Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence


Supplementary memorandum by Associated British Ports (P 19A)

POSSIBLE IMPROVEMENTS TO THE CONSENTS PROCESS

1.  SUMMARY

  This paper seeks to address the problems related to the complexity of the consents process in the coastal zone, a problem which has been identified by industry, NGOs, objectors and many of the Government Departments responsible for granting such consents.

  The paper illustrates the number of consents required. It suggests that there are sound reasons for first seeking to identify the need for a project to proceed as a means of defining the task to be addressed by the consenting bodies and their advisors.

  A three stage attack on the consents process is proposed and a list of certain specific problems that would also justify attention is given.

2.  INTRODUCTION

  The ABP paper to the Select Committee identified the complexity of the consents process as a major impediment to timely port development. The ports industry recognises that a process of consents is required to protect the public interest, but the gradual addition to environmental planning and safety law has led to a number of parallel regimes which sometimes overlap and occasionally conflict. To illustrate the problem, the table below shows a list of many of the consents that could be required for a coastal zone project. Some are alternatives, and few (if any) projects would require most of these consents or powers. The list is probably not complete.

Consent Required Consenting Authority
Harbour Revision OrderDETR Ports Division
Harbour Empowerment OrderDETR Ports Division
Coast Protection Act ConsentDETR Ports Division
FEPA construction licenceMAFF
FEPA disposal licenceMAFF
FEPA beneficial use licenceMAFF
Outline Planning PermissionPlanning Authority
Planning Permission for change of usePlanning Autority
Planning PermissionPlanning Authority
Listed Building ConsentPlanning Authority
Consent for potentially damaging operations within SSSIs English nature
Land Drainage consentEnvironment Agency
Discharge ConsentEnvironment Agency
Consent for disposal of liquid wasteEnvironment Agency
Abstraction licenceEnvironment Agency
Waste Management licenceEnvironment Agency
IPPC ConsentEnvironment Agency
LAAPC licenceEnvironmental Health
Trade effluent licence to discharge to public sewer Sewerage Undertaker
Landowners consentLandowner/Leaseholder
Consent from Crown EstateCrown Estates
Consent from Acting ConservatorActing Conservator
Consent from Harbour MasterHarbour Master
Others
Consent for import of genetically modified organisms Government
Consent for storage of pesticidesGovernment
Section 36 consent under Electricity Act DTI
PipelinesDTI
Fisheries consents (e.g. Shellfish Directive effects) Environment Agency


  Over recent years, as a result of transposition of the EIA Directive (85/337/EEC) (as amended by 97/11/EC) into UK law, a formal requirement for environmental impact assessment has been introduced as part of the process of obtaining many of the consents identified above. The assessment requires the consideration of the need for the development and possible alternative schemes as well as detailed information on the likely environmental impacts of the proposed scheme. Usually, an Environmental Statement is submitted alongside the consent application. A number of Government Departments and Agencies may be formal consultees on the assessment.

  The Habitats Directive (92/43/EEC), incorporated into UK law through the Habitats Regulations (1994), has introduced a further requirement for developments in the vicinity of European Sites, through the process known as appropriate assessment. Where a Competent Authority determines that there will be an adverse effect on the integrity of a European Site as a result of the development, there is a requirement to consider possible alternatives and whether the development is of over-riding public interest. As with environmental impact assessment, many different Government Departments and Agencies may be involved in appropriate assessment for a particular project, particularly where multiple consents are required.

  In dealing with the issue there are two main thrusts that need to be developed, namely:

    —  the establishment of need; and

    —  consent process simplification.

3.  THE NEEDS CASE

  There is a growing body of opinion which recognises that the present process by which both need and environmental impact are considered at the same time is potentially inefficient. This is because those bodies responsible for environmental protection are being asked simultaneously to consider whether or not a project should go ahead, and at the same time consider the environmental impacts. If the needs case is unresolved, then this acts as a disincentive for environmental bodies to work in partnership with the developer to find the best environmental solution. As things stand at present, an environmental body (either a Government Agency or NGO) risks being accused of facilitating a development which it would instinctively prefer not to proceed if it engages with the developer in finding the best environmental solution. Without such engagement, confrontation is inevitable.

  If the needs case was considered and established first, then the question posed to environmental bodies and those granting consents related to environmental matters is much clearer in that it becomes "it has been decided that this project is desirable, and you are charged with finding the most environmentally friendly way of proceeding". This is a clear brief.

  There are, however, some downsides to this approach, namely:

    —  the process could lead to two public inquiries related to the same project, the first to consider need, the second to consider the detailed implementation. It is therefore likely that this option should be reserved for large infrastructure projects. Bearing in mind that in most cases it is the developer that bears the cost of the inquiry, it would also be reasonable for this decision to be at the developer's option (after appropriate consultation with the Competent Authorities involved in a public inquiry);

    —  it is argued by some, including some environmental bodies, that need is relative and ought to be judged against the scale of potential environmental impact. Separate consideration of the need for a project would allow all consenting bodies to draw attention to the various consents that are needed, and the considerations that would have to be examined if the project proceeded to a detailed stage. This would achieve two important new clarifications, both missing or weak at present:

      —  a complete list of all the consents needed. It is surprising how often another consent hurdle is erected late in a project development, even where the agency involved has been a consultee throughout the project development phase; and

      —  a very clear steer to the developer and the inspector who may carry out the detailed public inquiry as to the scope of issues that need to be covered in the environment statement.

  Such establishment of a separate needs case would allow public consideration of major infrastructure developments at an early stage, and probably before the developer has committed the considerable research and development expenditures required to prepare a full environmental statement required for the final public inquiry. Design of the facility would only be at an outline level and comments made during the initial inquiry into need and alternatives would clearly influence the scope of the detail design work that would need to be done.

4.  SIMPLIFICATION OF CONSENTS STRUCTURE

  Consent simplification can be attempted at three distinct levels:

4.1  Improved efficiency of present consents mechanisms

    —  All regulatory processes were created for a purpose, though many have had to be adapted to circumstances unforeseen when they were introduced. This has led to apparent complexity, overlap and fragmentation, with the result that few consenting bodies are able to see the project in overview (in the way that an inspector does at a public inquiry) and evaluate the necessary tradeoffs required to achieve sustainable development: every consenting department seeks perfect compliance with both the spirit and the letter of its component of the regulations. Without an overview, judgement is difficult to exercise, even where regulations permit judgement.

    —  The recent formation of a joint office to deal with the Coast Protection Act and Food and Environment Protection Act consents mainly relating to the disposal of materials at sea, and construction in, or near, navigational areas is a significant step forward. It has involved no change in responsibilities or regulations. DETR Ports Division are committed in the White Paper to seeking further ways in which the many consents required in the coastal zone can be improved by a Code of Practice which would have the following key attributes:

    —  there would be an obligation, voluntarily entered into, by all Government Departments to respond in a timely manner to consent applications;

    —  arrangements would be made for the common consideration of related issues. This is particularly important in relation to the advice given by the conservation agencies (English Nature, Countryside Council for Wales and Scottish Natural Heritage) and the Environment Agency;

    —  for sound technical reasons, (eg in a regime where natural change can occur within the life of the project) some consents would normally be delayed until the actual commencement of works on site. It is now being recognised that, while this approach may suit the department concerned, arrangements could be made for some conditional consent to be granted before the project as a whole commenced. This is not the case at present and leads to a situation in which an investor must commence works without having all necessary consents in place. It is to the credit of the departments concerned that they are recognising the need for consents to relate to the project as a whole; and

    —  at present it is common practice for certain consents to be granted for a limited period only, and not for the duration of the project. On occasion, the renewal of these consents has been used as a vehicle to reconsider the entire project. If the private sector is to be encouraged to invest in major infrastructure projects a situation in which an expenditure capital programme can be suspended for several months while a minor consent is reviewed, is not acceptable. A code of practice is required to resolve this matter. It is to be hoped that this aspect will form part of the consents simplification process. Consents for the life of the project, with suitable review conditions to allow departments to intervene if conditions are not met or predictions made are demonstrably wrong, as described above would greatly assist this problem.

  Although DETR Ports Division are committed to achieving a Code of Practice, it will involve a considerable number of Departments and Agencies (and indeed several parts of large Agencies, such as the Environment Agency). While DETR Ports seem confident that they can achieve such agreement within the Government Agencies, there may be considerably greater difficulty with respect to local authorities, if only because there is a much larger number of them and because they have an existence outside the Government machine. It is therefore highly desirable that the initiative now being taken by DETR Ports Division receives the full backing of Government and perhaps the development of the process should be overseen by the Better Regulation Unit.

  An alternative approach of nominating one Government Agency to act as the "lead agency" for co-ordinating all the consents involved in a coastal zone project was proposed some years ago. For many reasons it simply did not work and should not be considered as an alternative to the approach described above.

  The major advantage of the process described above is that it does not change in any way the existing legal structure and may not even require changes to regulations or SIs.

4.2  Rationalisation of the consents process

  The improvements in efficiency leave untouched the basic regulatory structures. It is suggested that these have now become so complex that there would be a major gain from reduced complexity if, for the coastal zone, existing processes were remodelled to make sure that the appropriate aspects of public interest were protected.

  This requires the existing regulations to be examined without regard to the role of the sponsoring departments (ie to unpack the existing framework). It is anticipated that the regulations will have some overlaps and some conflicts but will substantively meet the required need (ie the protection of the public interest, including environmental protection). In addition there will probably be a requirement for some reconsideration or realignment of detailed mechanisms such as periods available for response, public analysis, and application procedures. Some anomalies may need addressing, such as the fact that the Harbour Revision Order procedure (unlike other similar procedures) does not allow discretion to the Secretary of State to refuse a public inquiry if he deems an objection to be frivolous.

  The end result would be a single process designed to protect the public interest. This would undoubtedly call on the expertise and experience of existing departments and could therefore be mapped back onto the existing departmental structures. There is no doubt, however, that the result of such a process would entail major change to regulations and may require some primary legislation in order to allow the simplified process to function.

  Such a development would result in a major improvement in the transparency of the consent process for both the developer and for potential objectors.

4.3  Overhaul of Coastal Zone Management as a whole

  During the process of the Review of Marine Nature Conservation recently conducted by DETR Wildlife Division, it was concluded in the interim report prepared by DETR, that there is only a limited amount that can be achieved to improve the protection of the marine environment within existing structures. One of the proposals contained in the report is that there should be a major review of management in the coastal zone. This would entail a significant restructuring of Government Departments and responsibilities. If the outcome of such a review were clarity and simplification of the consents process in the coastal zone, then it would be welcomed by coastal zone practitioners including ports. However, great care would need to be taken to make sure that functional responsibilities related to port operation such as pilotage and conservancy (ie maintenance and navigation and safety) continued to be closely integrated into the operation of the ports themselves. The arrangement currently adopted in the UK leads to much more flexible and competitive arrangements in UK ports and better commercial arrangements from the customer point of view.

  This third option is clearly a long term option and one that would require lengthy and careful preparation. It may even be an appropriate candidate for a Royal Commission with a view to implementation after a period of five to ten years, or even longer.

5.  SIMPLIFICATION OF CONSENTS PROCESS

  Within the consents structure there are many individual consents processes containing a number of detailed aspects that require attention. While it is not appropriate to examine these in detail here, the list below illustrates some of the more intractable problems that would need to be addressed. Further information can be provided if required. Examples of the areas involved include:

    —  How to address the matter of "cumulative effects" of may simultaneous projects in a given locality/region.

    —  The requirement for "habitat banking" of compensation in advance of projects.

    —  Comparison with other Member States of the EU.

    —  Monitoring of project impacts.

    —  Transition from "project" status to management of the resulting operation and activities under the Habitats Regulations.

    —  Integration of coastal zone development with the emerging regional bodies in Scotland Wales and the English Regions.

6.  CONCLUSION

  Inevitably a paper such as this can only point to the general direction in which improvements can be sought. The ports industry recognises the commitment of DETR Ports Division and other Competent Authorities within Government to a resolution of the complex issues in the coastal zone.

  The present complexity assists no one and representatives on Government Agencies such as English Nature and NGOs such as RSPB, confirm that addressing the complexity of the consents process is a shared objective.

  Action is required to clarify the brief to conservation agencies and developers, with the separation of the needs case being a possible way forward, followed by a phased programme to simplify regulation in the Coastal Zone. The matter is so serious that it may be worth considering the use of the Better Regulation Unit as a mechanism to ensure interdepartmental cooperation.

April 2001


 
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