Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Nicholas Ostrowski and Natasha Hausdorff consider a new planning White Paper, publication of the Environment Agency’s latest scorecard and it’s State of the Environment Report.

Planning – all change

The government has an agenda to ‘Build, Build, Build’. But it is also seeking to change the rules that guide and control this in England. According to the PM, the White Paper “Planning for the Future” that is out for consultation (until October 29; link here) proposes to tear the planning system down and start again. There is also an intention to review the use of environmental assessments (both EIA and SEA) and habitats law later this year. The new system would put all the emphasis on zoning land in a revamped local plan, with all land marked as areas for Growth, Renewal or Protection. The amount of new development, especially of new housing, that the plans would have to be accommodate would essentially be set centrally. It would also require local authorities to rewrite and adopt their new-style Local Plans within a 30-month timeframe, introduce formal design codes, and treat development control as a matter of simply complying with the rules that these establish. The opportunity for local people and councillors to influence this would be therefore become limited to the plan-making stage. It is a lot to absorb, and there are several areas that are lacking in detail – in particular the intention to overhaul section 106 and CIL payments with a single nationally-set levy on development. It is worrying how 70 years of experience is to be thrown aside, and that the White Paper naively asserts that Local Plans should be subject to a single statutory “sustainable development” test, as “The achievement of sustainable development is an existing and well-understood basis for the planning system”.

The White Paper has certainly sparked a debate. But it is also essential to note that, whilst none of this can be in place before the end of 2021 as it will require new legislation, the government has already made some significant changes this summer. It has expanded the ability to use permitted development rights and has rewritten the Use Classes that apply to offices, retail and businesses by putting them all in a single new “Class E” – thereby expanding what does not need to seek approval. It does mean that the other potential controls – in building control, nuisance and environmental permits have taken on a greater significance and it can no longer be assumed that these issues will be scrutinised at the planning stage.

Environment Agency’s quarterly scorecard published – pollution incidents polluting the Agency’s performance

On 10 September 2020 the Environment Agency published its ‘corporate scorecard’ for the fourth quarter of 2019-20 (covering January to March 2020) which is intended to provide the Agency’s Board and DEFRA with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

The scorecard is full of numbers, tables and charts and uses a traffic light system to set out those targets which the Environment Agency is on track to hit, those which it may hit and those which it will probably fail.

The measures against which the  Environment Agency is assessed are spread across water, pollution, habitats, flooding, incident response and influencing planning decisions by local authorities. There are also ‘organisational’ targets  such as the management of the Environment Agency’s budget and the ethnic and gender diversity of its workforce.

One striking feature of this quarter’s scorecard is that, due to COVID-19, much of the data provided is either incomplete or estimated. This is particularly disappointing given that, as the final quarterly report, this scorecard should have given us the most comprehensive assessment of how the Agency had fared against its own targets over the course of the year.

With that caveat aside, the trend of the Environment Agency failing in its plan to reduce water pollution incidents continues. While there were fewer serious (category one) incidents involving water companies, there were a depressing 443 incidents in the quarter alone against a target of 400 such incidents. The other main negative is that the number of high risk illegal waste sites remains stubbornly high with 233 such sites as against a target of 196 sites. While the Agency fairly points out that this is a reduction in the number of active sites, it is still a surprisingly high number considering that this does not even purport to include illegal sites which are not deemed high risk and so may simply be the tip of the iceberg in terms of illegal waste sites.

There will also be disquiet at the lack of diversity in the Environment Agency’s workforce where only 4% of staff are from a BAME background as against a target of 14% and where only 43% of managers are female as against a target of 50%. The lack of BAME staff members in the Agency is now a deep-seated problem with BAME representation increasing only 1.15% over 12 years. With a budget of £1.3 billion one might fairly ask if the people who spend all this money really reflect the ethnic makeup of the country it serves.

Environment Agency’s State of the Environment Report: health, people and the environment

Last week the Environment Agency (EA) published its State of the Environment Report, focusing on the relationship between human health and people’s access to and connection with a clean, high quality natural environment.

The report presents information on England’s environment, and people’s exposure to environmental pollutants, flooding and climate change and highlights environmental inequalities that contribute to differences in health outcomes.

EA Chair, Emma Howard Boyd, highlights in her forward that the coronavirus  pandemic has exposed and amplified green inequality in society, with those in urban areas having too little green space, too few trees, culverted rivers, poor air quality and being at risk of flooding. According to the government’s initiative this summer to build back “better, greener, and faster” the EA is seeking to speed up sustainable development by helping developers meet regulatory requirements efficiently, providing advice so they get it right first time.

The report’s main findings are as follows:

• Air pollution is the single biggest environmental threat to health in the UK, shortening tens of thousands of lives each year.
• After air pollution, noise causes the second highest pollution-related burden of disease in Europe, and is responsible for more life years lost than lead, ozone or dioxins.
• There is emerging evidence of health effects from lower levels of pollution, although these are not currently well understood.
• Antimicrobial resistant microbes are becoming more common in the environment due to contamination, meaning infectious illnesses may become harder to treat.
• Mental health conditions are increasing – they are the largest single cause of disability in the UK, and can be caused or affected by pollution, flooding and climate change.
• There is substantial and growing evidence for the physical and mental health benefits of spending time in the natural environment, but children are engaging less with nature.
• Exposure to pollution, and access to the natural environment are not equally distributed across society – people living in deprived areas often have poorer quality environments with less accessible green space.
• Equality of access to, and connection with, a healthy natural environment would save billions of pounds in healthcare costs and reduced economic activity every year.
• There are opportunities to improve health through the choices government, regulators, businesses and individuals make in creating and contributing to healthier, greener and more accessible environments.

The report also illustrates some of the great improvements that have been made in the quality of England’s air, land and water, tackling the polluted legacy of the Industrial Revolution. Research continues to increase understanding of the sources, pathways and health impacts of pollutants, while regulation reduces harm caused. With the population of England expected to grow by around 6 million by 2043, the report anticipates increasing pressure on the environment caused by increased production and consumption of resources.

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