Addressing decades of neglect

Pollution and Planning, a community conference held in Belfast by the Environmental Law Foundation (ELF) - in collaboration with Law Centre (NI), Community Technical Aid and Friends of the Earth - brought together expert environmental lawyers, community planners and campaigners to discuss the way forward for disadvantaged communities in addressing pollution. David Whiting, ELF outreach coordinator, sums up the most pressing environmental issues for Northern Ireland and suggests what can be done through the planning system and the law to address these concerns.

Introduction

The right to a clean and healthy environment for all, both for us and for future generations, is an essential aim for a just and equitable society. In reality, however, it is often the most disadvantaged communities who suffer more from environmental problems, usually because of their proximity to the harm and their lack of access to the necessary resources to address that harm effectively.

Landfill waste

This is particularly the case with waste pollution, especially with landfill sites (ie waste disposal sites onto or into land), which blights the quality of life for many communities in Northern Ireland. There have been recent reports of unregulated landfill sites and the illegal dumping of waste across Northern Ireland, while many existing sites have been allowed to close without adequate monitoring and aftercare plans, posing an environmental and health threat for many decades. Effective control, monitoring and aftercare are essential to prevent pollution to drinking water and nearby streams and rivers (in particular, leachate, a liquid formed when waste is broken down by bacteria which can cause contamination of groundwater), to stop the build-up of dangerous landfill gases which can cause explosions, and to ensure sites do not cause a nuisance to local communities.

Northern Ireland’s Waste Management Strategy, published in 2000, stated primary targets to reduce the landfill of (i) industrial and commercial wastes to 85% of 1998 levels by 2005 and (ii) biodegradable municipal waste to 75% of 1995 baseline levels by 2010. But it seems these will not be achieved. In its Waste Manage-ment Strategy Review published in June 2004, the Waste Management Advisory Board reported that for the latter target data was not available to indicate whether it will or will not be met, while there is no prospect of achieving the former and, indeed, it is not currently even being measured.

Communities fight back

These concerns prompted the Environmental Law Foundation (ELF), a charity which provides legal and technical assistance to people facing environmental problems, to hold a community conference in early December in Belfast under its Community Outreach Programme. Entitled Pollution & Planning, the conference brought together some of ELF’s network of expert environmental lawyers along with community planners and campaigners, to provide advice on what can be done to address these problems. The conference was held in collaboration with Law Centre (NI), Community Technical Aid and Friends of the Earth (Northern Ireland).
The conference pointed to a number of possible avenues to address pollution and environmental issues. Engaging with the planning system, with the regulatory waste management system and with the legal system were identified as particularly relevant.

1. Engaging with the planning system

Effective involvement and engagement by the local community with the planning system is essential, as it plays a key role in determining the way land is used. It is important to address both development control, the process of determining site-specific planning applications, as well as forward planning, the process of preparing the regional development strategy and area plans.

• Development control. In ELF’s experience, people normally seek advice once a planning application has been made, to help them make effective written representations and to present their objections as clearly and effectively as possible. Important considerations will include the site location and the need for an Environmental Impact Assessment (i.e. a systematic examination of the impacts and effects on the environment if the consent were granted). A public inquiry may be held if sufficient objections are received or if the applicant appeals against a refusal.
• Forward planning. The most successful campaigns are those which recognise the strategic importance of influencing the regional development strategy and development plans, especially area plans. As the Department of the Environment’s Planning Service will need to have regard to the plan when determining planning applications (s25(1) the Planning (Northern Ireland) Order 1991), the plan can create presumptions in the way land is used. While a presumption may be overturned where material considerations indicate otherwise, achieving clear plan-led policies and objectives to protect the environment will make inappropriate and environmentally harmful planning consents more difficult to obtain. Similarly, consideration should also be given to relevant planning policy guidance (in the case of landfill sites, Planning Policy Statement 11, Planning and Waste Management (December 2002)), which may strengthen the objectors’ case, both in opposing the planning application and, if consent is granted, in bringing a legal challenge.

2. Engaging with the regulatory waste management system

This is a separate regime from that of planning, and community groups need to be familiar with both. The waste regulatory controls manage the handling of waste (as specifically defined). Much of the waste management strategy has its roots in the European Union’s waste management policy and legislation. Of central importance is the Waste Framework Directive (75/442/EC, as amended) and the Directive on Integrated Pollution Prevention and Control (96/61/EC) which aims ‘to prevent or, where that is not practicable, to reduce emissions in the air, water and land… including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole’ (Article 1). From this and the Landfill Directives a stricter regime applying to landfill sites should become the norm. These directives are being introduced in Northern Ireland gradually through the Landfill Regulations (Northern Ireland) 2003 and The Landfill (Amendment) Regulations (Northern Ireland) 2004.

Specific details as to how a site should be operated will be included in the conditions attached to a waste management licence issued under the Waste and Contaminated Land (Northern Ireland) Order 1997. Other conditions, imposed by planning consent, will also be very relevant: in particular, the provisions to be made for the restoration of the land after operations have ceased. The Order is being implemented by the Waste Management Licensing Regulations (Northern Ireland) 2003, and under this legislation the responsibility for waste management licensing has moved from district councils to the Waste and Contaminated Land Inspectorate of the Environment and Heritage Service, an agency of the Northern Ireland Department of the Environment.

3. Engaging with the legal system

Legal action is sometimes the only means for people to address and remedy environmental harm resulting from abuses in the regulatory systems and a lack of effective enforcement. Successful environmental cases benefit not just the legal claimants but also the wider community both now and for generations to come, who can enjoy a cleaner and healthier environment. In that sense, they are truly public interest cases. Legal action may take a number of forms: a private prosecution against the offender, a claim in statutory or private nuisance, or, more commonly, a judicial review of an act or omission by the relevant regulatory authority which is threatening the environment. Judicial review is often the weapon of last resort where there has been a failure by public bodies to implement and enforce the regulatory controls in both the planning system and the waste management system designed to protect communities from environmental harm.

Barriers to environmental justice

In considering the opportunities for communities to address environmental harm, the problems and barriers are evident. Within the planning and regulatory systems, there is an unbalanced playing field in favour of the applicant. Community groups have no ‘third party’ right of appeal, and usually lack the necessary resources to engage effectively at public enquiry or to deal with the technical licensing issues that arise. The cost of legal proceedings, especially for judicial review cases, is prohibitively expensive especially with the threat of having to pay another party’s legal costs if the community group loses, despite the public interest nature of the claim. Even success in judicial review proceedings will only address the procedural unfairness and not the actual merits of a decision.

Most worryingly in Northern Ireland, not only is the implementation of European environmental legislation often delayed, allowing continuing infringement to pass through the net, but when it is placed on the statute book there is very little effective enforcement. While it is an offence to deposit, knowingly cause or permit the disposal of controlled waste on land without a waste management licence (Article 4 of the Waste and Contaminated Land (NI) Order 1997), those who carry out these illegal activities continue to do so with relative impunity.

Hopeful signs

There are, however, some positive and hopeful signs which should begin to bring a desperately needed change from the decades of environmental neglect that Northern Ireland has experienced. First, as much of the regulatory system on waste has its origins in European Directives, there has been a growing inclination for Northern Ireland based non-governmental organisations to complain directly to the European Commission over the failure of the UK government to comply effectively with Community Law. For instance, Friends of the Earth made a formal complaint to the Commission in May 2004 over the UK government’s persistent failure to implement the Waste Framework Directive in Northern Ireland.

Secondly, last year saw a consultation, led by a coalition of leading environmental groups, on the future of environmental protection in Northern Ireland. The basis of the consultation was Professor Richard Macrory’s report Transparency and Trust – Reshaping Environmental Governance in Northern Ireland, which proposed the establishment of an independent environmental regulator. This, Macrory states, 'is likely to assist Northern Ireland in meeting the requirements of both existing and future European and Community environmental legislation.' The analysis of responses to the consultation concluded that this proposal has received most support from respondents (www.epconsultni.org.uk). If the proposal were to be taken forward, it would at least bring Northern Ireland to a similar level of environmental governance as the rest of the UK.