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Aurora Energy decision deems discharges prohibited, leaves open question of permit shield applicability
17 September 2014
The regulation of environment law in Northern Ireland is in poor shape. Those with experience of the implementation and enforcement of environment law in the region would agree that change is necessary, both for business and the environment. In the closely linked field of planning law, recent High Court judgments may well signal that radical changes in planning policy are inevitable.
Environmental regulation: change is needed
The legislative and regulatory framework in Northern Ireland differs from that in Great Britain. One example is the contaminated land regime. Legislation equivalent to Part IIa of the Environmental Protection Act 1990 has yet to be implemented, despite having been on the statute books since the bringing into force of Part III of the Waste and Contaminated Land (Northern Ireland) Order 1997.
Despite this, planning controls are bringing about remediation of brownfield sites, but regulatory authorities are having to rely on less adequate powers, such as the "nuisance" provisions of the Public Health (Ireland) Act of 1878, to compel remediation of contaminated sites.
The legislation in force is only as effective as the bodies that regulate it. The bulk of Northern Irish environment legislation is enforced by the Environment and Heritage Service (EHS), which deals with the permitting of emissions, water pollution, waste regulation, etc. On the face of it, this appears similar to Great Britain, where the Environment Agency and Scottish Environmental Protection Agency (SEPA) fulfil these roles. However, unlike in Great Britain, EHS is part of the Northern Ireland Department of the Environment (DoE), rather than a structurally independent agency.
In February 2006, the then Northern Irish Minister for the Environment Jeff Rooker commissioned an independent review of environmental governance. The report, published in May 2007, identified serious failings in the current arrangements. It concluded that the present regulatory structure was "not fit for purpose" and was "not capable either of resolving the environmental legacies of the past, or of responding to present and emerging environmental pressures." Damning words indeed.
A fundamental recommendation of the report is that the regulatory and enforcement functions of the DoE should be separated into an independent Environmental Protection Agency, along similar lines to those in Great Britain.
As a result of the current structure, business in Northern Ireland is suffering due to the lack of an adequate and effective regulator. A credible regulator needs a degree of transparency that cannot be afforded within a ministerial department, where policy-making processes are, by necessity, confidential. Furthermore, the accountability of departmental civil servants to the minister arguably stifles regulatory decision-making, as controversial decisions can have political consequences.
Particular frustrations include the significant delays in granting permits for industrial emissions regulated under the Pollution Prevention and Control (Northern Ireland) Regulations 2003 (PPC). Confusion as to the requirements of PPC and its associated guidance are persistent problems.
Inconsistent and erratic enforcement of waste legislation has also been a major grievance. The construction sector in particular has suffered from a lack of clear guidance on the difficult issue of when materials are considered waste and therefore fall under the regime set out in Part II of the Waste and Contaminated Land Order.
This is by no means a problem restricted to Northern Ireland. However, there is confusion caused by the complexities of determining when waste ceases to be waste and responsibilities under the Controlled Waste (Duty of Care) Regulations are accompanied by heavy-handed enforcement and a distinct lack of appetite by the regulator to engage with legitimate operators on these matters.
The current problems faced by the regulator and those regulated by it are not wholly as a result of EHS' position within the DoE. Years of chronic underfunding and understaffing, along with the low priority afforded to environmental issues as a result of the historic political climate are also crucial issues. The implementation of a stable devolved government can only be a positive move for improving both the state of the environment and its regulation. However, this in itself is not sufficient to secure the fundamental improvements required.
Of course, the Environment Agency and SEPA in Great Britain are not without their shortcomings, but few would suggest that their functions should be moved to central government. It would also be naïve to assume that creating an independent EPA would resolve current problems overnight.
At this time it is unclear whether the DoE is minded to accept the findings of the report and change or maintain broadly similar arrangements to those currently in place. The general consensus outside the devolved Government in Northern Ireland, however, is that an independent environmental regulator is a prerequisite to better regulation.
Planning policy: change is inevitable
In contrast to environmental regulation, one of Northern Ireland's most unpopular and controversial draft policies on planning has suffered a severe blow.
The planning system in Northern Ireland differs considerably from that in England and Wales. Planning decisions are made by the Planning Service, which, like the EHS is an executive agency of the DoE. Decisions on development control are guided and informed by 'Planning Policy Statements' (PPS) issued by the Planning Service/DoE and in some cases the Department for Regional Development (DRD). These are similar in many respects to Planning Policy Guidelines and PPSs in England and Wales.
A particularly controversial draft policy statement (draft PPS 14) was dealt a severe blow in the High Court on 7 September 2007 in a case brought by Omagh District Council. Draft PPS 14 sought to severely curtail the development of single dwellings in the countryside - a policy angering many in the rural community. Mr Justice Gillen ruled that the DRD was acting beyond its legal powers in introducing the policy. While this draft now appears all but dead in the water in its current form, the real impact on future development in the countryside and on applications previously refused on the basis of PPS 14 remains unclear.
Similarly, the fates of Planning Policy Statement 12 (housing in settlements), PPS 13 (transportation and land use) and draft PPS 5 (retailing, town centres and commercial leisure developments) are also unclear in the light of the draft PPS 14 judgment. As with draft PPS 14, all of the above policy statements were also produced by the Department of Regional Development and not the DoE.
Following the ruling on draft PPS 14, the means by which planning policy is formulated in Northern Ireland and the relationship both within and between government departments will inevitably come under further scrutiny. Perhaps the judgment will give further impetus to calls for an independent environmental regulator.
Gary McGhee is a planning partner and Andrew Ryan an environment lawyer at Carson McDowell
but is the government ready to accept that a change is needed? Gary McGhee and Andrew Ryan report