§ 5.54 p.m.
§ The Earl of Cranbrook rose to move, That this House takes note of the report of the European Communities Committee on environmental assessment of projects (11th Report, H.L. 69).
§ The noble Earl said: My Lords, I move that this House take note of the report of the Select Committee on the European Communities, the 11th Report of this Session, on the environmental assessment of projects. The document under consideration by the Select 1312 Committee was the draft directive issued under reference 7972/80 or, under the Commission's reference, (80)313, which was forwarded to the then President of the Council on 16th June 1980. The draft directive is an element of the Community's environmental action programme, which has been the subject of an earlier report from the Select Committee, the fifth of this Session, and has also been debated in your Lordships' House on 6th April.
§ The aim of the present directive is to ensure that member states apply common procedures in the prior assessment of the environmental effects of proposed development projects. To attain this end the directive prescribes in some detail the procedures to be adopted in undertaking an assessment, including the nature of the information to be sought and the general form in which it is to be presented. It specifies the consultations that must take place and provides for public information on all issues.
§ The draft directive was reviewed by Sub-Committee G of the Select Committee, with the assistance of Mr. Brian Clark as specialist adviser. I should like to record the warm thanks of the Sub-Committee to Mr. Clark for his effective and valuable help. I should also like to record my personal thanks to Mr. Clark and to Mr. David Beamish, the clerk, for the odd and often uncongenial hours at which they were prepared to work in the final throes of drafting this report.
§ In the preparation of the report, oral and written evidence was received from sources which included the Department of the Environment. It also included European and British environmental and industrial groups; three firms of consultants with experience in the practice of environmental impact assessment, and also the national associations of local planning authorities. In addition, written evidence was received from one individual and from some 14 organisations of various kinds, presenting the views of a broad selection of affected interests, including planners, developers and other land-users, ecologists, and conservationists. On behalf of the sub-committee, I should like to express thanks to the witnesses for the time and trouble they took in coming before us.
§ With some small exceptions (in these cases the relevant papers are placed in your Lordships' Library) the evidence is printed with the report. The result is a bulky document of some 166 pages. I draw your Lordships' attention to the fact that also printed with the report is the text of the draft directive itself. Without this, committee members felt that items of detailed comment and criticism contained in the report and in associated evidence might prove hard to understand in practice. As it is, I feel that these red covers now contain material from a sufficiency of diverse origins, and presenting a wide range of viewpoints, and I hope that it will serve as a useful appraisal and as a background reference in the further discussions of this important proposal: not only those discussions taking place here tonight in your Lordships' House but others that will undoubtedly follow inside and outside this House.
§ I propose to concentrate in these few minutes on certain issues that seem to me sure to be raised again in the course of future debates on this draft directive, (80) 313. I should like to mention certain of these issues and to summarise the committee's views on 1313 them so far as I can. First, there is concern at the apparently limited scope of the directive. There is concern, that is to say, that it somewhat narrowly focused by concentrating purely on environmental aspects, and does not extend sufficiently to cover factors of social or economic significance.
§ The committee recognises that the social and economic factors, together with considerations of national policy where appropriate, must of course be taken into account by the developer and by the planning authority. All these are significant elements in the decision-making process. But this directive is intended to harmonise and to facilitate the proper assessment of factors in the environmental sphere. The approach taken is reasonable. The directive is not invalidated by failure to place equal emphasis on economic and social resources. To accept an environmental directive now would be a reasonable first step, and to do so would not be to prevent at a later date the preparation and examination of other proposals for systems which could assist the formalisation of the review of the impact of non-environmental factors.
§ Secondly, reservations have been expressed concerning the scope and content of Annexes 1 and 2 of the draft directive. Taken with Articles 4 and 5, Annexe 1 defines projects where an assessment would normally be mandatory, and Annexe 2 defines projects where an assessment may be required at the discretion of the planning authority. The committee considers that the provisions of Article 4 are essential for the proper functioning of the directive. Under existing legislation in the United Kingdom, it is already expected that any large development project of the type listed in Annexe 1 would normally be subject to inquiry procedures which took into account the likely environmental impacts.
§ Minor alterations to Annexe 1 may be desirable but in principle it is acceptable. None the less, there are potential difficulties of application if the present draft is closely followed. For instance, too rigid an adherence to a list of projects could lead to absurdity on some occasions. In the committee's opinion it will be necessary in many cases to take account not merely of the nature of the proposed development itself but also the context; that is, the characteristics of the local environment, the sensitivity of this environment to pollutants, and to other detrimental factors. The draft directive recognises that exemptions may sometimes be desirable for Annexe 1 projects but the procedure proposed is both cumbersome and onerous. It is envisaged that in every case there will need to be a separate reference to the Commission. The report recommends that an alternative procedure be sought.
§ The concept of thresholds also requires elucidation. Purely quantative thresholds—whether in terms of cost, labour requirements, size, or some other notion—are likely to lead to unsatisfactory and artificial divisions; that is, divisions between projects requiring assessment and those not requiring assessment. In the view of the committee, a partially subjective description is required, both for the circumstances in which Annexe 1 projects could be exempted from assessment and for the circumstances in which Annexe 2 projects should or should not be subjected to assessment. It will also be necessary at some stage—preferably within the text of the 1314 directive under revision—to define more precisely the nature and scope of the simplified form of assessment that is to be performed when it is appropriate.
§ Another issue which I personally feel sure will receive further notice in the United Kingdom is the inclusion of certain agricultural projects in Annexe 2. In this country, as your Lordships know very well, ordinarily agricultural enterprises are generally exempt from development control. For example, planning permission is not normally required for buildings below a certain size. In fact this topic was not followed up in detail by the committee but I do feel that it was worth noting that only four rather closely-defined types of project are included. They are land reform, cultivation of natural areas and abandoned land, water management—specifically, drainage, and irrigation—and intensive livestock rearing. In this country land reform is not a relevant issue at present. Otherwise, I note that all these are projects which fall within Annexe 2, for which an assessment is at the discretion of the relevant authority. Moreover, appropriate thresholds would presumably apply, involving such criteria as size, the sensitivity of the local environment, and its value in terms of conservation or landscape.
§ Given these three suppositions, I believe it is fair to ask, is it not true that the remaining types of project—that is to say, those other than land reform—are exactly those which are now arousing the greatest public concern in Britain and for which successive Governments have seen the need to set up mechanisms for enquiry, public consultation, and even some sort of control?
I now turn to Article 6 of Annexe 3 of the draft directive. These place the duty of preparation of the assessment on the developer, drawing on the assistance of the planning authority where necessary. In the opinion of the committee, the requirement to include descriptions of "reasonable alternatives for the site and design of the project" is justifiable and not unduly onerous. Differentiation between the respective roles of the developer and the planning authority presents a somewhat more knotty problem. On the one hand, if there is too close a relationship there will be suspicion of collusion. On the other hand, if there is inadequate co-operation and interchange of information, the system could fail to function effectively. The committee considers that the overriding aim must be to produce an assessment that is as complete as possible, but one not padded with superfluous information. Again, the approach taken by the draft directive is reasonable and does not raise grounds for concern. Article 6, Clause 2, is explicit. It states that details specified in Annexe 3 are required only, and I quote:
to the extent that they are relevant to the stage of the planning procedure and to the specific characteristics of the project and of the environment likely to be affected, and to the extent that the developer can reasonably be expected to obtain them, taking into account existing knowledge and assessment methods".
Thus, in operation, the process will not lead to the collection of extraneous and superfluous data. Articles 7 and 8 provide for consultation between authorities and for public participation. The committee attaches importance to the notification of neighbouring states of possible trans-boundary effects. The committee would like to see the home planning authority less ambiguously charged with the duty of communicating
directly with its opposite number in such cases. The present wording is simply that the authority "shall ensure that the information … is sent". Surely it is a simplification and a clarification to require that the authority "shall send" the information?
§ The committee found it difficult to decide whether in practice the procedures of the draft directive would increase or diminish opportunities for consultation and public participation, but on the whole the committee feels that it would be a step forward. The committee also feels that the relevant provisions are sufficiently flexible and would not require a notable change in present practices in the United Kingdom.
§ I have kept until last the main question that your Lordships might think I should have discussed first of all; that is, the question, to what extent is this directive acceptable in the United Kingdom? On the basis of evidence received, the committee understood that primary legislation would not be needed to implement the directive in its present form. Its various articles would be largely provided for under existing powers of the Town and Country Planning Act 1971 or the European Communities Act 1972. As I hope I have indicated, by my small selection—which is, of course, by no means all-inclusive—there are several minor changes which the committee considered desirable before the directive is in a position to be adopted.
§ Overall, your Lordships' committee supports the objectives of the directive and would welcome its implementation. The directive strikes the right balance in administrative terms; it encourages procedures that seem likely to facilitate and accelerate decision-making processes; it promotes consultation between developers and planning authorities; it specifies the transfer of information between authorities, including those in different states; it could be an important step in reducing negative controls and antipollution regulations; and it ought to achieve its aim in reducing distortions of competition within the Community for reasons of variation in the nature and stringency of development control in different member states.
§ The general acceptability of the draft directive and its broad compatibility with existing United Kingdom planning law owes a great deal to the constructive role played during the protracted drafting stage by the noble Lord, Lord Northfield, and I am glad we shall have the opportunity of hearing him this evening. I also look forward to hearing the noble Baroness, Lady White, the Principal Deputy Chairman of Committees, who took the chair of Sub-Committee G on an occasion when I was unable to do so. I am also looking forward to hearing the noble Lord, Lord Ashby, a past chairman of Sub-Committee G who has taken a long interest in its activities, and to other noble Lords who will be taking part in the debate. I beg to move.
§ Moved, That this House takes note of the Report of the European Communities Committee on environmental assessment of projects (11th Report, H.L. 69)—(The Earl of Cranbrook.)
§ 6.12 p.m.
§ The Principal Deputy Chairman of Committees (Baroness White)
My Lords, as a former chairman of Sub-Committee G, I wish at the outset warmly to thank 1316 the noble Earl, Lord Cranbrook, for the lucid way in which he opened the debate, on a subject which is both complex in itself and which has been worked on, re-worked on and studied for a very considerable time indeed. It is no coincidence perhaps that the first three speakers on the list of noble Lords to take part in the debate have all been in the chair of Sub-Committee G during this prolonged period of gestation which has resulted in our now having as a definitive publication the twenty-first draft of this particular directive.
I warmly echo the appreciation which is undoubtedly due to the noble Lord, Lord Northfield, because frankly the early stages of the discussion led one almost to despair, since one felt that the proposals—though extremely well-meaning and with the objective of which we entirely sympathise—were couched in terms which would have been so rigid and inflexible that it would have been very difficult indeed for us to have adopted them as they were first proposed.
But is it not only in the United Kingdom that concern has been expressed for the wide-ranging provisions of the draft directive. Other organisations, as noble Lords will see from studying the evidence printed in our report, in other countries and at European level have also made their contribution, in particular perhaps the European organisations representing private and public industries in the Community—UNICE and CEEP respectively—and the environmental interests having been represented by the European Environment Bureau. Your committee became more closely involved than we usually are in the consultations prior to the publication of the draft directive for the reasons on which I have touched.
We should also pay our tribute of appreciation to the Commission's staff because they have laboured with intense devotion and dedication, first trying to understand and subsequently trying to meet the problems brought forward by your own committee and by a very large number of interested organisations in the other member states. I know they have endeavoured where necessary to reword or recast various proposals in a way which would make the draft directive more easily acceptable and applicable to established methods of planning administration. We owe a good deal to Mr. Stuffman, the senior official primarily concerned, who worked with complete dedication and the most friendly co-operation with those who brought forward proposals for possible change.
At this point we might also mention that we have heard—I might say, with some dismay—that M. Carpentier, the Director General of the Environment and Consumer Protection Service in the Community, is likely to be transferred to another directorate, that of energy. We in the committee have from time to time had our occasional differences of view with M. Carpentier, but our ideals and objectives for the environment have always been the same as his and we have never for a moment doubted his great ability, flair and dedication. We would wish to record our thanks and warm appreciation of his co-operation, which we are sure will be extended to the new field of responsibility he is about to enter.
To revert to the draft directive itself, it might be helpful to put it in perspective. First, it is concerned directly with projects, not with the wider aspects of 1317 planning. In other words, it is about development control in particular, rather than with land-use in general. Some of our witnesses, in particular Mr. Cusell, chairman of the UNICE Environment Committee, suggested that this was to start at the wrong end and that it was important to establish the land-use of zoning pattern first; if that went wrong, the specific development project could be wrong from the start. This point has since been emphasised to me by some very experienced practitioners in this country. Of course, in a sense they are absolutely right; we have our own hierarchy of structure plans and local plans, many of them more sophisticated than some continental zoning procedures. Nevertheless, the difficulties of reconciling the practices of different member states at this level seem overwhelming and I believe the Commission had no option but to base its work on the narrower issue of specific public and private projects.
Another general point so far as the United Kingdom is concerned is that the draft directive is a natural next step in the incremental progress made in our planning legislation since 1947. We sometimes forget that it is only since the Town and Country Planning Act 1968 that the public has been entitled as of right to examine plans submitted with applications for development consent, an advance which has made all the difference to the work of statutory and voluntary bodies interested in these matters. Certain areas of control are being loosened by the present Government, but the public's "right to know" is now firmly recognised. I know, from my position as president of the Council for the Protection of Rural Wales, that a great deal of our work is done precisely in this field in examining plans put forward for planning consent.
To extend the area of information required for major developments likely to have especially significant environmental effects is a natural progression, already largely observed in this country in practice. There is therefore every reason to welcome this initiative taken at the Community level, provided that certain details can be adjusted. In the view of your committee, as the noble Earl indicated, such outstanding problems are now really very few. Most of the apprehensions stressed by witnesses we believe need not arise at all, given good sense in administration and on the part of the developers concerned.
I was interested to receive, as no doubt other noble Lords have received, the latest comment from the Royal Town Planning Institute, which represents many of the professionals in this field, who go on record that the proposals in the draft directive in its current form offer significant advantages, and thatthe major perceptions of difficulties are fallaciousor,have little force".They are particularly concerned that the directive should be introduced at the same time in all member states without long time-lags, so that the advantages of harmonisation should not be lost by leaving weak control in certain states, which could have the effect of attracting migrant industry. They point out that many environmental impact assessments have been carried out in normal practice in the United Kingdom, even if they have not been called by that term. Incidentally, I think the term does not appear in the 1318 directive itself. They assure us that our experties in this field is in demand overseas and that they themselves are much concerned with ensuring that the appropriate training to enable professional people to exercise this skill should be made fully available. In other words, they indicate that we have every interest in securing the acceptance of the directive by Her Majesty's Government, however reluctant they may appear to be.
It would not be improper to point out that among its members your Lordships' Committee had the benefit of a wide range of direct experience in these matters, in the environmental, industrial and legal fields. We certainly remained concerned about a few remaining problems, to which the noble Earl, Lord Cranbrook, drew attention, and which are set out in the summary of conclusions, but in general we came down firmly in support of the proposed directive.
We recognised that there are still some apprehensions, but we were not convinced, for example, that the problem of dealing with "alternatives" could not be overcome. We had a considerable argument about this point with some of the witnesses who raised the matter before us. I am sure that all of us would be dismayed if we reached a situation where we in this country adopted methods of litigation which have been all too frequent in the United States of America in particular. I see the noble Viscount, Lord Colville of Culross, smiling. Of course his profession would benefit enormously if we went down that path, but I feel that even his professional interests would not allow him to succumb to the suggestion that that would be a desirable path to follow.
There are other difficulties. The proposal which still stands in the draft directive that there should be a reference to the Commission of indidivual cases qualifying for the simplified form of assessment did not seem to us to make practical sense, as I think the noble Earl, Lord Cranbrook, indicated. Then there seemed to be some misunderstanding about subsequent monitoring of consent conditions. Of course if this is a matter of pollution control, health control or safety, there are statutory authorities other than the planning authorities which should be responsible for ensuring that appropriate conditions are observed. If it is a question of changing a planning consent after it has been given—having second thoughts, so to speak—that can raise very considerable difficulties under our own planning legislation. I am not quite sure that that particular matter has been adequately cleared up.
As the noble Earl, Lord Cranbrook, said, we made no firm recommendations about the proposed inclusion of certain limited agricultural or forestry developments. Possiby we should have embarked on this rather contentious field, but it seemed to us to open up a very wide area indeed. As our debates, and the very close votes, on the Wildlife and Countryside Bill indicated, the time might well be approaching when some further consideration of rural developments which can have significant landscape and wildlife effects will be unavoidable. But, equally, the closeness of the voting showed that opinions are still very much divided and that further thought about reasonable ways and means is needed.
On the other hand, I think that it would be unrealistic not to recognise that in other member states of the Community these problems are perhaps becoming 1319 even more acute than they are in the United Kingdom. I have here, for example, a report from Brussels, dated 2nd April of this year, in which it is pointed out that the very considerable assistance about to be provided for farm improvement schemes in the West of Ireland, to the tune of not far short of a quarter of a million units of account, can raise considerable areas of conflict between agricultural and environmental interests. This matter has been a point of discussion between the respective offices in Brussels itself, with the environment service arguing with the Directorate General for Agriculture that irreversible ecological damage might ensure if the proposed methods of "agricultural improvement"—I put that term in quotation marks—took place. The reply apparently from the Directorate General for Agriculture was that,there is an inevitable amount of environmental damage caused by every redevelopment scheme. A new ecological equilibrium will be established after a period".That echoes some of the remarks that we have heard fairly recently in your Lordships' House, which so far as I was concerned carried little conviction.
Finally, I think we should make clear that we could not follow the proposals in particular of some of the local authority associations that a code of conduct was all that was needed and that a draft directive was inappropriate for the problems that we face. We could not assent to the proposition that a code of conduct is a valid substitute for the directive that we are discussing this evening. We are given to national self-congratulation in certain fields, of which our planning system is one. Even if we are as good as we believe we are—and we are surely far short of perfection as any observer can see for himself—there are still the problems in some other member states which might not yet be so advanced as we believe ourselves to be.
I am sure that I was not the only Member of the House to have been deeply distressed by two items which appeared recently in The Times newspaper. I am sure that a number of your Lordships will have seen them for yourselves. They are about the lamentable state of affairs in the newest adherent to the Community, Greece, To anyone brought up to revere the Hellenic contribution to our Western civilisation, it was quite horrifying to read the article on 21st March about the deplorable effects of uncontrolled industrial development and pollution in the neighbourhood of Eleusis, illustrated by a photograph depicting a range of industrial chimneys pouring out toxic or particulate waste on to some of the most precious remains of antiquity. That was followed on 13th April by the moving letter from Sir Steven Runciman on the devestation being caused to Greek landscape and townscape by what he calls, "the free-for-all development mania."
In such circumstances a code of conduct would be impotent. Surely we owe it to our common civilisation, not only in Greece, but in some other threatened areas, to support a Community initiative which we believe would not be unduly onerous for us, but which could appreciably strengthen the hands of those struggling to maintain even minimum standards of development control in areas which must surely be precious to us all and which are visited by ever increasing numbers of our own citizens. We ourselves have been learning the hard way. We should be all the more eager to 1320 share our own experience. We look to our own representatives on the Council of Ministers to take a constructive lead.
§ 6.30 p.m.
§ Lord Ashby
My Lords, it is a great pleasure to begin by expressing gratitude to the noble Earl, Lord Cranbrook, not only for opening this debate but for the enormous amount of patient work which he has put into the preparation of the report which is before the House. It is, I think, the most important single directive to come from the environment and consumer service of the Commission, because it covers far more than just abatement of pollution. I should like to put on record a compliment to that service, under the leadership of M. Carpentier, because there has been an enormous and dramatic improvement in the quality of the directives which have come from his service since he took office.
For a long time your Lordships' committee was unhappy that directives were put in front of the committee and Governments without adequate preparation. This one, as your Lordships have heard, is the 21st version of the draft. For a long time, also, your Lordships' committee was worried that the amount of expertise consulted by the service was not as good as it should have been, or as thorough, but this time there was called a symposium of people who had actually taken part in planning, and this, again, has greatly improved the quality of this directive. As one witness said to the committee, this directive as it stands is now, as he called it,an olive branch in the direction of British pragmatism";and this, I think, is an accurate and fair description of it.
Of course, as the noble Baroness has said, there is nothing new about environment assessments and projects in Britain; it is just that we have not given them the rather pejorative name that they have received in the United States, nor gone to the enormous lengths of detail in which they have been put there. One particular directive which I saw last year, for a transmission line to cross Utah, reached 2,500 pages. That is not what is in mind in the directive which is now before your Lordships.
It has a very long history, going back before 1947, even. In fact, in the year 1602 Queen Elizabeth I issued a request for an environmental assessment. She asked the sheriffs of Hertfordshire and Middlesex to inquire whether a proposed aquaduct:would injure the inhabitants of the two counties, and whether it would diminish the flow of any navigable river".Now a great deal of this has been done. There have been 25 directives of one sort or another in connection with the oil industry in Scotland, and there is even a 170-page manual of guidance issued by the Department of the Environment called Research Report No. 13. So all witnesses agreed, I think, that there is need for environmental assessment; their differences were about the means to be used for getting it. I should like to deal briefly, if I may, with some of the objections, and the reasons why I hope your Lordships and the Government will not be prepared to accept them.
The first objection was one arising out of the fact that we already have environmental assessments. 1321 It was that it is not necessary for us, therefore, to adhere to a directive. As one of the witnesses said—it is Question 248 of the report:I am not convinced that the British people will welcome a directive if it is only to put the affairs of Europe right. Europe must learn from us".The witness may not have intended this, but the impression it certainly gave to me was one of a parochial and complacent attitude, quite inconsistent with the present Government's view about co-operation with Europe and (I think I may say so as a new inhabitant of this perch in your Lordships' House) quite inconsistent with the people who sit on this Bench.
A second objection was that it was said by witnesses that any mandatory environmental assessment would delay decisions. If it does delay some decisions and they are wiser, that is no bad thing. But it is arguable as to whether this is even true. The experience of British Gas was that by taking an immense amount of trouble before putting in planning requests, the time for processing those requests was shortened greatly: indeed, in one particular instance, from an average of two years before they began their new technique to 21 months now.
A third objection was that environmental assessments would increase the costs. Of course they will. So also do all measures to preserve the amenity of the environment. But, again, when one looks at what few data there are about the amount of cost increase one sees that it is not very alarming. The land use consultants—and this is on page 30 of the report to your Lordships' House—estimated the costs of environmental assessments as being between 0.2 and 0.6 per cent. of the total development costs. In a table given by the Department of the Environment about costs of assessments in Scottish work, they range from £7,000 to £24,000. These are not very alarming figures considering the size and permanent impact of the projects concerned. I therefore hope that your Lordships will not attach much weight to objections of that kind, and I hope the Government will not attach any weight at all to them.
Then there were some other difficulties which were mentioned by the noble Earl in his opening speech and which are difficulties which need careful consideration. There is the mandatory list of projects at the end, and the need to refer to the Commission any requests for exemption. These rigidities would in fact make the whole thing very tiresome, and I am wondering whether it is possible to make an informal suggestion which Her Majesty's Government might wish to take into account and which I think would remove this need for rigidity. There would, I think, be a great deal more flexibility if, as is already laid down in Article 5, reports are sent back as to decisions taken and if there could then be a roving inspectorate of people from the member states who would go from one country to another, attend public inquiries, notice the techniques and—and this is the important thing—publish their results, so that there would gradually grow up a body of experience as to how to manage this extremely difficult operation of making environmental assessments which are not only wise but are acceptable to the public in a pluralistic democracy.
I now turn to what I think are really much more difficult and serious problems, and they are the ones 1322 which will have to be tackled if (and I hope it is "when" rather than "if") this directive is accepted by Her Majesty's Government. Several witnesses were apprehensive, and I think rightly so, about how this directive would be fitted into the planning laws. There seem to me to be two problems which will have to be settled, and the first is this. Precisely what is to be the competent authority, and how is it to act? The second question is: At what stage and how are the public to be involved in considerations of this kind?
One assumes—and there is no reason to doubt the assumption—that the competent authority should be the present planning authority, but if environmental assessments are to become an integral part of planning then there will have to be participation by bodies which one can describe as the statutory curators for the environment—the bodies responsible for administering the Public Health Acts and the Clean Air Act; the Alkali Inspectorate if it concerns the works which would be registered under that inspectorate; and, of course, the regional water authorities in England and Wales, the industrial pollution inspectorate in Scotland and the river purification boards there.
At present, as I understand it, planning authorities are not obliged to consult these statutory curators of the environment except in certain very restricted cases. It is not mandatory for them to do so. Circumstances can and do arise when a planning authority would like to give planning permission to some project which the Alkali Inspectorate or the regional water authority would have great apprehensions about. Circumstances also arise and have arisen when a planning authority wants to place more severe restrictions upon the operational project than would be needed by the regional water authorities, on the one hand, or the Alkali Inspectorate on the other. This would lead to difficulty if the developer and the planning authority employ private consultants who turn out to have given advice which cannot be accepted by the statutory curators of the environment who have to approve before the project (even if it has planning permission) can be allowed to proceed. In practice, there is a great deal of informal discussion. It would be an unwise developer who went forward without consultation with the Alkali Inspectorate or the regional water authority, but it sometimes happens. The point that I want to make, because it is relevant to the reaction to this directive, is that there is at present no obligation, no obligatory part in this procedure.
All this informality has worked reasonably well in our typically British pragmatic style, but if the environmental assessment becomes a statutory part of the planning process, these curators of the environment will have to be involved more officially and the risk then would be that they will become loaded with an enormous amount of bureaucratic work which they are unable to accept with their present small staffs. It is for those who have far more expertise than I to work out how this might be overcome; but if I might make an informal suggestion, it would be that in the preparation of an environmental assessment under the planning law that we have at present, the regional water authority should be approached at some stage by the developer and by the competent authority and be asked to give an informal opinion as to the consents it would allow for discharge into the river and as to 1323 the supplies of water that it would be able to provide for a new project. Similarly, if it is a works to be registered under the Alkali Inspectorate, they should be asked beforehand to give, again informally, a presumptive standard for the emissions and that these would be accepted by the Secretary of State if he had to call this in for inquiry as being adequate statements from experts that that amount of exploitation of the environment would not damage it. Therefore, I hope that the Government will spell out the precise ways in which the competent authority together with the statutory curators for the environment will handle these affairs.
Finally, I come to what is politically the most sensitive part of the operation and, in the minds of some of us, one of the most important parts. That is the degree of participation by the public. There are some witnesses who dislike having to put up with participation by the public at all. One piece of evidence on page 50 of the report reads:Article 8"—that is the article requiring information to be given to the public and then that the public be consulted—must not add to existing United Kingdom provisions for public information and participation …".Obviously, developers and planning authorities must be protected from irresponsible litigation, from such charges as that the environmental assessment has not been properly prepared or has omitted things; but it would be folly in the light of the measures that have been taken in other countries—and I think in particular of Sweden, the Netherlands and Canada—to adopt an obscurantist attitude towards involving the public in these decisions about the environment.
I am sure that I am pushing at an open door when I ask the Government to encourage planning authorities to take a constructive attitude towards the involvement of public interest groups, particularly in environmental issues. There is nothing new about this. It is 12 years since the Ministry of Housing and Local Government commissioned an inquiry by Skeffington which was published as People and Planning. One of his main recommendations was:Participation involves doing as well as talking and there will be full participation only when the public are able to take an active part throughout the plan-making process".I believe that the Conservative Party Manifesto for 1959, talking about environmental issues raised over energy developments, said very much the same thing, that:the fullest possible participation in major new decisions will be arrangedThe trouble is that we have not yet got a proper procedure for involving the public in participation and we tend to run into the deplorable incidents that occur over such discussions as were had over Windscale and over some motorways. The difficulty about Article 8 of the Commission's directive is that it is not a good guide because it appears to bring in the public at much too late a stage. I should like to make the plea that we have the opportunity, in considering this directive and how it is acted upon, to have the courage in this country to try out some of the techniques which have been successfully tried out in Canada. To mention one example, there was the inquiry by 1324 Mr. Justice Berger for putting a pipeline down the Mackenzie River. At a very early stage, the Berger Commission consulted the public informally. They held hearings all the way up the Mackenzie River in school halls, Indian villages, hunting camps and outposts. The Canadian Broadcasting Commission published summaries of the hearings in French, English and in six Indian languages. The result of this, the lesson to be learned, the reason why I suggested it was a success, is that it was not so much the wisdom of the decision—that is something that only experts could judge—but that it was a remarkable revival of confidence in Canada in the methods of public inquiries and the way in which experts are used. It has done something to restore confidence in the planning process.
Of course, one has to be hardheaded about this. One of the most compelling things about the Berger Commission was that it did offer money to finance objectors but it put tough conditions on this. The objectors had to have a clearly ascertainable interest, they had to have an established record of concern in the subject and they had to put the case on paper. But the psychological result was very dramatic. I suggest that the disenchantment at present with the whole processes of representative democracy in matters of this kind can be more serious than a delay in the siting of a power station or a reservoir. There will be sceptics who will continue to say that there is nothing much to be gained by appealing to the public. If there are any such sceptics in the House now, I should recommend that they read the report of the chief alkali inspector for 1970. The British Steel Corporation ran into difficulties in one of its plants over the control of oxide fumes. It was not practicable to shut down the process. The Steel Corporation took space in the local newspaper and local broadcasting and explained to the public what the difficulty was and what they were doing about it. What was the response? I quote from the 1970 report:… no complaints at all were submitted and the works manager received shoals of letters thanking him for letting the public know what was happening".This is surely an encouragement to work out methods of taking the public into one's confidence when environmental assessments are made. I hope that we may have an opportunity for a major examination of the parts that will be played by the developer, the local authority, the planning authority, the authorities that are curators for the environment, and the public themselves in these measures for protecting the environment.
§ 6.50 p.m.
§ Lord Nugent of Guildford
My Lords, I feel honoured to follow the noble Lord, Lord Ashby, to whom I always listen with both pleasure and enlightenment. I should like to add my congratulations to my noble friend Lord Cranbrook on this report and his speech in introducing it which I thought was most masterly in its lucidity and analysis. I should also like to congratulate his clerk on the tremendous work that they did in getting the report out.
I have to make an apology for being a very poor attender at Sub-Committee G and my inability to make any contribution to the report, especially as I am going to make a suggestion which is not quite in line with the general burden of the report. I am very interested in 1325 this subject because in all these post-war years I have been a member of my county planning committee first and then, for nearly 20 years, chairman of the regional planning structure in the London and South-East Standing Conference of Planning Authorities and I am very familiar with the planning scene. I agree with the noble Baroness, Lady White, that our system of planning is good. It is rather complicated, but I think that it is a pretty effective one.
I welcome the idea of an environmental impact assessment—no one could do otherwise. As has already been said by other noble Lords, the process is not new to us. For major projects it has been employed for some time. But this draft directive will of course make the process mandatory and that is a very major step from the informal process which we now have. Of course, it would be an additional safeguard for the environment of Europe, and the noble Baroness, with her account of what is happening in Greece, makes one shudder. I very much sympathise with her. I am going to express an anxiety which I feel should be expressed in this debate about the cost and delay which could occur if and when this system is introduced. My withers have been slightly wrung in advance by the noble Lord, Lord Ashby, on this score, because I should like to see it working in practice before believing that it is going to work out at such small figures as he dramatically gave us.
The fact is that in Britain we are short of new development. But we are long on bureaucracy. This Government have succeeded in reducing the apparatus for planning by eliminating one tier, and we must make sure that this directive does not add another new one. I was not surprised to see that some anxiety was expressed in the evidence by the Department of the Environment and the CBI. I share that anxiety. New developments must be helped and not hampered. As has already been mentioned, the draft directive proposes two different classes of projects to be subject to the EIA in Annex I and Annex II. In my judgment, the projects in Annex I are of such magnitude and importance that they would normally be subject to an informal process of assessment of the impact on the environment, if for no other reason than in order to ensure that when they were presented to public opinion at a public inquiry—which would be virtually certain in such cases—they would have a reasonable prospect of being acceptable. I feel that if Annex I is made mandatory, we would not be adding seriously to costs, time, et cetera, and we would be ensuring that our precious environment is adequately safeguarded and, equally important—perhaps more so—that all other member states will conform in the same way.
However, Annex II projects are in my judgment another matter. They are of lesser magnitude and that is why the procedure for them is proposed differently. As has already been mentioned by the noble Baroness and other noble Lords, the agricultural section is a highly contentious field. The experience in this noble House on the Bill on wildlife illustrated that very clearly. There is an area here where we as a nation have to resolve our minds. There is no doubt of course that some agricultural developments injure the environment. Whether it is enough to say that they should not be proceeded with, is something we really have not worked out yet. I must say that 1326 before making any mandatory control in this field I should like to see us as a nation resolve our own minds on this matter and proceed with national legislation rather then bringing it in here by a side wind.
Accordingly, my advice would be that the introduction of this draft directive should be phased, as is tentatively suggested in paragraph 80 of the report. This would give all member states the opportunity, to start with, to introduce the new mandatory process of EIA for the Annex I schedule for the major schemes only. This phased introduction would enable both Government and local government to develop the scheme in the most economical and efficient way to deal with the very important technical points which the noble Lord, Lord Ashby, made in the relationship with these statutory authorities which are responsible for important parts of the environment and in various other ways. In any event, this is for projects which obviously require such treatment. If, after a sufficient trial period, experience proves that EIA can be operated without significant extra costs and time, then the next phase of Annex II, with or without amendment on the agricultural aspects, could be proposed for introduction.
§ Lord Northfield
My Lords, would the noble Lord allow me to interrupt? I wonder whether he is under a misapprehension. The draft directive makes it very clear that the projects listed in Annex II are to be subject to assessment in a discretionary way. It is only whenever their characteristics so require leaving discretion entirely in the hands of the competent authority. Secondly, it even leaves them with the discretion to have a simplified form of assessment after having decided whether to have them at all. There is nothing really mandatory about Annex II.
§ Lord Nugent of Guildford
I thank the noble Lord. My Lords, I have given careful thought to that. I am not under a misapprehension. I have studied it carefully and thought about it. I believe that it would be better not to introduce Annex II even in this qualified form at this stage. I believe it would be better to proceed with Annex I, which in my opinion makes an unanswerable case, and see how experience works out with that. There is quite a bit to learn for the planning authorities, and quite a bit to learn for all who are going to be concerned. If that works out successfully, then I would be in favour of bringing in Annex II projects as well, either with these qualifications or perhaps on a straight mandatory basis. I offer those thoughts which I hope may be helpful to my noble friend.
§ 6.59 p.m.
§ Lord Llewelyn-Davies
My Lords, before I speak on this subject, I should declare my interest. I am a member of the Royal Town Planning Institute. As the head of a planning and consultants firm based in this country, I have been and expect to be in the future involved in environmental assessment. Indeed, as our firm is international, I am involved in work overseas as well as in this country and have even prepared environmental impact assessments in the United States. It is therefore as a professional that I have 1327 studied this report and will be speaking about it tonight.
I should like to start by expressing very warm admiration for the report of the Select Committee. I have read it with close attention and am most impressed by the depth to which the committee has been able to probe and by the logic of their arguments and recommendations. In general, I am in agreement with their conclusions and with the modifications they propose, as so clearly explained to us by the noble Earl, Lord Cranbrook. I hope the recommendation of the committee will be endorsed by your Lordships' House and, in due course, by the Government.
I was not originally very much in favour of the proposed directive. I started, as I believe many thoughtful people would, with the view that British planning procedure in its present form is adequate to deal with environmental issues, and that the last thing we want is to add to a possibly already over-elaborate planning framework. I believe that British planning has reached a point of development when we need to redefine its aims and to simplify the mechanisms by which it operates. Therefore, at first sight, the addition of a new set of requirements seems to be pointing in the wrong direction. But as I studied the evidence, the discussion and the conclusions of the committee my view changed and I now feel able to support the committee's conclusions. I should like to take a short series of points to illustrate why.
The first question must be: Do we wish, wherever possible, without disadvantage to ourselves, to avoid blocking proposals supported by other members of the Community? So long as we are members of the Community, the answer to this must obviously be "yes". Before we decide to reject a proposal we need to feel that there is a substantial disadvantage in accepting it. The fact that it would involve us in some administrative inconvenience or that we do not need it because we are managing perfectly well, thank you, is not necessarily a sufficient reason for rejection.
This leads to the next question: Does the acceptance of the directive raise real difficulties for us? The main difficulties that have been foreseen seem to me to be three. There will be additional costs, there could be worse delay in starting projects and there might be the risk of litigation in the courts, as occurs so frequently in the United States. These risks are carefully discussed and eventually discounted in the committee's conclusions, and have been further dealt with very effectively by the noble Baroness, Lady White, and the noble Lord, Lord Ashby. Nothing so far said tonight in the debate has changed my view, and so I accept that the disadvantages to us in accepting the directive are too insubstantial to warrant its rejection.
But there are more positive reasons for going along with the committee's conclusions, and one of them is related to my own concerns and interests. It arises from the need to review and revise the role of planning in Britain today. British planning is under very heavy attack from many sides. Developers tell us that it blocks their efforts to meet the public's need. Preservationists from the opposite side denounce it for condoning greedy commercial development at the expense of traditional architecture and urban quality. Sociologists claim that it is destructive of family and traditional 1328 social groupings. Hardly anyone has a good word to say for its achievements. I would love to enter into a vigorous defence, for most of this criticism is nonsense; but this is not the occasion. And planning is not blameless: it has brought some of this criticism on itself by a woolly, if well-meaning, set of aims and a belief that by manipulating land-use it can achieve economic and social purposes that are not in fact within its powers.
I believe that land-use and development control are an absolutely vital public need. Five years' recent work in the city of Houston, Texas—a city which glories in having no restraints whatever on the private use of land, and where land is to be used in accordance with the phrase "the highest and best use", which means that which leads to the maximum return to the land-owner irrespective of the externalised costs the community or the blight on neighbouring sites—has fortified this belief by direct experience.
But if we are to be effective in the future we must concentrate our minds on the real role of planning and development control in our society and improve our skills in dealing with those matters which are truly within its powers. Of these, I believe that environmental issues are one of the most important, and they grow in importance every day. The advance of science and technology is making these issues more vital and more difficult to resolve as every day goes by. There are real and serious difficulties in balancing the pros and cons of environmentally significant developments. The nation's need for cheaper energy may conflict, and does conflict more often than not, with environmental quality. I believe these are conflicts which are not suited for resolution in the courts by judges, as they are in the United States, due to the lack of any systematic systems or enforced systems of development control or planning. But I do think that my profession and the practice of planning have not concentrated adequately in Britain on these questions, but have wasted much human effort and public money on preparing the sort of plans which can never be used. I think that a switch in emphasis to environmental concerns is one—it is only one but it is the one which concerns us tonight—of several changes in direction which would actually help to restore British planning to a more useful and needed role, and in due course help it to regain public esteem.
This problem is not entirely new. In the United States I heard that when Moses approached the Red Sea, pursued hotly by Pharaoh and his forces, he appealed, as was his wont, for help to the Diety and after an appropriate pause received the following message:Moses, I have both good news and bad news for you. The good news is that I can dam up the Red Sea and give you a dry-shod passage across. The bad news is that before I can start the project you will of course have to file an environmental impact assessment".My Lords, I believe there are vital and positive reasons for your Lordships' House to support the conclusions of the Select Committee.
§ 7.7 p.m.
§ Lord Craigton
My Lords, I too thank my noble friend Lord Cranbrook for his most excellent introduction and I should like to add my thanks to those 1329 expressed by the noble Baroness, Lady White, and the noble Lord, Lord Ashby, to M. Carpentier. When M. Carpentier had been in office for a very short while I went to see him and suggested that we might form in Europe the equivalent of CoEnCo in this country. He warmly received the suggestion and gave not only moral but physical support. He gave some money, with the result that the EEB was formed and that is one of the organisations which gave evidence to Select Committee G. So I am speaking tonight very strongly on their behalf and also on behalf of the CPRE and other members of CoEnCo who are concerned in this matter.
I, too, of course welcome the report. I am glad to see that the Select Committee has broadly endorsed the proposals of the EEC draft directive. We support the recommendation that major industrial developers should give detailed information on a range of possible environmental consequences should the project go ahead as planned, and that these consequences should include a list of ecological factors and also possible alternative sites.
We support the suggestion that the information necessary for assessment should be available for public comment, which would probably mean a public inquiry; and I do welcome and support the wise words of the noble Lord, Lord Ashby, concerning the tremendous advantages of a correct approach or presentation to the public. The EEB tell me that the procedures set out in the draft directive are needed by most EEC member states. Furthermore, we all feel that the environmental assessment of major industrial projects is particularly important, given the omens described in the World Conservation Strategy, Global 2000 and the Brandt Report.
My noble friend Lord Bellwin knows that I am a great admirer of the DoE, but I must record that, in written and oral evidence to the Select Committee, the EEB contested sharply the DoE's strictures about the draft directive. The DoE objected to the listing of project types being subject to EIA. The DoE said that it would be impossible to define precisely the technical thresholds and criteria with which individual assessments must comply. Thirdly, they said that prescribing EIA procedures in law would invite "nuisance" litigation by objectors wishing to slow down projects. To counter-balance, the EEB proposed ways in which each of these difficulties could be overcome, and I am glad to record that the Select Committee upheld their views on each of these three points.
However, there are three more points about which we are concerned. First, we consider that there should be provision within the draft directive for consultation with the public, in advance of the preparation of an assessment. There is some British precedent for this; for example, Leicestershire County Council's wide consultations on the issues which they ought to have in mind in deciding their attitude to the Vale of Belvoir coalmine project last year.
Secondly, we do not share the Select Committee's confidence that "alternatives" to the project in question will be able to be canvassed effectively under the early stages of the EIA procedure. We feel that the "competent authority" may not be expert enough to detect what relevant information is not being made available. There is no substitute, in the EEB's view, 1330 for vigorous examinations of alternatives at a later public inquiry—realising, of course, the cost—perhaps by third parties using rival expert witnesses and full cross-examination. We think—and I hope I am wrong—that the Select Committee has been over-optimistic in accepting the draft directive's expectations as to what the early stages of the assessment procedure might achieve.
Lastly, various agricultural projects may be included in Annex 2. This is, of course, most welcome as it recognises formally that agricultural developments can be environmentally damaging. However, the implications of this recognition for the United Kingdom are considerable. So I am concerned—and, after the Wildlife and Countryside Bill, with some justification—about the extent and effect of any pressure brought by the MAAF in this matter.
§ 7.13 p.m.
§ Lord Sandford
My Lords, at this stage of the debate, I have only two points that I want to make. I certainly do not want to say anything of a comprehensive nature about the report, except to express my gratitude to our chairman for his conduct of our scrutiny and to say what a pleasure it was to serve under him.
The first point that I want to make is about the process of the scrutiny itself in this case. The noble Lord, Lord Ashby, said—I think rightly—that it is probably the most important proposal to come before Sub-Committee G, and I shall go on to say that think it is probably the most sustained piece of scrutiny that any sub-committee of the Select Committee has undertaken on any proposal from the Commission. Our terms of reference allow us to consider any proposal coming from the Commission, and we stretched the terms of reference in this case to consider the proposal before it had actually emerged into the light of day, and before it was a formal proposal at all. I think that we have been considering this matter for something like four years—about twice the time that is actually recorded formally in the report.
I recall that we first noticed that something was going on back in 1977. I had occasion to be in Washington myself in that year, where I was able to confirm our suspicions that the drafts which we were looking at then were much too close to a crib from the Environmental Protection Agency, and that we were in serious danger of suffering from all the defects which the noble Lord, Lord Llewelyn-Davies, has enumerated before us. By 1979, we were on the tenth draft. We were instrumental in persuading the Commission to hold a symposium in Brussels, based on a later draft. The consultations early in 1980 were on the eighteenth draft and this report is based on the twenty-first. That sounds very laborious and so it has been, I want to add my tribute to the skill and patience of the Environment Service, M. Carpentier and Mr. Stuffman in all these deliberations.
On the other hand, I think that the effect of this sustained servitude has been beneficial and I should like to instance one or two examples of that effect. One of the effects—not, perhaps, the direct causal effect—is that during that process the presidents of the various national planning institutes within the Community decided to confer together, and to form a forum to which the Environment Service can refer 1331 matters on which it wants their professional advice. That is surely a substantial gain. We have been able, by taking note of this proposal at such an early stage, to effect adjustments in the approach of the Environment Service to this problem to a degree which has not been possible in other cases, and to prevent them inflicting on the Community much too heavy and undiluted a dose of Environmental Protection Agency philosophy, which would have been very bad for us if it had occurred.
Then there is the change in professional attitudes and understandings. I do not really need to elaborate on this, because we have had it all from the noble Lord, Lord Llewelyn-Davies, who is himself a professional planner. In addition to what he has described, we have witnessed—though not, alas!, among all our witnesses—a new understanding of the different state of affairs prevailing in the art of planning across the 10 members of the Community. We have witnessed a welcome change in the understanding of the beneficial changes that have been made in succeeding stages of the drafts that have come before us, and more people are now prepared to give credit to the Environment Service for the changes which they have made since picking up these ideas from the United States.
Fourthly, we have seen a growing understanding of the value to the United Kingdom of some equivalence in environmental standards, from the point of view of our ability to compete on fair terms with other industrial plants elsewhere in the Community. All this has required time and it has allowed time for our professional planners to see that there are considerable advantages, from their point of view, in other countries and other members of this Community adopting the standards involved in this directive. In fact, some of my more cynical friends have welcomed the directive for the inducement that it provides to our planners to go and work somewhere else. In short, it has all been a useful lesson in taking our time over this process of scrutiny and getting into the act at an early stage.
I should now like to turn to the only other point on which I want to dwell. It has been raised by a number of noble Lords already; namely, the implications in this directive for agriculture and forestry in the United Kingdom. Noble Lords, and other readers of this report, will see that we received extensive and valuable evidence from a very wide range of industry on this directive. We received very little—in fact, none—from either the agricultural or the forestry industries, and a mere three paragraphs from the Country Landowners' Association bearing on the effects of the directive on the countryside. The CLA's third paragraph ended with the words:We are concerned that an EEC Directive could impose new constraints and could upset present arrangements which are now working well".That was Mr. de Salis in September, 1980.
As the noble Lord, Lord Nugent of Guildford, said, such a view could scarcely be sustained today after the revelations arising from our four months on the Wildlife and Countryside Bill. The brief which some of us have received today from the Country Landowners' Association does not now attempt to make such a bland and broad claim. Mr. Williamson, who is its 1332 author, refers instead to new arrangements now at last established to deal with the very serious problem on Exmoor, which is just one example of the impact of agriculture on a sensitive piece of countryside. I am among those who hope that those arrangements will work successfully.
Mr. Williamson of the Country Landowners' Association goes on to call in aid paragraph 87 of the Countryside Review Committee report, entitled Conservation in the Countryside and dated 1979, in which that committee rejects the imposition of development control on agriculture and forestry in the United Kingdom. I must say that I am against imposing United Kingdom development control on agriculture and forestry in this country, and I am glad that development of that sort is at present exempted by the general development order. But Mr. Williamson, in giving us that quotation in his brief, does not notice, or if he does notice he chooses not to quote, the preceding paragraph 86, in which the view of the Countryside Review Committee is that it is operations such as the intensification of agriculture, the afforestation of hare land and the drainage of wetlands, for which planning permission is not required, which are causing more impact on the landscape and on wildlife than petrochemical plants and mineral extraction, which do require planning permission. The next two pages after that paragraph are concerned with a search for more appropriate ways of assessing and mitigating the impact of processes such as those.
We have moved on since 1979 and, thanks to the initiative of Her Majesty's Government in the Countryside Bill, some progress is now being made in this field. For instance, there is now a general acceptance that we must have a statutory system of advance notification of certain agricultural improvement, afforestation and land-drainage proposals in certain sensitive areas such as SSSIs, national parks and so on. There is widespread support and acceptance from the Government of the principle that their Agricultural Development Advisory Service should have a wider role and embrace considerations to do with the conservation of wildlife and its habitats, with the conservation of the landscape and with public access to it. I personally was glad of just enough support in this House—two votes—for an amendment which would put the application of agricultural grants in certain areas in some circumstances in a context wider than that of mere food production.
So there are three strands of development policy which are favourable in the area that we require. My belief is that if these approaches are carried forward in the United Kingdom wholeheartedly, briskly and with vigour and imagination, as the noble Lord, Lord Nugent of Guildford, was urging they should be, it will prove possible for the United Kingdom Government to demonstrate to the Commission under Article 5 of this directive that in the United Kingdom, agricultural developments, land drainage developments, forestry developments—all the items contained in paragraph 1 of Annex 2—can continue to be given planning permission under the general development order because we shall have devised positive, dynamic and watertight arrangements of our own for complying 1333 with Article 4—the article which calls for proper environmental assessment to be undertaken on such projects.
On the other hand, it is quite clear to me that unless we find effective means of our own for assessing and mitigating, where necessary, the impact of agricultural technology, land drainage, afforestation and intensive livestock production on the landscape and on wildlife and its habitats, particularly in our sensitive areas, then United Kingdom agriculture and forestry will have to come to terms not only with the full rigours of an EEC directive on environmental impact assessment but also with United Kingdom planning legislation and control. I trust that a view of this prospect will serve to concentrate the minds of the Country Landowners' Association and the National Farmers' Union before it is too late.
§ 7.26 p.m.
Viscount Colville of Culross
My Lords, I apologise for not having put down my name on the list. I also have to apologise, as a fairly recently co-opted member of the sub-committee, for the fact that I was able to put in, I am afraid, very few attendances because of various preoccupations at home and overseas. Nevertheless, it is a subject with which I have had some professional concern in the past, and I suppose I ought to declare an interest in that it is possible that I may have a professional concern with it in the future.
There are two points which I should like to draw to your Lordships' attention. First, when I saw the draft directive I was a little worried about the provisions in Article 7, which seem to indicate that the competent authority, which I take to be the local planning authority, would only start to consult the various bodies concerned in environmental matters at a stage after the planning application had been put in. I am bound to say that it seemed to me at first instance that, if that was the moment that they first started the consultation, there was a good deal to be said for the point of view that the directive would lead to massive delays.
However, upon reflection I do not think that this is really going to be a very formidable problem. Having been involved in two major exercises which involved exactly this sort of preparation, I do not believe that any developer with a grain of sense would leave it to the stage of the planning application before he approached all the people that the local planning authority would consider to be relevant for the purposes of Article 7. Consequently, all the necessary consultation would in practice have been done a long time before that stage and, indeed would have formed part of the preparation for the formulation of the planning application itself. Therefore the requirement to consult would be no more onerous in practice than that which applies under the general development order, anyway, for various consultations of a formal nature to take place and for formal representations to be made.
The second point to which I have attempted to apply my mind is the one which the noble Baroness, as it were, directed at me: the question of legal challenge. I do not think that she need worry too much about lawyers wishing to acquire to themselves new avenues of approach to the courts or extra methods of earning 1334 their livelihood. Projects of the size that we are talking about here are quite sufficient to engage the occupation of learned counsel for a perfectly satisfactory period of time without anybody wishing to extend it. On the contrary, I believe that the legal profession may on occasion be actually capable of reducing the time that is taken if it is consulted early enough.
I think that the problem which has been exercising the department of my noble friend Lord Bellwin is the way in which people might make use of Article 6 and Annex 3 of the draft directive so as either to spin out or to have adjournments of a public inquiry, or possibly, in addition, to take the matter up on appeal on the ground that the proper procedures as laid down by some subordinate legislation which we are anticipating have not been followed through. I would only very tentatively suggest this to my noble friend Lord Bellwin. Far be it from me to enter into all the technicalities, but I would make this suggestion: the provisions which one finds in Article 6(2) are such that, whatever seem to be the specific characteristics of the project and the environment likely to be affected, the extent to which the developer can reasonably be expected to get information, taking into account existing knowledge and assessment methods, is something which has to be decided by somebody at some time. I would suggest that there is no necessity to leave this all that long. I would tentatively put it to your Lordships that it would hardly be very harmful if, at some stage in the process leading up to the planning application, the local planning authority were to say, "Yes, in our opinion the ground has now been covered and you have dealt with the matters that are required under Article 6(2) and Annex 3 for the purposes of this application".
Alternatively, if one wanted to postone the thing a little further, if the matter was one that was going to be called in by the Department of the Environment, I suppose it would be possible to reserve powers to the Secretary of State whereby he could say that he was satisfied on the material before him at the time when he wrote the call-in letter that the necessary material had been collected for the purposes of Article 6(2). I think that would put paid to two lines of legal challenge. First, it would not be possible for objectors at the public inquiry to say that the full process of the collection of information and the examination of the issues that was statutorily required as a result of the directive had not been complied with, and therefore the inquiry must be adjourned until it was, because the letter, or the certificate, or whatever it may be, of the local planning authority or of the Secretary of State saying that he was satisfied, would be enough to fulfil the requirements of the directive.
Secondly, I should think it would make it quite impossible for anybody to appeal the matter under the legal appeal provisions of the Town and Country Planning Act, because if that certificate or letter had been issued, then for the purposes of the subordinate instrument that brings this matter into the scope of the planning acts, the procedure would have been fulfilled and that would have been an end of it.
My noble friend Lord Craigton said—he was quite right—that if that was done at that stage it might emerge at a later stage in the course of the inquiry that there was some other environmental issue which needed to 1335 be examined. So be it. That is perfectly possible. There is no reason whatsoever why it should not be examined. If it emerges as being relevant at a later stage the developer will, at his peril, refuse to go into it or to take the necessary steps to satisfy the inspector that the matter has been properly considered and taken into account. But that need not necessarily mean that one has to attack the perfection of the initial analysis undertaken by the planning authority or by the Secretary of State, of what they thought, at the relevant stage, were the necessary matters that had to be considered. So one gets the best of both worlds: one could have, as it were, an unchallengeable system, which I think the subordinate legislation would be able to lay down, but at the same time there would be sufficient flexibility to take into account some issue—no doubt a very important issue—which arose later and required proper examination. It would get that proper examination and no harm would be done. In those circumstances, I cannot see where the scope for major legal challenges leading to delay and to appeals will come.
The only last thing that I would say to my noble friend Lord Bellwin is that if there is any doubt about the final stage, which is the appeal to the High Court about procedures, I think the moment is coming anyway when the department will have to say—probably in legislation—who has the right to take these matters to the High Court. At the moment it is an extremely dubious point and there are various judgments and authorities which are not wholly consistent. The probability is that it is the applicant, the local planning authority and anybody upon whose land the development is going to take place. The latter can be extremely difficult in the case of coal mining, since one may go underneath a number of people's land; but merely to say that objectors are those who can take matters on appeal to the High Court, I think, is stretching the existing law a good deal further than it goes.
If there is a real fear that completely outside objectors, who are allowed by the inspector's discretion to take part in the inquiry, are in fact those who it is feared will take the matter to the High Court on appeal, that is a general matter which applies not only to this directive and to the affairs which this debate is dealing with, but in general terms to all planning matters; it is something that, if it is a fear of the Department of the Environment, ought to be dealt with. In the circumstances, I am very happy to be able to support the conclusions of the committee, and I particularly draw attention to the wise words of paragraph 83, which I have been attempting to expand and spell out.
§ 7.36 p.m.
§ Lord Northfield
My Lords, as in a previous debate on these subjects I begin by declaring an interest as a part-time adviser to the Commission; indeed, I have been so close to the drafting of this particular directive, for so long, that I am not quite sure how equipped I am now to debate it. Noble Lords have said how many drafts it has been through and I am almost at the stage where, in No. 21, I am not sure whether I can still see the wood for the trees. However that may be, I should like to say first of all that I was glad that my noble friend Lady White and other noble Lords have paid a particular tribute to the work of 1336 Monsieur Michel Carpentier, the Director-General.
It is sad that in debating this very important directive tonight we are in fact saying goodbye to him. And it is ironic that having built up the service of the environment, and having been given a personal upgrading to the rank of Director-General, and having now had that crowned in recent days by having the service made into a full Directorate-General for the first time, the Commissioners have chosen this moment to move him to energy. I suppose it happens to all of us in these jobs that at the height of our achievement we are moved on. But I feel we should say that we know how hard he worked in this field, with wide knowledge, with immense dedication, with a great capacity for hard work, with qualities of balance and flexibility that are a delight to see in an international civil servant. It has been a privilege to work with a man who has these immense qualities and is also an Anglophile on a huge scale. I think he appreciates more than any international civil servant I have ever met the United Kingdom pragmatic approach to these problems, and it ought to warm the hearts of your Lordships when I say that he is a fervent reader of every one of your Lordships' debates on these matters concerning draft directives on the environment, and he goes out of his way to pay tribute to the work done by your Lordships' committee.
The issue we are debating tonight will come to a head during the period of the United Kingdom's presidency of the Community, beginning, I think, in the latter part of this year. Therefore I think it is important to find out how the Government now stand. So I want to base my remarks on paragraph 30 of the committee's report in which the committee indicates the questions which were worrying Her Majesty's Government.
The first issue is whether the system proposed in this draft directive would be more effective—this is what the Government said to the committee, I think—than present arrangements in the United Kingdom. Here we are up against the need to understand the basic features of this draft. Indeed the question is almost inappropriate. This is not a statutory procedure being laid down by directive to change in detail our British approach to planning applications. As the committee goes out of its way to say on two or three occasions—I quote from paragraph 1 and others—the directive is no more than an attempt to introduce a common procedural framework. It is not a set of detailed ways in which every planning application has to be handled. The discretions are enormous. The flexibility is apparent in section after section. Indeed, the noble Lord, Lord Ashby, quoted the statement of one of the most important witnesses that the whole draft can be characterised as an olive branch towards British pragmatism.
So it is a wrong question to ask whether it would be more effective than what we do now, because in fact the procedure in the United Kingdom will be hardly altered at all by the draft directive. After all, one might think—and this is perhaps the difference between draft 21 and all the others that went before it—that the draft directive itself had been built on United Kingdom experience. The developer has to give as much detail as possible about the environmental effects in his initial application. I agree with the noble 1337 Viscount, Lord Colville, that there is no reason at all why that should exclude his consultation with people affected in making that initial assessment. On receiving it the competent authority has to give the application proper publicity and go in for proper consultation. There has to be a decision by the competent authority in the light of the consultation. And after all this is over and the decision is announced there have to be subsequent checks on the effects on the environment of the project, to see whether public authorities need to do more to protect the environment from its effects.
So nowhere in this document are the words "environment impact assessment" ever used. The whole approach is to indicate that the effect is to encourage a pragmatic approach to checking on the effects on the environment by a logical, flexible, largely discretionary system of planning control that fully accords with what we have in the United Kingdom. The Commission has run away as hard as it can from those early drafts which indicated perhaps that we were going too near in this draft to something modelled on the United States' experience. British terms abound, even "planning permission" which had perhaps hardly been known in some member states. This is another olive branch towards us. British pragmatism shines out in words like" discretion "to" competent authority". It all has a familiar ring about it, and I cannot understand why anyone should at this stage think that one needs to pretend that this involves great alterations in our system.
The noble Lord, Lord Llewelyn-Davies, who is so distinguished in this field, made the key remark when he said that when a system like this is needed and wanted by other member states, if it involves pretty little disturbance for us why in heaven's name should we object to it? I believe that is the key question to ask.
Secondly, I think it is quite impossible to have a recommendation as opposed to a directive. This would be evaded in some countries and would not get the results that the directive requires. Indeed I quote, if I may, from paragraph 81, to sum up what I have to say on this first issue. The committee say:… the committee believe that the present draft directive strikes the right kind of balance: it provides a framework of common administrative practices which will allow member states with effective planning controls to continue with their system, possibly with some modifications of detail, while containing enough detail to ensure that the intention of the draft cannot be evaded".Of course, that is the whole purpose of the flexibility and pragmatism that we have managed to get into the draft at this stage.
In those circumstances, I think the alterations to United Kingdom law will be minimal, if needed at all, and mainly will be needed in terms of secondary and not primary legislation, and probably mainly by regulations. Our system is fully compatible with this framework. I wonder whether, when one reads the work and the views of some of the witnesses who came before the committee, they were in fact still talking about the earlier drafts. In some cases that is perfectly evidently the case; they had not adapted their thinking and their reaction to the early drafts, which had not been so flexible and pragmatic, and there are contradictions in some of their remarks.
Despite that overall approval of the principle of the draft directive, I realise there can be detailed objections to parts of the approach. Article 4 is 1338 the main difficulty, I know, where the system of exemption for small projects is set out. The committee, I hope, has made the right suggestion, that it would be quite intolerable to go to the Commission on every case and say, "This one is so small. Can we let it off?" That would provide interminable delay and bureaucracy. Much better, as the committee have suggested, that the circumstances for exemption should be embodied in legislation and then reported to the Commission, so that the Commission can simply be satisfied that a proper system of exemption exists and that projects are not being exempted in some backward countries, if I may use that phrase without offence, by administrative discretion which borders on the improper. So, surely, the fact that we are on Draft 21 shows that all details of this kind are highly negotiable. I hope the Government are not going to start saying that because details of this kind are still unacceptable they are going to oppose the whole principle.
Secondly, there is the objection about major land uses being in Annex 2. I must repeat what I said to the noble Lord, Lord Nugent, namely, that this is discretionary, and even then the competent authority can indicate that only a simplified form of assessment is needed for such projects. So I think we have hardly anything to fear in Annex 2, given that we would in our planning system call many of the projects in for consultation, public inquiry and so on, before giving final planning permission.
I come now to the Government's second question, and I wrap it up with the third one, in paragraph 30 of the report. They ask: Will this system run the risk of increasing delays and costs of planning applications, and have other economic disadvantages? First, we must recognise that this has a very restricted application. These are major projects, as the noble Viscount said, and most of them anyway—field day for lawyers as they do provide—would be subject to the kind of procedure in the draft directive. There are 35 kinds of projects in Annex 1. I draw the attention of the noble Lord, Lord Bellwin, to the fact that one eminent witness estimated that the number of planning applications which would actually be involved as a result of Annex 1 was only in double figures, certainly not in three figures. My goodness! that shows how restricted in effect the system will be in catching large projects.
Let us now look at the question whether any evidence of extra delay would be caused by this system. Paragraphs 34 and 35 of the committee's report set out some of the evidence this way and that way. But in paragraph 53 the committee reaches a firm conclusion when it says:… a structured process … would speed up and rationalize, rather than delay, the decision-making process".That after carefully hearing all kinds of witnesses.
Secondly, if there is delay, it might be at the consultation stage, but I go along with the noble Lord, Lord Ashby, in saying that we still have to improve our own system of consultation in this country, and I do not think that it is necessarily the case that a little extra time spent on some of the consultation would be a bad thing. Indeed, as witnesses suggested, it will save later delays when people begin challenging because 1339 there has been inadequate first consultation. I quote from Question 95 where it was said that:In terms of time British Gas feel they have saved several months on each planning applicationby going through the kind of process that is set out in this draft directive. That is a very good example. After all, the authorities have great discretion as regards the details of the way in which this consultation is to be carried out. So there are no overall rules that should lead to enormous disadvantages.
Secondly, could there be litigation? The noble Viscount, Lord Colville, has said a good deal about that. I should like to add just one point; that if anyone reads this directive, he will see that throughout it gives discretion wherever possible that can be laid down to the competent authority, so that no one can then challenge it in the courts. I give one example where, in tact, there was a slip up; the draft still says that the planning application shall be sent to relevant competent authorities for comment. I could well foresee a case in which people go to court to say that, this and that relevant authority was not consulted. Therefore, one of the minor amendments that is still needed to the draft is to say that those who shall be asked to comment shall be the ones who the competent authority believes to be relevant. I see the noble Viscount nodding his head. But there are other ways in which this can be tightened up to prevent unnecessary litigation. So far as possible, steps have been taken to prevent it.
I want to make two final points. Will there be extra costs? This is the other part of the Government's second question. The noble Lord, Lord Ashby, or perhaps it was another noble Lord, quoted the figure given by eminent consultants that in their experience it it between 0.2 per cent. and 0.6 per cent. of normal costs of a big development project. Here again I quote the Gas Board. Although they feared the detailed drafting of this directive, and I think were mistaken in thinking about earlier drafts, nevertheless it is revealed in part of this report that the Gas Board say that they have saved £30 million over 10 years, partly as a result of quicker authorisation of planning applications, after following the kind of open procedures set out in this document. Therefore, there is a good deal of evidence of' saving of time and of costs in carrying out the draft directive's intentions.
Finally, there is a cost advantage to the United Kingdom in having this legislation. It is the case that our planning legislation is better than that of some other members of the Community, and so in some countries our competitors do not have to go through so many costs and so many hoops in order to get planning permission. This is a direct cost disadvantage for some United Kingdom industries. So, as the report says, this draft directive would help to reduce distortions of competition in Europe that are working to the disadvantage of the United Kingdom at the moment.
I come to my final remarks. I hope, from the way in which this directive has proceeded from draft to draft with immense flexibility, gaining momentum of pragmatism inside its boundaries, that we have reached the stage where we can ask the Government to move from their opposition in principle that was voiced to 1340 the committee in its early stages. We have reached the point—and I say this openly to the noble Lord, Lord Bellwin—where surely this is the sort of framework directive for which they are always asking. Time and again from that Box, Ministers have asked the Community to stop making detailed legislation, but to give us a framework within which we can work. After all, this is a framework of common procedure which is fully compatible with the British system.
Therefore, I hope that, as in every sense the committee has supported the Commission in finding their case proved, and has shown that it is moving flexibly forward in matters like this, the Government will say that, given the resolution of detailed difficulties that still remain—and they are only details—in principle they will no longer oppose this draft directive.
§ 7.56 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)
My Lords, I should like to begin by thanking my noble friend Lord Cranbrook for initiating this debate and straight away, as others have done, to say that we are indeed grateful to the Select Committee for producing this report, and for the opportunity that it gives your Lordships' House to discuss this very important subject.
Before I go any further, I should like to add the Government's own endorsement of the point which was made initially by the noble Baroness, Lady White, but which was touched upon by just about all other speakers, regarding the appreciation to M. Carpentier, who, we acknowledge, and we should like to put on record, brought an enthusiasm and personal dedication to the Community's environment policies which I submit is recognised throughout the Community. Of course, we wish him well in his new post in the Energy Directorate. On a personal note, I entirely took the point made by the noble Lord, Lord Northfield, that that is exactly the time when someone is moved on—just when he is at his very peak.
This subject is important because the subject of environmental assessment has attracted worldwide attention and interest over the last decade. It has been discussed and studied by practically every international organisation one could care to name. A number of countries have adopted systems of environmental assessment, not least one which some may call the birthplace of the idea, the United States.
It is also important because the draft directive, the subject of the report, is a significant element in the European Community's environment programme. This marks the first step in the Community as a whole in the direction of trying to prevent environmental damage rather than to cure or alleviate it. It is an ambitious step and one with important consequences for the future direction of environment policies in the Community. I am sure that everyone who has spoken and everyone in your Lordships' House will agree that we must be sure that it is sound.
We must, therefore, approach this proposed directive with caution and examine its implications carefully. I congratulate the Select Committee on the amount of work that it has put into examining the proposal. Anyone who has listened at all this evening could not fail to have been impressed by the great knowledge and 1341 one would say dedication of all those who have been involved with this. I unhesitatingly express my admiration for what they have done.
The committee has followed the proposal closely for several years through its unusually long gestation. The committee has collected evidence from a wide range of sources. It has analysed it in the painstaking manner which has deservedly earned the reports of the Sub-committee on Environmental Matters the high standing which it holds in this country and in the Community.
However, I regret that I cannot share all the committee's conclusions; not because the committee has, for the first time, disagreed with the Government's views on this draft directive. There has to be a first time for everything, and it is the committee's duty to tell the House when it considers that the Government have something wrong. I think it is fair to say, however, that the committee has disagreed with the preponderance of evidence presented to it and in particular the views put by industry, both public and private, by the professional institutes, and by the local authority associations. I find it highly significant that the three associations representing the local planning authorities, who would be involved in implementing the directive, should be unanimous in their doubts about it. The weight of this evidence must give us cause for thought, and at all events makes me less abashed than I might otherwise be in dissenting from the committee's conclusions.
There are three basic question which we must address: First, do we need assessments of the potential environmental effects of major development projects? Second, do we need specific legislation in this country to require such assessments to be carried out? Third, is this a suitable object for Community legislation? Let me make the Government's position clear. Our answer to the first of my questions is a wholehearted "yes". It is implicit in our whole system of planning control over development that the environmental implications should be taken into account in deciding whether to authorise projects. I was pleased to see the unanimity of all who gave evidence to the committee on this point, particularly industry. I think everyone is agreed in particular that in the case of major developments the potential effects in terms of environmental pollution must be fully evaluated, along with the technical, economic, social and employment considerations. In fairness to the Commission's proposals I think there is merit in the idea of a framework within which these effects can be considered together early in the life of a project.
The pollution of our rivers and of the air, the deposit of wastes, the disturbance and destruction of habitat, are all issues that rightly concern people and deserve to be given due weight in development decisions. Any approach that better enables these factors to be considered in a systematic way is to be welcomed. It strengthens the planning system in the eyes of those whom it aims to serve—the developer who wishes to see the benefits of his project realised quickly; the local community who may be anxious to safeguard their local environment; the wider public who expect to see national interests given due weight. And it helps to highlight environmental opportunities, as well as problems.
1342 But environmental assessment is not some new miraculous diagnostic instrument. It is an approach which is inherent in all decision-making on environmental matters and is indeed inseparable from the process. In one way or another we have been doing it ever since the Town and Country Planning Act 1947. As to special exercises and studies, over 25 major assessments have been carried out in Scotland alone, in particular in relation to offshore developments. Within England, major assessments were commissioned by the National Coal Board for the proposed Belvoir and Park coalfields, by the North West Water Authority for reservoir proposals, and by British Nuclear Fuels Limited for proposals to extract water from Wastwater. This is quite apart from the studies forming the basis of public consultations and inquiries in connection with motorway proposals.
My noble friend Lord Cranbrook referred to the question as to whether the directive would require amendment of main legislation. I say to him, yes, it would, though possibly through regulations under the European Communities Act. The fact is that the directive would impose on developers obligations not enactable solely by regulations under the planning Acts. So we accept the general need for environmental assessment and the need for special exercises in major cases. Properly conducted assessments can lead to quicker decisions, but equally a rigid mandatory system can add further bureaucratic hurdles, and can lead to delaying objections and to litigation.
I now turn to the question of whether it would be right to legislate for it, and it is instructive at this point to consider the particular provisions in the draft directive. First, we have the broad provisions of Articles 1 to 3 which lay down the general need for assessment of projects with significant environmental implications and the general factors to be taken into account. Then we have Article 4 which prescribes an assessment for all projects covered by Annex 1 unless, with the agreement of the Commission, the competent authority have exempted it. Then we have a requirement that projects of the kind listed in Annex 2 should also be the subject of an assessment if they are caught by certain thresholds and criteria to be established by member states themselves.
Going on from that, we have Article 5 which provides for joint Community review of these criteria and thresholds, and Article 6 which with Annex 3 prescribes the main items to be covered in assessment. In the remaining articles we have provisions covering consultation and public participation on the results of studies, a requirement for the competent authority to give its own statement of conclusions when reaching a decision, and a duty to monitor compliance with the terms of any consent given and even to consider the imposition of fresh requirements.
I do not want to comment in detail on all the individual elements in the draft. I will concentrate only on key features. Article 4 of the draft directive, as the noble Lord, Lord Northfield, so fairly said, introduces quite a considerable bureaucratic hurdle, as indeed the committee have pointed out. This article requires that the prior agreement of the European Commission has to be sought before any individual project can be exempted from the assessment procedure. This means that every time a planning application is made for a 1343 small insignificant project of a class listed in Annex 1 of the directive we would have to apply to Brussels and say, "This is only a small one. Would you please exempt it? "The committee suggest that this problem could be overcome by member states agreeing beforehand with the Commission criteria for exempting small projects. That would certainly help, but it would get us into the vexed problem of defining criteria for particular types of cases. It leads us also into the wider problem of deciding in advance what projects should require an assessment.
In our view it is impossible to draw up a comprehensive logical list of projects which would always require an assessment, as Annex 1 of the draft directive purports to do. The noble Lord, Lord Northfield, suggested that the number of Annex 1 proposals would be in less than double figures each year. With great respect, I wonder whether this can be true, in that the exact number must surely depend on the thresholds of the criteria that are fixed. At the moment this is unknown, and I should have thought that this was an essential difficulty of the proposal.
No doubt we can all think up a short list of projects that might be generally considered to pose complex environmental projects. But one very soon starts having to make qualifications, and runs into the problems of thresholds and criteria. One has only to cast one's eye down Annex 1 to see the difficulties. For example, is all extraction of solid fuels to be covered, or only major projects? Is all metal manufacture, or only the more substantial cases? And how are airports and harbours to be defined, bearing in mind that these are also in Annex 2? One has to start making arbitrary and artificial decisions about what would make a project significant. Its size? Its cost? Its output? And then try to place a figure on it. I am pleased that the committee recognise the problems in this concept of thresholds. And of course, once it is accepted that a project needs an assessment, one is face to face with the problem of identifying all the statutory aspects for study. Although one is required only to consider particular aspects in so far as they are relevant, there is inevitably scope for dispute and litigation on what may or may not be relevant.
There are other aspects of the draft which concern us. First, it is a long established principle of town and country planning law that, subject to certain exemptions, agriculture and forestry should be exempt from statutory planning control. By the same token we would think it wrong to legislate for environmental assessment of changes in agriculture and forestry which are at present outside statutory control. We believe—as reflected in current arrangements for consultation on forestry proposals and in the current Wildlife and Countryside Bill—that in so far as it is desirable to assess the environmental implications of such changes, this is best done by voluntary arrangements.
Second, there is a risk that the provisions for consultation and participation will extend what is already a prolonged planning process in major cases. In some cases it may be right to have a study completed, published and circulated before a public inquiry. In others, it may be sensible for the inquiry itself to be seen as part of the process of appraisal.
1344 Thirdly, there is a risk that the requirement for the competent authority to make its own statement of environmental implications could turn into another source of delay. Fourthly, we see problems in any requirement that, having given permission for development, one should subsequently consider tightening up the conditions subject to which it was originally granted.
§ Lord Northfield
My Lords, the noble Lord has said this twice. Yet it is not said at all in the directive. What the directive says, in Article 11, is that the competent authority should check that the conditions are being complied with and whether they are still adequate; whether other provisions to protect the environment are being obeyed; and whether the competent authority needs to take further measures to protect the environment from the effects of the project. There is nothing there to say that the article is leading to additional burdens being put on the developer at that stage.
§ Lord Bellwin
My Lords, I can only say that our interpretation of what is certainly a far from easy directive is as I have said, but perhaps I can return to that point at the end of my remarks because I should like first to reply to some of the other comments which have been made.
It may be said—and I would agree—that at least some of these matters can be put right by amending the draft proposals and that they are not a necessary part of any package. The draft directive is of course currently being considered by the Council's environment working group and I trust that your Lordships will recognise that I cannot at present comment on those discussions; they will be brought before the Council of Ministers at some later stage and I cannot anticipate that report. I may say that, so far, those discussions have not assuaged our doubts about the proposals. There remain aspects of the draft which involve basic difficulties—and I refer in particular to the problem of defining the classes of case for assessment and of defining the items to be covered by assessment. The essence of the matter is that what is desirable by way of assessment varies essentially from case to case across the whole spectrum—from projects such as nuclear power stations or motorways at one end, to manufacturing extensions at the other. It may be said that the directive could be amended to give member states discretion over which projects require assessment and the scope of that assessment. That would, of course, produce an entirely different document from that which is under consideration. I do not know whether that approach would be acceptable to other member states, but I do know that it is that one the Government would consider very carefully.
My Lords, there is no neat way of dividing sheep from goats and of saying that some types of project require a prescribed form of assessment and others do not. Nor is there any neat way of defining those factors which may call for evaluation in any particular place. So much depends on the circumstances and so much depends on the scale of what is proposed. It may be suggested that we should not object to the directive listing activities when we have lists in our own general development order and use classes order—but 1345 these are very different types of list and your Lordships will recall the controversy over the GDO in deciding which projects were insignificant enough to be permitted. How much more difficult it will be to decide which projects will be environmentally significant in all the circumstances. We believe that in controversial cases, as things are, all the incentive is on the developer to demonstrate the environmental acceptability of his project. We doubt whether it is necessary to reinforce this motivation with further legal requirements.
I now turn to the third issue, which is that of the Community dimension. Is this a suitable subject for Community action? There are two arguments here. The first is that prevention is better than cure; that a Community instrument in this field will provide better protection for the environment of Europe than a host of negative controls and anti-pollution policies. The second is that harmonisation of procedures is required; that different procedures for authorisation of development can impose barriers to trade. As it is based on Article 100 of the Treaty of Rome, the legal justification of the draft directive derives from this second argument. However, one may doubt whether the directive is really required to remove barriers to trade. The directive proposes only to establish a common set of procedures. It does not—indeed it would not be possible—establish a common set of decisions. Furthermore, it establishes only a minimum set of procedures. There would be nothing to prevent any member state adopting more rigorous procedures, and I do not believe we should wish to prevent it from doing so if it wished. However, the Select Committee bases its support for the draft directive on the first argument—that it will protect the environment of Europe. Reading between the lines of the committee's report I think I detect some criticism of the Government for taking a parochial and self-satisfied approach in opposing this directive. If I understand the report's conclusions correctly, they argue that the directive will have little effect on the UK because we already have a good planning system, but it will be valuable in raising standards in those member states which do not share our good fortune; that in opposing the directive the UK is behaving like a dog in a manger.
I do not believe I need to repeat our wholehearted support for a positive and realistic community environmental policy. I hope that the Government's views were made clear in the course of the excellent debate in this House in March, but the key word here is "realistic" or "acceptable". We do not believe that this particular proposal is realistic or acceptable. Nor do we believe that the detailed changes suggested by the committee would remove the main difficulty: that is the difference between the Government—not to mention industry and the local authority associations—and the committee. The committee see the problems as being ones of detail, whereas we see the difficulties as being more basic. I am not saying that the amendments suggested by the committee are wrong. They are sensible and indeed they are helpful, but they do not overcome our central concern.
I said at the beginning of my speech that this proposal was a major and important departure in the Community's environment policy. It is important that we should get it right. The Government do not believe that the present draft directive yet gets it right. As 1346 first step in the new field we consider it to be over-ambitious and likely to fail in its intention. If it does fail, it could bring the environmental programme into disrepute and seriously harm future progress. We have only to look at the problems encountered in the United States when that country first introduced environmental impact assessment to see the pitfalls which exist. The Americans have, I believe, substantially revised and improved their procedures, but the early teething troubles seriously soured attitudes towards environmental assessment and cast a cloud over environmental policies.
In fairness to the European Commission they have made great efforts to avoid the pitfalls experienced in the United States. Nevertheless, for the reasons I have given, their proposal also has its problems. It has become a constant concern of my right honourable friend the Secretary of State for the Environment to speed up the planning system and remove gratuitous sources of delay. In our present economic condition we cannot lightly add to the burdens on industry by introducing new requirements. I say this despite the very persuasive arguments which the noble Lord, Lord Northfield, so ably put when he suggested that this would not happen. We want to avoid legislation which could be difficult to enact, hard to implement and—by virtue of its uncertainties—be a source of litigation and dispute. I am grateful to my noble friend Lord Nugent of Guildford, who seemed to share my concern about this aspect of the matter, at least.
Before I sit down, I wish to say this. Of course we will listen and consider very carefully all that has been said today. The debate has been on the highest possible level—not least those observations made by the noble Viscount, Lord Colville of Culross, whose great knowledge and experience on planning procedures must always command the closest attention. I assure him, as I assure the noble Earl, Lord Cranbrook, and the noble Lord, Lord Ashby, and the noble Lord, Lord Northfield, and everyone else who has spoken, that we do not lightly brush off this matter and that what I have said is not simply a negative to what has been proposed. It is not that at all. We consider this matter to be far too serious and important to deal with in a light way. I hope those remarks will be some consolation—if I can put it that way and with great respect—to the noble Lords who have argued the case in a way that can only command the respect of all who have listened to them. I have given the Government's point of view. I have spoken of our concern, and I have explained the reasons why we believe it is right to regard the Community directive as now proposed to be unacceptable.
§ 8.20 p.m.
The Earl of Cranbrook
My Lords, I think we would all agree that the debate has been one of quality and extreme interest to all participants. I must draw the attention of the House to a small correction that is necessary to the report. It has been brought to my attention that we have not correctly reproduced the draft directive. On page XXIX in Article 3(1) we have omitted consideration of the vegetable kingdom; in other words, the word "flora" has not been copied from the draft directive. In fact, the directive requires attention to be paid to plants as well as animals.
1347 I was very interested indeed to hear the speech of my noble friend Lord Bellwin, and particularly to note that the areas of detail that concerned him were those which in every case, or in almost every case, had already been identified by the committee. That gives me the feeling that we are all working together and that our minds are running on very much the same lines. When my noble friend was discussing his second main point—is this the right topic for legislation?—I do not find any problems in the directive that have not already been discussed either in the report or by speakers in the course of this debate.
It was my role as chairman to present the views of my committee, but before closing I wish to make a small personal point. I am concerned that in this country today there is under the surface a sense of antagonism between what is seen as authority and what is seen as public rights and public processes. I feel that this antagonism is dangerously near the surface on many occasions. It expresses itself in the dissatisfaction of those who lose—the minorities who maybe feel they have not had the fullest opportunity to express their case. I felt that the opportunities for public participation, consultation and so on that were developed in the European Community's document, possibly illustrated a line that could profitably be followed in our inquiries into major development projects. I should like to feel that point could be followed up. Finally, I wish most warmly to thank all those who have participated in the debate.
§ On Question, Motion agreed to.