Planning Advice Note 51: planning, environmental protection and regulation

The Planning Framework

32. Planning authorities and environmental protection bodies have different powers and functions which can on occasions overlap. It is however a long established policy that the planning system should not be used to secure objectives that are more properly achieved under other legislation. However, there are also cases where the planning system may be the most appropriate mechanism to provide environmental protection or improvement. This section gives advice on their respective roles. The Annex provides details of ten environmental protection regimes that are administered by a number of bodies.

Development Planning

33. The Planning Bill contains proposals to publish a second National Planning Framework ( NPF2) which is intended to be a more powerful instrument than the first NPF for securing delivery of national policies and programmes. Key to this will be early involvement with the main national agencies to ensure coordination with their policies and programmes. The Bill also contains proposals to alter the Development Plansystem by replacing Structure and Local Plans with Strategic Development Plans and Local Development Plans in the four largest city regions and a single tier of Local Development Plans across the rest of Scotland. One element of the proposals will be the designation of key agencies for development planning. They are likely to include SNH, SEPA, Local Enterprise Companies and Scottish Water and others may be added to the list. It is the intention that these bodies provide information and expert opinion at an early stage which should provide the opportunity for issues concerning the environment to be addressed by responsible public bodies. Until the Planning Bill receives Assent however, the existing approach is still relevant as outlined below.

Structure Plans

34. The environment has always been a central concern of structure plans. They have to reconcile the requirement for development with the protection of the environment at the strategic level. Their interaction with River Basin Management Plans, strategic waste management, contaminated land and air quality may typically raise strategic issues. For other issues, environmental protection regimes are less likely to have implications for strategic planning . Consultation with the environmental protection bodies will clarify matters. Issues which may give rise to concern in specific instances include:

• where River Basin Management Plans identify serious water quality issues across a large area;
• where development is proposed in areas subject to drainage consent;
• where development is proposed in or adjacent to areas of flood risk;
• in areas where existing concentrations of activity such as industrial or petrochemical plants have a significant influence on the nature, scale and location of future development or redevelopment;
• where a location has to be safeguarded for major development which is likely to have significant implications for the environmental protection regimes; and
• when the structure plan strategy is dependent on the re-use or improvement of formerly developed land it will be important to demonstrate in general terms that the environmental protection issues have been considered alongside the planning issues.

Local Plans

35. If a structure plan has identified a general location where there are special environmental protection concerns, these should be set out in the local plan, any implications explained and, as appropriate, the area(s) identified on the proposals map. The most suitable way to do this may be by defining areas within which particular consultation arrangements apply.

36. During local plan preparation it is good practice to work with the environmental protection bodies so that the planning implications of the environmental protection regimes can be taken into account. Local plans may also need to refer to particular environmental protection regimes if they are likely to impose constraints or limitations on development or particular uses of land in a specific area. This may take the form of a policy or the identification of an area where consultation on specified types of planning application is required, for example with SEPA. In some areas the local plan may have to acknowledge that because certain capacity or environmental thresholds have been or are likely to be reached, further development is unlikely to be permitted unless it incorporates measures to address the environmental constraints. Situations of this nature have arisen in some rural areas where the cumulative effect of development has given rise to concern over further discharges to water courses, however, it can also be an issue in some urban areas.

Development Management

37 . The main interaction between the planning system and the environmental protection regimes occurs during the preparation of a development proposal and its consideration through the development management (formerly development control) process. Nevertheless, because planning applications have to be determined in accordance with the development plan, it is vital that the environmental protection bodies contribute fully to the preparation of development plans and do not rely only on their role in development management. That emphasis is reinforced in the Planning Bill as explained above. The following paragraphs give advice on a number of issues relevant to development management.

Respective Roles - Planning System and Environmental Protection Regimes

General Principles

38. The policy basis for the relationship between planning authorities and environmental protection bodies and the application of their respective powers is set out in Scottish Planning Policy 1 - The Planning System and is quoted in full at paragraph 2 above. In summary it states that planning decisions should be made on planning grounds in the public interest and should not be used to secure objectives achievable under other legislation or powers. However, the issues controlled under other legislation may be material considerations, for example the impact of a proposal on air or water quality, even though the regulation of emissions or discharges fall to be dealt with under other legislation. Likewise, when SEPA comments on a planning application and is also the environmental regulator, it should assess the land use aspects of the planning application to clarify whether, on the information available at the time, the proposed development is potentially capable of being consented under the licensing regime.

39. A grant of planning permission can be said to "establish the principle of development" but this is only relevant to planning. It carries no weight so far as environmental protection regimes are concerned. The granting of planning consent does not therefore establish anything so far as other licences, permissions or authorisations are concerned, and they have to be determined according to their own requirements. A valid planning consent must be in place, however, before a Waste Management Licence ( WML) or PPC permit can be issued. Nevertheless, the aim should be to avoid situations where planning consent cannot be implemented because other environmental controls cannot be satisfied.

40. Planning powers are therefore not an alternative means of controlling matters which are properly the responsibility of the environmental protection regimes. Each means of control should be used as required by its own legislation, but when two or more are relevant to the same project it is imperative that they complement each other. Generally, the planning system has a wider remit in relation to the protection of the environment than any specific regime. This is because it is concerned with the proper use of land and buildings and with the sum total of the effects which a development has on its surroundings and the environment. It also has to take into account a wide range of non-environmental factors and therefore it will not always deliver environmental protection above any other consideration. Hence it is of a different character to the more specific environmental protection regimes.

41. This difference in their roles may be approached by examining the relative abilities of the planning system and the environmental protection regimes to secure environmental objectives. There is no absolute answer to this but the planning system is probably most able to protect aspects of the environment which are expressed in spatial terms, e.g. a conservation area, a residential area, an SSSI or a National Nature Reserve, where a proposed development could have a demonstrable effect on the area and any occupants. The effect may be quantifiable, qualitative or a matter of perception. e.g. noise or light affecting a nearby residential area. It is probably less suited to protecting the environment when the effect arises from a process rather than from the presence of the development itself and when it has to be quantified in terms of an emission to a general environmental medium , such as for example, a non-material change to the plant design and layout of a Part B process to satisfy a PPC permit. It follows that in considering a proposal for a potentially polluting development the planning system should address the general suitability of the location or site. It may also be appropriate to ask what pollution issues/events should planning seek to control because they are beyond the scope of the environmental protection regimes?" See also paragraphs 51 - 54 below.

42. The research report, (The Interaction between Land Use Planning and Environmental Regulation-Scottish Executive Social Research 2004- ISBN 0 7559 38135), showed that only a very small percentage (0.1%) of the total planning applications across Scotland were also subject to PPC and WML regulation, although these were mostly major applications. A greater percentage (1-2%) will be subject to CAR applications, although they will tend to raise less significant planning issues individually but cumulatively they could raise issues for SEPA in terms of impact on the aquatic environment.

43. There may be circumstances where the environmental protection body is satisfied that their requirements in relation to a proposed development can be met, but the planning authority takes the view that, because of the particular characteristics of an area, the development is unacceptable on environmental grounds and planning permission may have to be refused. In such cases, which are only likely to arise in exceptional circumstances, the planning authority will need to demonstrate the land use planning reasons which have led them to conclude that the proposed development is unacceptable. It is also possible that a proposal which is acceptable on planning grounds may be unacceptable to the environmental protection body.

44. Questions often arise over whether planning permission and licences or authorisations should be sought simultaneously or sequentially. In theory, there may be time and cost savings in having them processed at the same time, so far as possible, even if the formal approvals or authorisations have to be granted in sequence. This approach may help to minimise the complications and delays which can occur where amendments or alterations to a proposal under one regime may carry significant implications for another. It is recognised however that many developers prefer to obtain planning permission before incurring the expense of working up the details of a scheme which are required under a specific environmental protection regime. Regardless of how respective applications are considered, what is essential, is that adequate information is provided so that all the relevant regulators are consulted and can make informed recommendations at the planning application stage.

Pre-applicaiton Discussions

45. In the case of larger or more complex developments it will be helpful for developers to discuss their proposal with the planning and environmental protection bodies in advance of applications being submitted. It is proposed in the Bill that statutory pre-application consultation with the local community will be introduced for certain types of major development and such consultation will be encouraged for other development. Additionally, the pre-application negotiations between applicants, planning authorities and environmental protection bodies will be encouraged and should provide an opportunity to consider the development in principle and to influence its design so that potential problems are resolved or reduced. In those discussions, the planning authority should make clear what information they will require in order to reach a decision. Some of that information may be available through the environmental protection body, for example, where the application of 'best available techniques' ( BAT) will require approval of the design, construction and layout of buildings. Any conditions that are likely to be imposed under pollution controls, such as minimum chimney height, can then be taken into account in the planning application. The planning authority may in this way be able to avoid or minimise discrepancies between the requirements of environmental protection regimes and the planning system.

Consultations, Representations and Objections

46. There is a statutory requirement to consult a number of bodies, including SEPA, on specific types of planning applications as set out in Article 15(1) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (as amended). Other applications can also raise pollution control issues on which specialist advice is required, for example, developments within a certain distance of the site boundary of a process which is subject to PPC or other authorisation. SNH is also a statutory consultee (see paragraph 26).

47. Planning authorities may therefore wish to identify in discussion with the environmental protection bodies, those types of planning applications in which they might have an interest and would want to be consulted. These arrangements may well vary according to the type of development and the nature of the area but the objective would be to put in place effective working relationships and keep them under review. When a planning authority is consulting it will help the consultee if the issues on which advice is required are identified as precisely as possible. Efficient consultation procedures ought to help reduce the risk of delays that may place unnecessary costs on a developer. One means of improving this exchange would be for applicants to be required to identify on their application forms any other consents that have been obtained or will be required to fully implement the development, to ensure that the relevant regulators are consulted at the planning stage. Similarly local authorities should always respond to SEPA when they are consulted on PPC applications, and include in their response any relevant planning consultations and permissions.

48. Representations or objections by environmental protection bodies should be made on planning grounds and should not seek to duplicate specific environmental protection controls. They should be mindful that they are indicating whether they object to a grant of planning permission or whether conditions should be attached to an approval, on the basis of the information held at the time. These bodies are not commenting in their role under other environmental protection legislation. They should make it clear that their comments on a planning application are without prejudice to their regulatory function(s). Hence it is possible for environmental protection bodies not to object to a planning application because the proposal is generally acceptable but refuse the more specific authorisation because the more stringent controls cannot be satisfied. Equally they could object to a planning application on land use grounds while still being able to approve the proposal under environmental protection legislation. The planning system role is to provide a general level of environmental protection though it may be more specific where the issue(s) have a spatial character such as in a designated area. While considerable importance is attached to the efficient and timely operation of the development management process, public health and safety remain overriding concerns.

Material Considerations

49. All determinations of planning applications must be made in accordance with the development plan unless material considerations indicate otherwise (Town and Country Planning (Scotland) Act 1997, section 25). In practice, the scope of material considerations is fairly wide and falls to be determined in the circumstances of individual cases. Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to a proven impact on health, is capable of being a material consideration, insofar as it may arise from any land use. Where however a proposal requires licencing under the Pollution Prevention and Control Regulations planning authorities should accept that as adequate and suitable for public health protection (see PAN 63 paragraph 85). SPP1 - The Planning System lists the considerations which will usually fall to be regarded as material, and considered alongside the provisions of the plan. Whether authorisation or licensing under another regime would be approved or refused is not a material consideration although whether a proposal was 'capable of being licensed' would be. Provision of adequate drainage should be a material consideration in cases where SEPA would not grant a consent to discharge drainage from a housing proposal to a watercourse and no other means of drainage is available.

50. In the specific context of planning proposals which raise environmental protection issues, the following considerations might also be regarded as material by the planning authority, as appropriate:

• the sensitivity of the area, in particular as reflected in landscape, agricultural land and soil quality, nature conservation or archaeological designations, if evidence suggests that there is a risk of such features being affected by pollution;
• the positioning of buildings and plant on the site and the visual impact of the development, including for example, the impact on the road network;
• the hours of operation required by the development where these may have an impact on neighbouring land use;
• the possibility that the release of smoke, fumes, gases, dust, steam, smell or noise might result in nuisance or loss of amenity, taking into account the possibility that the pollution control equipment might have to compensate automatically and safely in the event of it failing;
• the effect of a cumulative impact arising from several similar applications in a relatively confined area, e.g. provision of several floodlit pitches close to residential areas; and
• the RBMP and the environmental objectives for water included therein.

51. There may be other considerations which are material to a land use planning decision but which may, nevertheless, be best addressed by the relevant environmental protection regime. For example, these may include:

• the potential impact of any discharge of effluent or leachates which may pose a threat to water resources or adjacent land;
• storage of hazardous materials and waste on site - Hazardous Substances are controlled by the Hazardous Substances Consent ( HSC) procedure (see paragraphs 66-68);
• the water flow regimes within a watercourse arising as a result of proposed development;
• ensuring the free passage of migratory fish; and
• the physical modification of the form and structure of the banks and bed of a stretch of watercourse.

52. It follows that when a planning authority receives representations or objections on matters which are more properly dealt with under an environmental protection regime and which do not have land use planning implications, it is unlikely that they will need to attach any weight to them. The planning authority may, however, decide to pass a copy of any representations which concern environmental protection control to the relevant body(s). There remains the possibility that despite the above, nuisance effects on neighbours arising from such proposals, may still raise planning issues. Similarly, any requirements for changes to licensing to further mitigate environmental impacts of established development may require amendments to the existing planning consent.

Use of Conditions

53. Planning authorities have wide powers to impose conditions when granting planning permission and these are explained in SODD Circular 4/1998: The Use of Conditions in Planning Applications. As well as setting out 6 tests for assessing the validity of conditions, the Circular goes on to indicate that where there are matters which are subject to control under separate legislation a condition which duplicates the effects of other controls will be unnecessary. Even where a condition does not precisely duplicate or conflict with another control, differences in requirements can cause confusion and it is best to avoid attempting to solve problems by the use of planning conditions where more specific controls exist. In the exercise of their own responsibilities, planning authorities can assume that environmental pollution bodies will exercise their responsibilities effectively. It is unlikely therefore, that a planning condition which merely duplicated other controls could be justified on the grounds that the planning authority assumed that the other controls would not be exercised effectively.

54. A planning authority may however decide that a condition is needed to control a matter, even though it is also regulated by an environmental protection regime, because the considerations which are material to decision making under the two systems are substantially different. This is because pollution controls may not be exercised in the manner or to the degree needed to secure planning objectives. Conditions relating to the hours of operation of a plant or installation which are intended to protect residential amenity might come into this category, but it is very unlikely that conditions would be appropriate as a means to seek to control the level of emissions from a proposed development which was also subject to pollution control.

55. The process of consultation with the relevant environmental protection authority will help to ensure that conditions are based on valid information and do not duplicate or conflict with conditions that are more appropriately imposed through the relevant pollution control authorisation or licence. Statutory nuisance is not a prior approval regime and it would therefore be acceptable to use planning conditions to secure the aims of the environmental regulatory system in such cases as appropriate.

Enforcement

56. A planning authority's responsibility for the control of development does not end with the grant of planning permission. It is important to ensure that development is carried out with the benefit of planning permission and according to the terms and conditions of that planning permission. Failure to do so can have serious consequences for amenity and the environment. Local authorities should always seek to take enforcement action against breaches where serious environmental harm is likely. This is an issue of particular concern to Scottish Ministers. Effective enforcement of planning controls is essential to ensure both that developers comply with planning legislation and to maintain public trust and confidence that the planning system operates to protect amenity and the environment. The White Paper: Modernising the Planning System set out a range of measures intended to improve delivery of planning enforcement. These have been refined in the Planning Bill. In particular the Temporary Stop Notice should enable planning authorities to stop immediately any unauthorised activity or development where they believe there is a threat to the environment or amenity. Additionally for developments with permission the Start Notice provisions are intended to encourage planning authorities to be more pro-active in monitoring and controlling developments where there are significant environmental concerns.

57. Consultation with environmental protection bodies on specific applications for planning permission can also be used to clarify the respective roles in relation to monitoring the operation of development and identifying responsibilities for taking action should there be a breach of planning control. A clear definition of responsibility is particularly important where breaches of control could have adverse implications for public health and safety. Again, the general principle is that planning authorities should not seek to take action under planning legislation where specific processes and duties are placed on other bodies. There are, however, likely to be circumstances where the environmental protection body will be required to carry out measurements or give technical evidence in respect of an enforcement notice being served under planning legislation to secure land use planning objectives.

Strategic Environmental Assessment

58. The Environmental Assessment (Scotland) Act 2005 requires public sector strategies, plans and programmes to be subject to strategic environmental assessment ( SEA). This is a systematic, iterative process for assessing the likely significant effects on the environment of implementing a plan, programme or strategy and taking those effects into account during the plan's preparation. The environmental effects may include effects on any aspect of the environment though in the context of this PAN the most relevant may be biodiversity, human health, fauna, flora, soil, water and air. In a plan led system SEA has a very important role in environmental protection. A research report by David Tyldesley Associates published in 2003 gives advice on the SEA of development plans (Environmental Assessment of Development Plans SEDD 2003.) Guidance is also available through SEDD Circular 2/2004 Strategic Environmental Assessment for Development Planning.

Environmental Impact Assessment

59. The Environmental Impact Assessment (Scotland) Regulations 1999 require the submission of an environmental statement with the planning application for certain types of development. These Regulations are explained more fully in SEDD Circular 15/1999 and PAN 58. Consultation with environmental protection control authorities is an important aspect of identifying potential effects and suitable mitigation measures. It is good practice to use the Environmental Statement to provide all the technical information required for all permissions and licences, not just planning permission (see also PAN 63 - Waste Management Planning).

60. EIAs should identify those pollutants which are likely to be of concern given the characteristics of the development and its proposed location. It will also help the developer to identify those pollutants that do not require monitoring or prediction. SEPA has a duty to provide information to those preparing Environmental Statements, and to advise planning authorities on the content of the Statements.

Further information on environmental assessment is contained in:
SEDD Circular 15/1999 The Environmental Impact Assessment (Scotland) Regulations 1999. Planning Advice Note 58 Environmental Impact Assessment SEDD 1999

Local Air Quality Management

61. The Scottish Executive Local Air Quality Management - Revised Policy Guidance 2003 sets out the relationship between air quality management and planning (see Chapter 7). Local authorities may also wish to refer to the general advice contained in the good practice guide on air quality and land use planning prepared by ARUP Environmental for the Royal Town Planning Institute in 1999, and Development Control: Planning for Air Quality, published by the National Society for Clean Air and Environmental Protection in 2004 and a 2006 update. Where appropriate the planning, transport and air quality functions of local authorities should work together.

62. In Air Quality Management Areas ( AQMAs) or adjacent to them, air quality is likely to be a material consideration for large scale proposals or if they are to be occupied by sensitive groups such as the elderly or young children or are likely to have cumulative effects. This does not mean that all such applications should be refused even if they are likely to affect local air quality, but it may mean that conditions have to be applied to mitigate adverse effects. Generally, it may be necessary to consider whether a development could lead to the designation of a new AQMA or if granting planning permission could conflict with an Air Quality Action Plan.

63. Planning authorities will wish to consult environmental health officers in appropriate cases. A study of air quality issues may be warranted, particularly for proposals which are likely to have a significant impact on air quality. It may however be an integral part of an environmental impact assessment. Planning authorities may also need to consider the cumulative effect of developments on air quality leading to a gradual deterioration.

Noise and Nuisance

64. This Planning Advice Note summarises the role of Planning in addressing noise, but more detailed advice is given in PAN 56. The Planning system is (with the exception of PPC which controls noise from Part A installations) the only means to address these issues in anticipation, before problems arise. Statutory Nuisance is often only used as a method of last resort and is limited in its scope to abate a nuisance. In addition, grounds for appeal include, in the case of a notice served on a trade or business premises, best practicable means being used to prevent or counteract the effects of the nuisance.

65. Noise and Nuisance may therefore be material considerations, both in terms of proposed developments that are likely to cause noise or nuisance and in terms of proposed sensitive developments which may be affected. This does not mean that all planning applications likely to result in noise or nuisance should be refused but it may mean that conditions have to be applied to mitigate any adverse effects. New noise or nuisance sensitive developments have to be carefully considered in relation to existing noise or nuisance emitting land uses, for example, social housing adjacent to busy roads or railways, or social housing adjacent to an existing noisy industrial use. In the latter example the local authority should seek to avoid situations where noise complaints from the new occupants would result in an abatement notice being served on the pre existing use. Planning authorities will wish to consult environmental health officers in appropriate cases, even where the issues are considered as part of an Environmental Impact Assessment.

Hazardous Substances

66. 'Hazardous Substances Consent' ( HSC) is required for the presence of a defined hazardous substance such as chlorine or liquid oxygen, at or above a 'controlled quantity'. The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 list the 71 hazardous substances concerned, the controlled quantities and sets out the consent procedures. In determining whether to grant consent, planning authorities have to consider the degree of risk to people in the vicinity of a plant which uses or stores a hazardous substance. While HSC is not strictly a means of controlling pollution, it is a way of protecting the environment.

67. HSC procedures are based on, but separate from normal planning procedures, though both are operated by the planning authority. In effect, the potential hazard posed by a new plant is no longer a consideration for planning permission. Accordingly, the exclusion from any use class (under the Use Classes Order) of any use involving a hazardous substance has been removed. The restrictions on permitted development rights (under the General Permitted Development Order) where hazardous substances are involved have also been removed. The effect of these changes is that some development involving use of a controlled quantity of a hazardous substance no longer requires an express grant of planning permission but instead hazardous substances consent is required for the presence of the substance. Therefore, it is quite possible for a plant to be granted HSC and refused planning permission, for example on the grounds of access, or vice versa.

68. In considering a HSC application the planning authority must have regard to the development plan, current or contemplated use of the site, use of land and planning permission in the vicinity, advice given by the Health and Safety Executive ( HSE) and any other material considerations. As set out at paragraph 31 above, a consultation paper was issued in August in respect of revised arrangements arising from amendments to the Seveso II Directive and draft Regulations then entitled "The Planning (Control of Major Accident Hazards) Regulations 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. A new Circular replacing SOEnD circulars 5/93 and 11/93 will accompany the new Regulations in due course.

Further information concerning Hazardous Substance Consent ( HSC) is provided by:
SOEnD Circular 5/93 Planning Controls for Hazardous Substances - The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993. SOEnD Circular 11/93 Planning Controls for Hazardous Substances - consequential amendments. SOEnD Circular 16/93 Hazardous Substances Consent - A Guide for Industry. The draft Planning (Control of Major Accident Hazards) Regulations 2005.