment Directive;
• the Environmental Noise Directive;
• the Environmental Impact Assessment Directive;
• the Strategic Environmental Assessment Directive( SEA); and
• the Integrated Pollution, Prevention and Control Directive.

There are other EC Directives and policy measures which are also important though not part of a specific regime. The Directives on Habitats and Wild Birds have a number of implications for land use planning which should be recognised in development plans and development management decisions. These are briefly mentioned below and are more fully addressed in other planning guidance and advice, ( NPPG 14 and PAN 60). EC environmental policy also covers the environmental standards of traded products in order to maintain common standards and a level playing field throughout the Single Market.

13. The Sixth Environment Action Programme of the European Community, Environment 2010 : Our Future, Our Choice was established by the Decision of the European Parliament and the Council in July 2002. It constitutes a framework for the Community's environmental policy until 2012, with the aim of ensuring a high level of protection taking into account the principle of subsidiarity and the diversity of situations in the various regions of the community and of achieving a decoupling of environmental pressures from economic growth. It is based on the polluter pays principle, the precautionary principle and preventative action, and the principle of the rectification of pollution at source. It is wide ranging but identifies four priority environmental topics:

• Climate Change;
• Nature and Biodiversity;
• Environment and Health and quality of life; and
• Natural Resources and Waste

The Programme and Decision can be seen at http://europa.eu.int/comm/environment/newprg/

Scottish Environmental Protection Legislation

The Control of Pollution Act 1974

14. The Control of Pollution Act 1974 (Part II) ( COPA) (as amended - notably by Schedule 23 of the Water Act 1989 and Schedules 16 and 22 of the Environment Act 1995) has been superseded by the Water Environment and Water Services Act 2003 ( WEWS) and the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR), outlined below. The Control of Pollution Act Part III which controls noise from construction sites, and certain levels of road noise is still applicable.

The Environmental Protection Act 1990

15. The Environmental Protection Act 1990 controls many activities that are carried out, either on premises or by means of mobile plant, which are capable of causing significant pollution. These prescribed processes may operate only:

" if they hold an authorisation issued by the appropriate enforcing authority. For those that are potentially the most polluting or are technologically complex, the system requires that the processes be centrally controlled and that the authorisations must address discharges to air, water and land, thereby achieving the objective of 'Integrated Pollution Control' ( IPC)."

Environmental Protection Act 1990 Part I, A Practical Guide - Central Control, 1992, para 1.1

16. The main pollution control provisions of the Environmental Protection Act 1990 (as amended by the Environment Act 1995) are indicated below.

Main Pollution Control Provisions of the Environmental Protection Act 1990 (These provisions are not exhaustive)

Improving the control of pollution arising from certain industrial and other processes by introducing new regimes of Integrated Pollution Control ( IPC) and Local Air Pollution Control ( LAPC). The provisions of the Environmental Protection Act are being replaced between 2001 and 2007 by the Pollution Prevention and Control (Scotland) Regulations 2000. In Scotland, all PPC activities are regulated by SEPA. No distinction is made between PPC and LAPC. Installations are regulated according to their Part A or Part B status. Re-enacting the provisions of the Control of Pollution Act 1974 relating to waste on land, with modifications in respect of the functions of the regulatory and other authorities concerned in the collection and disposal of waste and to make further provision in relation to such waste. That includes the assessment of fit and proper persons to hold waste management licences and the extension of waste licensing to cover the treatment and keeping of waste. New controls in the 1990 Act require that waste management licences can only be surrendered where SEPA regards the condition of land to be satisfactory, and then a certificate of completion can be issued. Restating the law defining statutory nuisances and providing for the extension of the Clean Air Acts to prescribed gases. The statutory nuisance provisions initially applied to England and Wales and were extended to Scotland in April 1996. Conferring powers to obtain information about potentially hazardous substances and amending the law providing for control over the presence of a hazardous substance above its controlled quantity.

The Radioactive Substances Act 1993

17. The Radioactive Substances Act 1993 regulates the keeping and use of radioactive material and makes provision for the disposal and accumulation of radioactive waste. The Act consolidated, corrected and made minor improvements to previous Acts relating to radioactive substances.

The Environment Act 1995

18. The Environment Act 1995 established the Scottish Environment Protection Agency ( SEPA) and amended environmental legislation, in particular the Control of Pollution Act 1974 and the Environmental Protection Act 1990. The Environment Act 1995 repealed a number of provisions relating to noise and nuisance from the Public Health (Scotland) Act 1897 and the Control of Pollution Act 1974.

19. The Environment Act 1995 also included important provisions relating to contaminated land, abandoned mines and air quality, with particular regard to preparing a National Air Quality Strategy ( NAQS). With regard to contaminated land, the Environment Act 1995 provided local authorities with guidance on the identification of contaminated land and gave powers to issue remediation notices, details of which had to be held on a public register. It also enacted in Scotland, the provisions of Part III of the Environmental Protection Act 1990 relating to statutory nuisance.

The Water Environment and Water Services (Scotland) Act 2003

20. The Water Environment and Water Services (Scotland) Act 2003 ( WEWS) transposed the European Water Framework Directive ( WFD) into Scots Law. It introduces a planning system for the water environment with SEPA as the lead authority working alongside the public, private and voluntary sectors. The Act ensures that all human activities that can have a harmful effect on the water environment can be controlled by establishing a framework for co-ordinated controls on water abstraction and impoundment, engineering works near watercourses, and all forms of pollution to water. It also specifically establishes a system of river basin management to reduce levels of pollution and protect habitats. This will require the preparation of River Basin Management Plans ( RBMP). The WEWS Act gave Scottish Water the responsibility for the maintenance of public SUDS, provided that satisfactory design and construction standards are achieved.

21. SEPA will lead in the preparation of a single RBMP divided into 8 sub-basin plans plus a cross border plan for the Solway and Tweed catchments. Development plans will provide a starting point for the first RBMP so that where consistent with the legislative requirements of the WFD they can be accommodated in the policies and measures of the RBMP. Subsequently, the RBMP will inform the preparation of development plans and where appropriate will be a material consideration in the determination of planning applications with successive plans then informing each other. RBMP's will set out a programme of measures to achieve water quality objectives but policies for the development of land will continue to be set out in development plans.

The Water Environment (Controlled Activities) (Scotland) Regulations 2005

22. The Controlled Activities Regulations ( CAR) introduced under the WEWS Act provides the main regulatory controls for protecting the water environment from harm and the main regulatory tools to deliver the objectives of the Water Framework and Groundwater Directive. The Regulations introduce proportionate risk based controls to protect the water environment and promote the sustainable use of water. They introduce specific controls for activities affecting rivers, lochs, groundwater, wetlands, estuaries and coastal waters including discharges, abstraction, impoundment, engineering activities in or near watercourses and groundwater recharge. SEPA are responsible for implementing the Regulations.

Scottish Environment Protection Agency ( SEPA)

23. SEPA's overall aim is to provide an efficient and integrated environmental protection system for Scotland that will both improve the environment and contribute to the Scottish Ministers' goal of sustainable development. SEPA is responsible for a wide range of strategic and operational environmental matters including:

• controlling discharges to water (surface, tidal and ground water);
• authorising the abstraction and impoundment of water;
• authorising river engineering works in or near watercourses;
• controlling discharges and emissions to land, air and water from PPC Part A installations;
• controlling emissions to air from PPC Part B installations;
• minimising waste and promoting energy efficiency at Part A installations;
• licensing waste management and registration of waste carriers;
• registering the keeping and use of radioactive substances and the disposal of waste;
• regulating industry to prevent land being contaminated, licensing remediation works and causing 'special sites' to be remediated;
• acting as a statutory consultee for Local Air Quality Management; and
• minimising waste and promoting recycling in conjunction with the Scottish Executive and Local Authorities.

SEPA's General Duties with respect to Pollution Control

24. SEPA's pollution control powers shall be "exercisable for the purpose of preventing or minimising, or remedying or mitigating the effects of pollution of the environment" (The Environment Act 1995, Part I section 33(1)). The Pollution Prevention and Control Act 1999 and the Pollution Prevention and Control (Scotland) Regulations 2000 form the basis for much of SEPA's licensing powers for industrial activities.

25. SEPA is also required, for the purpose "(a) of facilitating the carrying out of its pollution control functions; or (b) of enabling it to form an opinion of the general state of pollution of the environment, to compile information relating to such pollution (whether the information is acquired by SEPA carrying out observations or is obtained in any other way)" (The Environment Act 1995, Part I section 33(2)).

SEPA's environmental protection powers and functions are under, or by virtue of, the following legislation:

(a) The Alkali, &c. Works Regulation Act 1906; (b) Part I of the Health and Safety at Work etc. Act 1974; (c) The Control of Pollution (Amendment) Act 1989; (d) Parts I, II and IIA of the Environmental Protection Act 1990; (e) Section 19 of the Clean Air Act 1993; (f) The Radioactive Substances Act 1993; (g) Regulations made by virtue of section 2(2) of the European Communities Act 1972, to the extent that the regulations relate to pollution; (h) The Environment Act 1995; (i) The Pollution Prevention and Control Act 1999; (j) The Pollution Prevention and Control (Scotland) Regulations 2000, as amended ; (k) The Water Environment and Water Services Act 2003; and (l) The Water Environment (Controlled Activities) (Scotland) Regulations 2005. The Environment Act 1995, Part I section 33(5)

Related Legislation

The Habitats Regulations

26. The Conservation (Natural Habitats, &c.) Regulations 1994 (known as the 'Habitats Regulations') which implement the EC Birds Directive Article 4(4) and the EC Habitats Directive Article 6(2) contain specific obligations to take appropriate steps to avoid significant pollution and deterioration of the habitats and in particular important areas designated under these Directives. In addition, the Ramsar Convention requires wetlands to be protected from pollution. Planning Authorities are expected to consider whether development plans or proposals could have a significant effect on a European site and, if necessary, for such plans to undergo an appropriate assessment. Scottish Natural Heritage ( SNH) are required to advise planning authorities and other agencies responsible for controlling pollution on whether development plans or proposals are likely to cause damage to natural habitats and to advise on appropriate measures to protect key sites. Government policy is set out in SOEnD Circular 6/95 Habitats and Birds Directives (updated June 2000). In particular, it draws attention to the Habitats Regulations which places a duty on both Ministers and all relevant public authorities to exercise their functions to secure the requirements of the Habitats Directive in relation to terrestrial sites and the marine environment. Further guidance has been issued in National Planning Policy Guideline 14 - Natural Heritage and PAN 60 - Planning for Natural Heritage on best planning practice. In addition the Nature Conservation (Scotland) Act 2004 places a duty on every public body to further the conservation of biodiversity.

Marine Protection - Food and Environment Protection Act 1985

27. The deposit of substances or articles in the sea or under the sea-bed within the United Kingdom or United Kingdom controlled waters is regulated by licensing under Part II of the Food and Environment Protection Act 1985 ( FEPA) (as amended). For the purposes of the Act "sea" includes any area submerged at mean high water spring tides and also includes, so far as the tide flows at mean high water spring tides, an estuary or arm of the sea and the waters of any channel, creek, bay or river. For United Kingdom waters adjacent to Scotland the licensing authority for devolved activities is the Fisheries Research Services ( FRS) of the Scottish Executive Environment and Rural Affairs Department ( SEERAD). Under the devolution settlement, deposits relating to oil and gas exploration and exploitation, but only in relation to activities outside controlled waters within the meaning of section 30A(1) of the Control of Pollution Act 1974 ie 3 miles from the coastal baseline, are reserved. All deposits falling within the subject matter of Part VI of the Merchant Shipping Act 1995 are also reserved. The Scottish Adjacent Waters Boundaries Order 1999 ( SI 1999 No. 1126) defines the waters that are to be treated as internal waters or territorial sea of the United Kingdom adjacent to Scotland. The licensing authority's powers are limited however for certain classes of operations by a number of exemptions contained in the Deposits in the Sea (Exemptions) Order 1985.

28. The main purposes of Part II of FEPA are the protection of the marine environment, the living resources which it supports and human health and to prevent interference with other legitimate uses of the sea. In determining applications for licences the licensing authority may also have regard to other matters that it considers relevant. The FRS is responsible for regulating the WFD required engineering controls in coastal and transitional waters. The majority of licences issued by FRS are in respect of the deposit of dredged material from harbours, the deposit of waste arising from industrial fish processing activities and the deposit of chemically inert materials in connection with coastal marine construction works, for example, sewage outfall pipes, marinas, harbours, offshore windfarms and foundations for roads, bridges etc. where they extend below mean high water spring tides.

29. All development proposals which extend below the level of mean high water spring tides require to be considered under Part II of FEPA by the licensing authority. Fees are charged for the costs associated with considering applications, undertaking examinations and tests, issuing licences and monitoring the effect of licensed operations. Marine construction works also need to be notified to the Ports and Harbours Branch of the Scottish Executive Enterprise Transport and Lifelong Learning Department who will consider the need for a consent under section 34 of the Coast Protection Act 1949.

Control of Major Accident Hazard Regulations

30. In November 1996 the European Council adopted a new EC Directive on the Control of Major Accident Hazards involving dangerous substances (commonly known as COMAH or Seveso II). This replaced the original Seveso Directive *and, inter alia, clarified and strengthened the existing provisions for environmental protection. Principally, the Directive is aimed at health and safety issues at installations with a major accident potential but it also addresses the environmental protection aspects of major accident hazards and mitigation of the effects on people and the environment. Seveso II has been implemented mainly through the Control of Major Accident Hazard Regulations 1999. Implementation and enforcement of the 1999 Regulations are currently the responsibility of The Health and Safety Executive ( HSE). Article 12 of the Seveso II Directive relates to land use planning and was implemented by the Planning (Control of Major Accident Hazards) (Scotland) Regulations 2000, which amended aspects of the Planning system relating to consideration of planning applications, preparation of development plans and hazardous substances consent applications. *(named after an Italian municipality where a chemical works exploded in 1976)

31. Amendments to the Seveso II Directive have now been made and the Control of Major Accident Hazards Regulations 1999 have been amended. As far as the amendment of related planning provisions is concerned, a consultation paper was issued in August 2005. The main changes to the current arrangements are a revised classification and definition of some dangerous substances and preparations, and changes to qualifying quantities that determine whether an establishment falls within the scope of the Directive. The new Planning (Control of Major Accident Hazards) (Scotland) Regulations 2006 should be in place by Autumn 2006.