Memorandum submitted by Environment Agency (PB 11)









The Environment Agency welcomes the Planning Bill and its proposals to improve the system for handling nationally significant infrastructure projects. There are areas of the Bill that we believe should be strengthened however, in particular to secure a central aim to contribute towards the achievement of sustainable development and to further the objectives of the Climate Change Bill.


On this basis we consider:


National Policy Statements (NPSs) must meet four key tests (detailed below) in line with the statutory duty in the Planning and Compulsory Purchase Act 2004 to contribute towards the achievement of sustainable development.


The Infrastructure Planning Commission (IPC) which will be responsible for taking decisions on major infrastructure should be subject to an equivalent duty to contribute to the achievement of sustainable development. To carry out its functions effectively the IPC should be equipped to assess alternatives, with clear operating rules and relevant environmental expertise.


The procedure for Nationally Significant Infrastructure Projects (NSIPs) must not override existing environmental protection mechanisms such as the EU Habitats Directive. The Infrastructure Planning Commission should determine the merits of proposals based on both the NPS and the nature of the site under consideration (detailed below).


We welcome the reforms to the existing planning regime, and particularly the proposed requirement for development plan documents to include policies on climate change mitigation and adaptation. The same provision should apply to Regional Spatial Strategies.


We have concerns with regard to proposals for Local Member Review Bodies determining minor appeals and the availability of requisite expertise.


We welcome proposals for the Community Infrastructure Levy (CIL) and urge that this includes environmental infrastructure. We would hope to have a role in advising on the allocation of regional funds.



1.1 The Environment Agency is the leading public body for protecting and improving the environment in England and Wales. We have statutory duties to protect or enhance the environment and to make an appropriate contribution towards the achievement of sustainable development.


1.2 We play an active role in the spatial planning system at all levels, as an adviser to local, regional and central Government and in some cases as a statutory consultee. Our areas of interest include flood risk management, water resources and water quality, contaminated land, biodiversity and waste.


1.3 A key priority for us is to see the mitigation of, and especially adaptation to, climate change incorporated into planning decisions. We are similarly concerned that natural resources are used efficiently and that all construction is sustainable.




2.1 We welcome the principle of National Policy Statements. The provision of clear, unambiguous policy will go a long way to reducing the length of inquiries into national significant infrastructure proposals.


2.2 We support the requirement for the Secretary of State to act with the objective of contributing to the achievement of sustainable development when designating and reviewing NPSs (cl9). In exercising this duty, the Secretary of State should ensure that NPSs meet the following 4 tests:


1) NPSs must be framed within the five principles of sustainable development established in the Government's 2005 Sustainable Development Strategy.


2) NPSs must contribute to the achievement of the objectives established in the Climate Change Bill both in terms of mitigation and adaptation. They should be required to demonstrate their contribution to carbon reduction targets and ensure that infrastructure is resilient to the effects of climate change over its lifetime. This should include pressing for infrastructure to be outside areas at high risk from flooding and coastal erosion. These requirements should be included in regulations and guidance on NPSs.


3) NPSs must be subject to Strategic Environmental Assessment (SEA). SEA will help to ensure that the environmental impacts of NPSs are fully understood and contribute to the achievement of sustainable development. The Bill requires NPSs to be subject to 'an appraisal of sustainability' (c5(3)). SEA could form a constituent part of such appraisal. We consider that all NPSs are likely to fall into the definition of a 'draft plan or programme' under the SEA Directive and hence must include SEA.


4) NPSs must be fully integrated with other NPSs prepared by the same or different government departments. Policy conflict should be avoided, policy convergence should be maximised and resulting developments should optimise economic, social and environmental benefits. The Environment Agency should be a statutory consultee on NPSs and we would wish to be involved in early stages of drafting of the waste, water, wastewater and energy NPSs, for example.




3.1 The primary purpose of the Nationally Significant Infrastructure Projects system should be to help achieve sustainable development, in line with the statutory duty on planning in the Planning and Compulsory Purchase Act 2004.


3.2 The Bill includes a duty on the Secretaries of State that in exercising functions relating to NPSs, they must 'do so with the objective of contributing to the achievement of sustainable development' (c9). An equivalent duty must apply to the IPC as it has powers of discretion to take into account factors other than National Policy Statements in certain circumstances. The IPC should also be able to demonstrate how it has taken account of the climate change targets in reaching its decisions on NSIPs.


3.3 To function effectively the IPC needs clear operating rules, including the ability to assess alternatives and should have the necessary relevant environmental expertise. The Bill contains only general operating and proprietary rules for the IPC and does not go into detail on its membership. This could leave environmental issues without proper safeguards so it is essential these are covered in secondary legislation and/or guidance to the IPC.


3.4 We would welcome re-considertaion as to whether the IPC should be given responsibility for developments in the marine environment. This may be best left to the specialist Marine Management Organisation to be established in the forthcoming Marine Bill.




4.1 We support measures to improve the planning system however this should not be at the expense of existing safeguards for the environment. A major concern for us is that the proposed procedure for NSIPs could override important environmental interests such as internationally important habitats and species designated under the EU Habitats Directive.


4.2 We suggest that the IPC should be ultimately responsible for considering proposals that might adversely affect internationally important wildlife sites. The IPC will generally need to test the merits of sites, satisfy itself that the development proposer has shown there are 'no alternative solutions' and that the proposal is supported by relevant NPSs. NPSs should be used only as part of the evidence base for a claim of 'overriding public interest' by a project proponent. In cases where the NPS is site specific then the relevant Government department will need to have clearly demonstrated that there are 'no alternative solutions'.


4.3 The Environment Agency should be a statutory consultee (a 'prescribed person') for NSIPs and NPSs. NSIPs should also be subject to Environmental Impact Assessment Regulations.




5.1 We welcome the inclusion of clauses that streamline the development plan system - subject to safeguards to ensure the requirements of the SEA Directive are complied with. The Bill includes a number of provisions to make plan-making simpler and more flexible. These will be supported by a revision of PPS12 (Local Development Frameworks)(2004). However, the draft PPS12 says very little relating to environmental protection and enhancement, climate change or achieving the statutory purpose of spatial planning - contributing to achieving sustainable development.


5.2 We particularly support the inclusion of requirements for Development Plan Documents to include policies designed to secure that the development and use of land in the local planning authority's area contributes to the mitigation of and adaptation to, climate change (c147). This duty will be underpinned by the new PPS on Climate Change. The same provision should apply to Regional Spatial Strategies (RSS) and subsequently Single Regional Strategies when they subsume RSSs as part of the proposals in the Treasury 'Review of Sub National Economic Development and Regeneration'.


5.3 The Bill also includes provisions to reduce the number of planning applications and speed up appeals, including provisions to enable Local Member Review Bodies to determine minor appeals. We are concerned that with only very limited training elected members may not have the requisite expertise to be given the role of making impartial decisions on appeals. Unlike some planning committee decisions these require decisions entirely based on the planning merits of the appeal and not the concerns of the local electorate or political issues.




6.1 We welcome the inclusion of enabling clauses that will introduce a Community Infrastructure Levy (CIL). We would expect the CIL to enable provision of environmental infrastructure as well as other infrastructure such as transport, schools and affordable housing.


6.2 The CIL should work in combination with planning policy to send clear signals to developers to, in particular, support remediation of contaminated land, to avoid development in high flood risk areas, reduce flood risk overall, etc. Environmental Infrastructure should be a key item of expenditure for funds raised by the CIL and not an add on. In particular, it should include strategic flood risk management, innovative solutions to land contamination, waste water treatment and waste management.


6.3 Some of the CIL will need to be spent at the sub-regional or even regional level, for example in growth areas, and such regional funds should be allocated on the basis of clear and agreed infrastructure plans. The Environment Agency should have a role in this.