Review of Environmental Governance in Northern Ireland · Review of Environmental Governance in Northern Ireland 1 Page Foreword 4 Summary of Recommendations 6 ... • Cross cutting

Review of Environmental Governance in Northern Ireland

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Page

Foreword 4

Summary of Recommendations 6

PART 1 SETTING THE SCENE

Chapter 1 The background to the Review 16

Chapter 2 The process of the Review 19

Chapter 3 The Context of the Review 22

Emergence of the environment as a mainstream political issue 22

The importance of a high quality environment as an economic and social asset

23

Hallmarks of good environmental governance 25

Impact of devolution on environmental governance 26

Dominant infl uence of the EU in developing environmental law and policy

27

Review of Public Administration 31

The All-island environment 32

Northern Ireland as a post-confl ict society 33

Sustainable Development 35

Conclusions of the review 36

Contents


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PART 2 ANALYSIS, FINDINGS AND RECOMMENDATIONS

Chapter 4 Improved environmental policy 38

Building political leadership on the environment 39

Forging a strategic vision for Northern Ireland’s environment 41

Realignment of environmental responsibilities in central government

43

An environmental policy community that is fi t for purpose 45

Chapter 5 A new Environmental Protection Agency for Northern Ireland

50

The creation of an independent Environmental Protection Agency

50

Functions and objectives of the proposed EPA 54

The structure and operation of the proposed Agency 59

Chapter 6 Terrestrial and Marine Planning 64

Planning policy 64

Completion of the Area Plan suite for NI 66

Local Government capacity to deliver development consent 67

Powers for the proposed EPA to challenge planning decisions 68

An Environmental Tribunal for NI 70

Proposed EPA as a statutory consultee of the planning process 71

Planning Enforcement 72

Marine Planning 73

Chapter 7 Strengthening accountability 74

An Assembly Environmental Audit Committee 75

Capacity of the NI Audit Offi ce 77


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Chapter 8 Cross-cutting elements of Environmental Governance 78

A ‘State of the Environment’ report for Northern Ireland 79

A Natural Resources Institute for Northern Ireland 80

Advisory Councils 82

Community Planning and the environment 83

An all-island approach 85

Chapter 9 Environmental Justice 88

Northern Ireland Environmental Justice Strategy 90

Professional development of the judiciary 92

New Statutory Impact Assessment for environmental justice 94

Environmental Tribunal 95


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Foreword

Northern Ireland’s environment, with its distinctive natural and cultural features, is one of its

most precious assets. It underpins the health and well being of its people and is central to

its future economic success. In common with many other aspects of life in Northern Ireland,

maintaining and enhancing the quality of the environment has inevitably taken second place to

more urgent priorities until very recently.

This Report thus arrives at a timely moment. Public and offi cial attention is now turned fi rmly

towards the challenges of building a better future. Our hope in preparing it is that it will help

Northern Ireland build that future in a way that combines economic vitality and environmental

quality.

We do not believe that the economy can only grow at the price of environmental decline. Rather

the one is dependent on the other. A high quality environment is an increasingly important

attractor to inward investment as much as a successful economy is needed to provide the skills

and resources to manage increasing pressures on the environment.

To succeed, we need environmental governance that is every bit as systematic and effective

as economic governance. Our report sets out a programme of changes to the present

arrangements that we believe will set Northern Ireland on a path to developing one of the most

modern and comprehensive systems for environmental governance anywhere. But we are

clear that this is only the start of a longer journey, hence our choice of title.

Sharon TurnerTom BurkeChairman

Gordon Bell


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The proposals we have made are just that – the foundations – and like all foundations they must

be built on.

The fi rst part of our report sets out the rapidly changing context in which those who play a part

in managing our environment must work and the process we adopted to consider this complex

set of issues. In the second part we have set out our recommendations for how the assets

available to manage the environment in Northern Ireland might be better arranged.

We could not have completed such a complex task without the active help of a very large

number of people, far too numerous to mention. But we would like to recognise the particular

role of Northern Ireland’s environmental organisations whose campaigning was instrumental in

the convening of the Review. We would also like to thank the offi cials in the Department of the

Environment and elsewhere in Government who gave tirelessly of their time and experience.

I would personally like to thank my colleagues on the Review team, Sharon Turner and Gordon

Bell who have contributed wisdom and wit in equal measure throughout the past 14 months.

All of us owe a great debt to the energy, enthusiasm and relentless discipline of our Secretary,

Evelyn Hoy and her team, without whom we would never have come so far in so short a time.

Tom Burke

Belfast

May 2007


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Introduction

The following summary of recommendations is provided for ease of reference and summarises the recommendations of the Review on the following areas;

• Policymaking on the environment,

• Environmental Regulation,

• Terrestrial and Marine Planning,

• Strengthening Accountability,

• Cross cutting elements of Environment Governance, and

• Environmental Justice.

Part One of the report chapters 1-3 sets out the background and process of the Review and the context in which those who play a part in managing the environment must work. Part Two of the report sets out the Recommendations with more detailed fi ndings and analysis of each.

CHAPTER 4 Policy making on the environment

Summary of Recommendations

Political parties in Northern Ireland should source and undertake formal training and development of their policy staff and offi cers to improve their capacity to engage in political debate on the environment.

An expert, independent special adviser should be appointed by the Minister of the Environment in support of his/her ongoing development of knowledge and expertise in the environmental portfolio.

Building Political Leadership on the Environment


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Government in NI should publish a White Paper on the Environment

The Department of the Environment should develop a mechanism for resolving policy confl ict with other government departments

The Department of the Environment should have policy responsibility for the following;

• environment,• spatial planning, (including the elements which

currently reside with DRD),• integrated coastal zone management, • sustainable water management ,

• water abstraction, • water levels, (currently DARD),• fl ooding and drainage, (currently DARD),• inland fi sheries, (currently DCAL),• inland waterways, (currently DCAL),

• local government and community planning, and• environmental health (currently DHSSPS).

DOE should formally recognise policy development as a specialism, and take steps to support the career paths and promotion of offi cials who wish to specialise in policy.

The Planning and Environmental Policy Group (PEPG) of DOE should create policy teams which include staff qualifi ed in the following specialist fi elds;

• environmental and planning law,• environmental science, and • environmental economics.

DOE should develop, publish and implement a strategy to develop formal links between the knowledge communities involved in the environment.

Forging a Strategic Vision for Northern Ireland’s Environment


An environmental policy community that is fi t for purpose.


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Responsibility for environmental regulation in Northern Ireland should be transferred to a new independent Environmental Protection Agency

The proposed Agency’s principal statutory purpose should be to protect and enhance the environment and in doing so to contribute to the achievement of sustainable development.

Regulatory responsibility for the following functions should be transferred to the new Agency:

(a) Pollution prevention and control(b) Waste management (c) The protection of species and habitats (d) Sustainable water management – including abstraction and

drainage licensing, and river basin catchment management(e) Built Heritage, including archaeology(f) Sustainable inland fi sheries

In the exercise of these functions the proposed EPA shall aim to achieve the following objectives;

• prevention of fl ooding and pollution incidents,• reduction of industrial impacts on the environment,• promotion of biodiversity,• protection and enhancement of the built environment and

cultural heritage,• conservation and enhancement of the natural beauty,

amenity and quality of inland and coastal waters and the land associated with those waters, including integrated coastal zone management,

• conservation and augmentation of water resources, securing their proper use and where necessary redistribution1,

• improvement of contaminated land, and• ensuring that waste produced is correctly disposed of.

1 The EPA’s role in this regard should not relieve the water undertaker of the obligation to develop water resources

for the purpose of performing any duty imposed on it by virtue of section 37 of the [1991 c. 56.] Water Industry Act 1991 (general duty to maintain water supply system).

CHAPTER 5 Environmental regulation


Functions and Objectives of the proposed EPA


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The new Agency should have the following structure:

• a non-departmental public body sponsored by the Department of the Environment,

• the duties and functions of the Agency should be embodied in statute,

• governed by a Board of no more than 12 members,

• the Board should comprise the Chair, the Chief Executive and members providing specifi c expertise in relevant areas,

• members of the Board should be appointed by the Minister of the Environment in accordance with the principles and procedures of the published guidance from the Offi ce of the Commissioner for Public Appointments for NI,

• a Chief Executive should be appointed and should be responsible to the Board for the day-to-day running of the proposed Agency,

• the staff of the proposed Agency should be employees of the Agency and not the Northern Ireland Civil Service,

• the proposed Agency should issue an annual report on the conduct of its statutory duties, and

• the proposed Agency should be located in an iconic historical building or a state-of-the-art new building refl ecting best practices in sustainable building.

The structure and operation of the proposed Agency


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Responsibility for strategic planning policy should remain with central government and should be brigaded with environmental policy within the Department of the Environment. Adequate resources should be provided to local government for it to play its full part in the planning system in Northern Ireland.

Government must allocate suffi cient additional resources to expedite completion of the suite of Area Plans for Northern Ireland.

Local Government must be given the resources necessary to process applications for development consent within the current statutory time limits.

The proposed EPA should be given statutory powers to challenge acts or omissions by local government in relation to the discharge of their planning powers. These challenges should be taken in the public interest.

The Planning and Water Appeals Commissions should be restructured and developed to create a new Environmental Tribunal for Northern Ireland

The proposed EPA should be a statutory consultee to the planning authority.

Development consent should not be granted unless the planning authority is in receipt of an opinion from the proposed EPA or the EPA has waived its obligation to comment.

CHAPTER 6 Terrestrial and Marine Planning

Planning Policy

Completion of the Area Plan suite for NI

Local Government capacity to deliver development consent

Powers for the proposed EPA to challenge planning decisions

An Environmental Tribunal for NI

Proposed EPA as a statutory consultee of the Planning process.


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The planning enforcement function should be retained within central government on the transfer of development control to local government.

Northern Ireland should delay decision-making concerning the proposals set out in the recent Marine White Paper until it has determined the region’s priorities concerning its marine environment.

Northern Ireland’s Marine Management Organisation (MMO) should not be sponsored by Defra and consideration should be given to the creation of an all-island or ‘Celtic Seas’ MMO.

Planning Enforcement

Marine Planning


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The Northern Ireland Assembly should create an Environmental Audit Committee with statutory responsibility for auditing the environmental performance of Government in Northern Ireland. It should be adequately resourced to discharge an audit function effectively.

The capacity of the Northern Ireland Audit Offi ce to investigate the effectiveness and effi ciency of departments and public bodies in the discharge of their environmental functions should be strengthened.

The Northern Ireland Audit Offi ce should publish a report on the value for money of the totality of public expenditure on the environment in Northern Ireland

CHAPTER 7

Strengthening accountability

Assembly Environmental Audit Committee

Capacity of the NI Audit Offi ce


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The Government of Northern Ireland should publish a regular report on the state of the environment at intervals of no more than fi ve years. It should be the responsibility of the proposed EPA to prepare the report.

The Agri-Food & Biosciences Institute should be developed and re-oriented to become a Natural Resources Institute for Northern Ireland.

The Council for Nature Conservation and the Countryside, the Historic Buildings Council, the Historic Monuments Councils and the Drainage Council should be combined into a single Advisory Council to the Department of the Environment.

The potential for the proposed system of community planning in Northern Ireland to build more active citizen participation in environmental management should be investigated.

Appropriate measures should be taken to restore and enhance an all-island approach to environmental governance at policy and operational levels.

CHAPTER 8 Cross-cutting elements of Environmental Governance

A ‘State of the Environment’ Report for Northern Ireland

A Natural Resources Institute for Northern Ireland

Advisory Councils

Community Planning and the Environment

An all-island approach


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The new EPA should publish an environmental justice strategy setting out how its operation and regulatory practices contribute to ensuring environmental justice in NI. This strategy should be reviewed every fi ve years.

The EPA should also publish an annual report concerning the implementation of the polluter pays principle in Northern Ireland.

All tiers of the judiciary should take further professional development concerning the social, economic and environmental impacts of environmental crime in Northern Ireland.

Magistrates should be given new statutory powers to refer cases to the Crown Court for hearing where appropriate.

Government should add environmental justice to the statutory impact assessments required during the development of new policies in Northern Ireland.

Government should establish a specialised Environmental Tribunal for Northern Ireland.

CHAPTER 9 Environmental Justice

NI Environmental Justice Strategy

Professional development of the judiciary

New Statutory Impact Assessment for Environmental Justice

Environmental Tribunal


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PART ONESETTING THE SCENE


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Chapter 1Background to the Review

2 These reports have been published by, for example, Parliamentary and government scrutiny bodies, professional associations, government advisory councils, academics and environmental organisations.

3 Biographies of the panel members can be found at Annex 14 The panel later asked for, and was granted, a two month extension to be able to take account of the constitutional

settlement reached in March 2007

Persistent dissatisfaction with environmental performance of government

1.1 The effectiveness of Northern Ireland’s environmental governance has been the subject of extensive debate and criticism by a broad range of interested parties for many years2. In 2004, a coalition of Northern Ireland’s environmental organisations launched a sustained campaign for the creation of an independent environment agency in Northern Ireland, culminating in the publication of Transparency and Trust: Reshaping Environmental Governance in Northern Ireland. Latterly, it called for this to be preceded by a comprehensive review of environmental governance in Northern Ireland.

The Review is established

1.2 In February 2006, the then Minister for the Environment, Jeff Rooker appointed a panel of experts to conduct an independent Review of Environmental Governance in Northern Ireland.3 The panel was given broad terms of reference, and supported by a secretariat. It was asked to report at the end of March 2007.4

Terms of Reference 1.3 The terms of reference were as follows:

“Taking account of the Review of Public Administration, previous inquiries into environmental governance arrangements in Northern Ireland, and the existing and emerging EU environmental regulatory framework, the Review will address the structure, management and resourcing of the publicly funded elements of the environmental governance system and will bring forward proposals for the future environmental governance arrangements, in relation to environmental protection, the natural heritage and the built heritage, covering such issues as;

• the arrangements for the organisation and supervision of the environmental governance system,

• the arrangements for the resourcing of the environmental governance system, having due regard to the ‘polluter pays’ principle,


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• the role of constituent organisations within the environmental governance system in relation to strategy, policy and legislative development,

• measures to improve the responsiveness and accountability of the environmental governance system,

• the scope for structured co-operation between environmental governance bodies within these islands,

• the Review should be participative in its approach, should conduct its work in an open and transparent fashion, and should consult widely, including with non-governmental expert organisations, stakeholders and the public,

• the Review will commence in February 2006. An interim report of the Review’s fi ndings should be presented to the Minister for the Environment, and published, for public consultation by summer 2006. The interim report should cover such issues as the principles underpinning the Review’s work, emerging models and emerging cost issues, and

• the Review should present and publish its fi nal report by end of the fi rst quarter 2007. The fi nal report should include recommendations for future action supported by a costed business case and a proposed timetable for implementation”.

Purpose of the Review 1.4 In embarking on this task the Review took as its starting point the importance of a high quality environment not only for the immediate well-being of the people of Northern Ireland but also as a key attractor for inward investment and tourism, and to sustain and develop those sectors of the economy dependent on the environment. It recognised that pressures on the region’s environment were intensifying signifi cantly and that there were widespread doubts as to whether the current arrangements for environmental governance in Northern Ireland could deliver the necessary consistency and quality of outcome.


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Scope of the Review 1.5 The Review was conscious that it was not tasked with evaluating the effectiveness of the current suite of environmental policies in place in Northern Ireland. Rather, its challenge was to identify how the assets available to manage Northern Ireland’s environment might be better arranged to deliver higher quality and more consistent environmental outcomes. In thinking about these assets, the Review addressed the focus, structure, roles and relationships between the various elements of the governance regime.


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Chapter 2 The process of the Review

5 A list of the organisations invited to meet with the Review is at Annex 2

The Process was divided into phases

2.1

The Review divided its work into four phases:

• phase one – consultation with interested parties,

• phase two – study visits to other jurisdictions within the UK and Europe to examine other models of good environmental governance,

• phase three – drafting and publication of the interim fi ndings report, and

• phase four – panel deliberation, further dialogue, research, drafting and publication of fi nal report.

Phase One 2.2 Organisations5 from a wide range of sectors were invited directly to contribute to the work of the Review. These included: central and local government bodies, economic interests, including agriculture, science and research institutions, non-departmental government bodies, political parties, voluntary and community groups, trades unions and other representative bodies.

Guiding questions 2.3 To help clarify the Review’s intent and to facilitate subsequent analysis, respondents were invited to address four questions. It was made clear that this did not in any way preclude them from addressing any other issue of interest to them.

2.4 The questions were:

1. What are your responsibilities concerning the protection or management of the environment or why DOEs the environment matter to you?

2. What experiences have you of institutional obstacles, functional limitations or relationship barriers that have inhibited effective environmental protection and/or enhancement?

3. What remedies or solutions do you envisage to these problems?

4. What opportunities for better environmental management would be created for you if change occurred?


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Ensuring transparency in the process

2.5 A number of steps were taken to ensure transparency and facilitate the widest possible participation. Eighty-two organisations were invited to meet with the Review to discuss their submission. The Review was able to meet with fi fty one of these organisations6. These meetings took place in Belfast between April and August 2006. All the meetings were open to the public and the discussion was transcribed and an unedited record posted to a web site established by the Review.7

Written submissions to the Review

2.6 In the available time it was not possible for the Review to meet all of the organisations that made submissions. Every submission received by the Review was, however, posted on the web site. Many of the parties who met the Review also wrote supplementary papers or clarifi ed issues that arose during discussion. These additional submissions were also all made available on the web site8.

Messageboard 2.7 The Review intended that the web site be used by interested parties to interact with each other as well as with the Review to create a richer dialogue. We designed the web site to permit this wider engagement, advertised the availability of this facility and encouraged its use on a number of occasions. The Message Board remained open for comment throughout the whole course of the Review. Regrettably, take up of this opportunity was small.

Phase Two - Study visits

2.8 Concurrent with the fi rst phase of our work, the Review conducted a number of study visits to meet representatives from a wide range of relevant government and non-governmental organisations in Edinburgh, Dublin, Brussels and London. These meetings provided us with a wealth of helpful and useful information and the Review benefi ted greatly from their experience of environmental governance. A summary report of each of meeting was published on the web site.9

Review grateful for advice and guidance

2.9 We are very grateful to all the offi cials and individuals who generously shared their time and expertise during the study visits. Without the benefi t of their insights, experience and willingness to share this with us we could not have properly completed our task.

6 A list of those organisations the Review met in public is at Annex 37 www.regni.info 8 A list of written submissions received from organisations and individuals is at Annex 4 9 A list of the organisations in other jurisdictions with which the Review met is at Annex 5


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Phase Three - Interim Report

2.10 Following the completion of the fi rst two phases of work and in compliance with our terms of reference, an interim report of the Review’s fi ndings was published in September 2006. It identifi ed the key themes that had emerged and foreshadowed the further work of the Review. A copy of the interim fi ndings was published on the web-site.

Phase Four - Completion

2.11 Subsequent to the publication of the interim fi ndings the Review met on six occasions to consider the evidence submitted to it. During this period, further investigations and research were carried out and the Review deliberated on its recommendations.


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Contexts shaping the Review

3.1 The Review took place against a rapidly changing context as signifi cant political and policy developments took place both within and beyond Northern Ireland. In particular, the uncertainty surrounding the constitutional situation posed diffi culties for the Review in formulating its recommendations. It was for this reason that we sought, and were granted, a two-month extension to our remit. Other key contextual factors that the Review took into account were:

• the emergence of the environment as a mainstream political issue,

• the importance of a high quality environment as an economic and social asset,

• the accepted hallmarks of good environmental governance,

• the impact of devolution on environmental governance,

• the infl uence of the EU in developing environmental law and policy,

• the Review of Public Administration,

• the all-island environment,

• Northern Ireland as a post-confl ict society,and

• Northern Ireland’s commitment to sustainable development.

Emergence of the environment as a mainstream political issue

Environment as a mainstream political issue

3.2 This is the fi rst generation to experience the adverse impacts of human activities on the environment on a scale that now threatens global prosperity, security and the quality of life. To the issues of pollution control, waste management, nature conservation and protection of built heritage that made up the 20th Century’s environmental agenda have now been added an increasingly pressing set of 21st Century resource based issues including biodiversity loss, food, energy and water insecurity, deforestation, fl ooding, and climate change. This is refl ected in an increased level of policy and legislative activity, such as the Marine and Climate Bills, the Flood Directive, the Barker Review and the development of the Environmental Justice agenda. As a result, the environment is moving rapidly to the mainstream of national and international politics and is emerging as an important electoral issue.

Chapter 3The Context of the Review


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Environmental issues emerging in Northern Ireland’s politics

3.3 This is also becoming increasingly true in Northern Ireland despite its traditional political focus on constitutional, security and human rights issues. This wider dynamic has been reinforced in Northern Ireland by the political and fi nancial consequences of failure to implement European Union (EU) legislation adequately and the emergence of domestic issues such as the imposition of water charges and the proposed introduction of controls on single dwellings in the countryside. The fact that membership of environmental Non - governmental organisations (NGOs) in the region exceeds the membership of political parties indicates an increasing environmental awareness among the people of Northern Ireland and a further strengthening of the political salience of the environment in regional politics.

Importance of leadership & environmental justice

3.4 Three important expectations fl ow from these changes. First, people increasingly expect government to provide strong leadership on the environment. Second, there is growing awareness that effective environmental management cannot be the responsibility of government alone. Businesses, consumers, voluntary bodies, trades unions, the professions and other public authorities must all play an active part to support government action. Third, more vigorous environmental management requires changes that will alter the pattern of ‘winners’ and ‘losers’ in society. Consequently, the neglected question of environmental justice in the sharing of environmental responsibilities and resources is becoming increasingly important.

The importance of a high quality environment as an economic and social asset

Economic development or environment - a false choice

3.5 A high quality environment is not only important in its own right and as a major factor in ensuring a healthy population; it is also a vital economic asset at a time when attracting inward investment and tourism to Northern Ireland is an immediate priority for government. Protecting the environment is often seen as a constraint on economic development implying a false choice in which prosperity can only be enhanced at the expense of environmental quality or vice-versa. Experience suggests otherwise. But optimising the relationship between the economy and the environment requires a very high standard of environmental governance.


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Benefi ts of good environmental governance

3.6 Better environmental governance offers Northern Ireland major social, political and economic opportunities, particularly:

• a stable and predictable regulatory framework for business,

• a physical environment that is attractive to the tourist and leisure industries,

• community wellbeing in an environment free of damaging impacts on health and with ready access to its natural, built and cultural heritage, and

• an infrastructure of knowledge and skills able to support Northern Ireland’s participation in the emerging global markets for environmental goods and services.


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Hallmarks of good environmental governance

What is good environmental governance?

3.7 Responding to modern environmental issues requires a system of governance that is ‘fi t for purpose’. An extensive literature now exists from national, EU and international sources concerning the core principles of good environmental governance. They include:

• an integrated, transparent and participative approach to policy development,

• policy implementation machinery with responsibilities that are clearly focussed, that deliver measurable improvements in environmental outcome and that is adequately resourced,

• arrangements for administrative and political accountability for that machinery which command public confi dence,

• a high quality body of professional and technical personnel fully trained and well motivated to implement that policy in a manner that fully engages the cooperation of others within and beyond government,

• effective political and professional leadership able to develop and articulate a clear strategic vision for the environment,

• a modern regulatory regime with a strong emphasis on prevention, able to encourage innovation and compliance and where necessary can deliver proportionate and targeted enforcement,

• machinery for fair access to environmental justice to ensure that the balance of costs, risks and benefi ts resulting from environmental change is equitably distributed,

• a knowledge management capacity able to effectively integrate fl ows of information from the scientifi c, technological, economic and legal communities, and

• the communications capability to ensure timely and accessible fl ows of information to individuals and institutions in order that they may participate fully in policy formation and secure access to environmental justice.


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Impact of devolution on environmental governance

The environment within the devolution arrangements

3.8 Environmental governance must, of course be conducted within the wider framework of overall governance. Both the history of Direct Rule and devolution of power in Northern Ireland have had a signifi cant effect on its environmental governance. A key consequence has been highly fragmented machinery for policy development and implementation and weak accountability mechanisms that lack transparency. These structural factors have played an important part in creating the lack of public confi dence in environmental governance of Northern Ireland that was a constant theme of the submissions to the Review.

Fragmentation of environmental governance across central government

3.9 Under the Northern Ireland Act 1998, practically all responsibility for environmental protection is devolved to the Northern Ireland Assembly, subject to the proviso that it must act in accordance with international and EU law. The United Kingdom government DOEs however retain powers to set emissions limits and quality standards. Despite its relatively small scale, NI is served by eleven central government departments. Responsibility for policies affecting the environment falls across nine of the eleven.

Constitutional structures supporting an all-island approach to environmental governance

3.10 Strand 2 of the 1998 Agreement creates the North South Ministerial Council (NSMC), to develop consultation, co-operation and action on an all-island basis on matters of mutual interest. Environment is one area of co-operation and two of the Council’s implementation bodies have an environmental focus, namely Waterways Ireland and The Foyle, Carlingford and Irish Lights Commission.

An all-British Isles approach

3.11 The environment is also an area of co-operation of the British-Irish Council (BIC), which was established by Strand 3 of the 1998 Agreement. Both of these constitutional arrangements intensify co-operation on environmental governance with neighbouring jurisdictions.

Responsibility for scrutiny returns to the local administration

3.12 During direct rule such accountability as there was, was primarily exercised by the Northern Ireland Audit Offi ce and Parliamentary Committees in Westminster. Under devolution it is now located within the structures of the local administration. Each government department in Northern Ireland is subject to oversight by a departmental committee in the Northern Ireland Assembly. These committees play a key role in holding the Executive to account and in advising Ministers and offi cials on the development of policy. Further accountability is provided by the Assembly’s Public Accounts Committee and the Committee of the Centre. Beyond the Assembly, the Northern Ireland Audit Offi ce continues to play a signifi cant role in accountability.


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Dominant infl uence of the EU in developing environmental law & policy

EU dominates adoption of environmental standards

3.13 Almost all policy and legislation governing the Northern Ireland environment is now negotiated and adopted at EU level. There are more than 300 European environment legislative instruments in force. This dominance of European law will continue to be the major infl uence on environmental behaviours and will therefore be the dominant infl uence in setting the framework for environmental governance in Northern Ireland.

Legal obligation to comply with EU law

3.14 European legislation is predominantly in the form of Directives which require Member States to adapt their domestic law so as to comply with the requirements of European law.10 This process is known as transposition. Member States are allowed some discretion in choosing how they carry out transposition provided they meet the legal requirements of the Directive. They are also required to implement the legislation in practice. Transposition and practical implementation must be completed according to the timetable agreed set out in the Directive.

Emerging EU initiatives

3.15 The EU has recently adopted or is currently developing several major initiatives concerning the environment all with signifi cant resourcing, regulatory, economic and social implications for Northern Ireland. These include:

• Water Framework Directive,

• Strategic Environmental Assessment Directive,

• Environmental Liability Directive,

• Registration, Evaluation and Authorisation of Chemicals (REACH),

• Floods Directive,

• EU’s environmental justice agenda, and

• EU Marine Strategy.

Risks of non-compliance

3.16 The European Commission monitors compliance with the transposition and implementation of EU law. Latterly, as was made clear during the Review’s visit to Brussels, the Commission has made the increasingly close monitoring of national compliance with EU law a strategic priority.

10 European environmental law may also take the form of a Regulation. This must be transposed directly into national law. It is rarely used.


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Exposure to risk of signifi cant fi nancial penalties

3.17 Failure either to transpose or implement EU legislation fully can lead to the Commission initiating infraction proceedings against a Member State. Should these result in an adverse judgement in the European Court of Justice, very large fi nes can be imposed on a Member State.

Any fi nes levied will be the responsibility of the NI administration.

3.18 Under Direct Rule, responsibility for payment of fi nes rested with UK Treasury. However, under a Memorandum of Understanding signed as part of the 1998 Agreement, liability for payment of EU penalties was transferred from the UK central government to the responsible devolved administration, in this case, Northern Ireland.

Learning from past failures

3.19 There has been a long history of failure to comply with EU legislation in Northern Ireland. This is another underlying reason for the loss of confi dence in its environmental governance that was reported consistently to the Review. Identifying the lessons to be learnt from this history was an important focus of our work since, in the emerging context of enhanced enforcement, similar failures in future would be very disadvantageous to Northern Ireland.

Concern fi rst expressed in 1990

3.20 Concern about the consequences of the non-transposition and implementation of EU legislation in Northern Ireland was fi rst highlighted in a 1990 report by the House of Commons Environment Select Committee. This led to an effort to address the backlog but progress was too slow to avert the initiation of a raft of infraction proceedings by the EU Commission.


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The threat of EU fi nes is serious and failure to act could be very expensive.

3.21 Three key lessons can be drawn from this unfortunate experience: -

• fi rst, the need to take the threat of EU fi nes seriously and to abandon the deep-seated belief that Northern Ireland was a ‘special case’ for which an exception would be made,

• second, the importance of ensuring effective input from Northern Ireland into the EU policy making process in both London and where possible in Brussels to ensure that the particular economic and social consequences of legislation in Northern Ireland are fully taken into account, and

• third, failing to infl uence EU environmental policy negotiations effectively and to implement legislation in a timely fashion can severely disrupt economic and business planning cycles in Northern Ireland by generating large and unexpected requirements for capital investment at short notice.

NI must be equipped to represent regional interests in EU negotiations

3.22 The UK’s negotiating position in Europe is coordinated and represented by central government in London. This position is developed in co-operation with the devolved administrations but successful infl uencing of the UK’s position by the regions is dependent on having the necessary capacity and expertise to engage in the policy discussion. Given its scale, it is impossible for Northern Ireland to seek to infl uence all streams of EU environmental policy development. Consequently, effective environmental governance in Northern Ireland requires accurate identifi cation of the EU policy processes of greatest relevance. This in turn requires constant, expert monitoring of EU policy initiatives from their earliest inception.

NI can learn from the experience of other devolved administrations

3.23 The Review was impressed by the highly pro-active approach of the Scottish Protection Agency to engagement in EU policy making. However, this appears to be having the effect of further concentrating Department of Food and Rural Affairs’ (Defra’s) attention on England and Wales and underscores the need for Northern Ireland to be sure it has suffi cient capacity in this area to protect its interests by engaging early and effectively in the evolution of EU environment policy. This was well recognised in the recent assessment, conducted by the Northern Ireland Assembly’s Committee of the Centre, of the Executive’s engagement with European policy development.


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DOE will require a change of organisational culture to maximise the opportunities provided by Devolution

3.24 As was noted, the Department of the Environment operates in a fully Europeanised context in which proactive policy engagement was essential. In this respect, it is worth noting that the Committee also recorded the recommendation made by the Assembly’s Environment Committee to the effect that a “radical change of organisational culture” would be required within DOE in order to take advantage of the opportunities posed by devolution to represent regional interests in environmental policy making at EU level.

There are still serious infraction risks

3.25 Infraction risk management should remain as a key focus for the new government. Despite recent improvements there are signifi cant risks associated with the manner in which EU legislation is currently being implemented in Northern Ireland. These include:

• reported delays in the progression of the sewage infrastructure capital works programme,

• continued building in sewage ‘hotspots’,

• compromised environmental regulation through the creation of signifi cant corporate immunity for NI Water and its directors in place of Crown immunity,

• anticipated failure to meet EU waste targets,

• failure to meet the non-deterioration obligation concerning sites designated under the EU Habitats Directive,

• failures to undertake the required levels of site quality monitoring across these sites,

• failure to design water charging so as to incentivise the wise use of water as required by the Water Framework Directive,

• concerns as to NI’s ability to meet existing EU water standards as required by the Water Framework Directive, and

• weak environmental data management within EHS leading to non-compliance with the EU’s Environmental Information Directive.


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Review of Public Administration

Ongoing change process of the RPA

3.26 This Review has been carried out in parallel with the Review of Public Administration (RPA), which is proposing major changes in the architecture and powers of local government. The primary change will be a rationalisation of the current twenty six small local councils into seven larger councils. Traditionally, local government in Northern Ireland has had relatively narrow responsibilities in relation to environmental governance. It is responsible for local air quality, waste collection, public parks and nuisances such as noise, smells and litter. Its role on planning matters has been solely consultative.

Development control and responsibility for Area Plans passing to Local Government

3.27 Under the RPA, responsibility for planning control will be returned to the new councils. This will make them a far more important part of the overall machinery of environmental governance. They will also be responsible for Community Planning. However, at the time of writing the scope and operational features of the Community Planning process had yet to be fi nally determined. Clearly, Community Planning presents an opportunity to build a closer relationship on local environmental matters between citizens and their local authorities.

Local Government must also engage with EU environmental policy processes

3.28 It is vitally important that the new Councils should be adequately resourced, both fi nancially and in terms of the appropriate technical skills, to carry out their larger role in environmental governance more effectively. In particular, bearing in mind the previous section of this report, the Review noted that, unlike in the rest of the United Kingdom, local representatives in Northern Ireland were not yet taking advantage of the opportunities provided by the Local Authorities Association, to engage directly with environmental policy makers in Brussels.


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All-island environment

Environment takes no account of international borders

3.29 Northern Ireland is the only part of the United Kingdom that shares a land boundary with another country. This has particularly important and complex implications for its environmental governance. The environment takes no account of international boundaries, species migrate, air moves and rivers fl ow across them without regard to the consequent environmental management complications. Furthermore, differential enforcement practices can create opportunities for both systematic evasion of regulations and, as Northern Ireland has discovered, criminal activities. Strand Two of the 1998 Agreement acknowledged the importance of cross-border governance relationships and set out the parameters of formal co-operation in relevant areas, one of which was the environment.

The UK approach to the use of economic instruments to drive environmental outcomes has differential impacts in NI

3.30 The Aggregates Levy in Northern Ireland is a good example of this particular problem. In this case, two different methods of driving environmental outcomes; both sound measures in themselves, created a smuggling market for virgin stone and had the potential to cause damage to the aggregates industry in Northern Ireland. Much unproductive effort could have been avoided if the environmental challenge of construction and demolition waste going to landfi ll had been tackled on an all-island basis. Given the increasing use of economic instruments as a tool of environmental policy this case also illustrates the importance of ensuring that Northern Ireland has suffi cient capacity to ensure that U.K. tax policies take full account of their application in an international boundary context.

EU environmental law has an evolving focus on transboundary impacts

3.31 The EU has recognised that the impacts of environmental governance in one region can be acute in neighbouring jurisdictions. Equally it is accepted that close co-operation of the neighbouring jurisdictions can create signifi cant synergies and deliver benefi cial environmental outcomes more cost-effectively. EU environmental law has an evolving focus on transboundary impacts and the benefi ts of integrated catchments management. The EU is also placing more emphasis on transboundary participatory rights on environment in order to ensure that the views of citizens on one side of a border are taken into account on the other.


33

NI can benefi t from negotiating with the EU in co-operation with the Irish government

3.32 Just how complex this issue can become is illustrated by the negotiations over the Nitrates Directive. The interests of Northern Ireland and Ireland were clearly aligned on this issue. Working together enabled both countries to persuade the Commission to treat the island as a negotiating whole when it came to agreeing derogations11 and thus increased Northern Ireland’s bargaining power considerably. However, this also creates tensions in Northern Ireland’s relationship with the other jurisdictions in the U.K. The development of a shared understanding of the state of the environment in the island as a whole and of the impacts of environmental policies across the border would clearly provide a solid analytic foundation on which to deal with this complexity in future.

Northern Ireland as a post-confl ict society

Environmental consequences of confl ict

3.33 Northern Ireland is a society emerging from protracted confl ict that has left a legacy of great physical, cultural and psychological damage. It is now embracing major institutional and constitutional change. For most of the past forty years Government in Northern Ireland has focussed primarily on security and the related constitutional issues. Not surprisingly, the environment received relatively little attention during this period. The result was not only a loss of quality in both the built and natural environment, but also a degraded institutional capacity for environmental governance.

Increased pressure for development

3.34 The end of confl ict has brought with it new priorities that are not always comfortably aligned. There is an understandable desire for regeneration now that Northern Ireland is better placed to attract inward investment. There is also a great need to address outstanding issues on health, education and other social policy issues that received less attention during the confl ict. The pressure to develop is therefore very great. This has resulted in a growing concern that the urgency to develop is leading to an unacceptable loss of built and natural heritage and a lower quality of environment.

11 A derogation is a variation in the application of an EU Directive to take account of particular local circumstances. It is normally for a defi ned period of time.


34

NI’s high quality built and natural environment is a social and economic asset and an attractor of inward investment

3.35 The government of Northern Ireland is thus confronted with the challenge of dealing simultaneously with a considerable backlog of both unmet social and environmental needs. Furthermore, there is a widespread agreement that the high quality of Northern Ireland’s built and natural environment is an essential part of its attractiveness to inward investment. This inevitably places increasing stress on machinery for environmental governance already somewhat neglected and lacking the resources and authority to play its part in striking the necessary balance between these competing needs.

Progress in addressing the environmental legacy of the confl ic

3.36 Northern Ireland is therefore a society in transition. It has begun to address the environmental legacy of the confl ict by taking the following actions;

• clearing the backlog of unimplemented EU environmental Directives,

• production of regular, detailed scrutiny reports of government’s performance in delivering environmental protection,

• commencement of major capital works programme to upgrade the region’s water and sewage infrastructure,

• lifting Crown immunity for the water and sewage industry,

• formation of a sophisticated campaign by a coalition of the region’s environmental NGOs refl ecting an important maturing of this sector,

• launching of a renewable energy fund,

• publishing of the Northern Ireland sustainable development strategy, and

• emergence of substantial environmental policy issues as subjects of political debate in the recent election.


35

Environmental Crime

Cooperation between all actors essential

3.37

3.38

Two further features of life in a post-confl ict society that have a considerable impact on environmental governance in Northern Ireland are the movement of paramilitaries into environmental crime and a judiciary whose attitudes to crime have been shaped by decades of handling violent crime. Serious environmental crimes are being committed by individuals previously involved in the Troubles, including the illegal transport and dumping of waste, smuggling of fuel and aggregates and other forms of environmental crime. This poses particularly diffi cult challenges to unarmed regulators who are exposed to unacceptable personal risks in carrying out their duties.

Considerable effort is being made to overcome this problem by effective cooperation with the police and judiciary. However, it must be recognised that this is a very resource intensive means of regulation that must be properly resourced. Furthermore, sentencing levels do not consistently refl ect the seriousness of the economic, social and environmental impacts of these crimes.

Sustainable development

The transition to sustainable development

3.39 Making a transition to sustainable development is a key objective for the United Kingdom and one in which Northern Ireland must play its part. The Review was aware of the work of the Sustainable Development Commission in Northern Ireland and noted that the Northern Ireland sustainable development strategy12 highlighted the importance of strengthening environmental governance in order to help make that transition.

3.40 Sustainable development is economic development that maintains the social and environmental conditions essential for its continuance. A strong system of environmental governance is necessary to deliver the environmental outcomes necessary to maintain those conditions. The Review has therefore seen its work as an integral component of Northern Ireland’s approach to sustainable development. Without more effective environmental governance Northern Ireland will not be able to implement its sustainable development strategy.

12 A Sustainable Development Strategy for Northern Ireland: First Steps towards Sustainability


36

Conclusions of the Review

The assets of environmental governance in NI are not fi t for purpose

3.41 Consideration of these contextual factors and our extensive discussion with interested parties have led the Review to conclude that: - The current arrangement of the assets for environmental governance in Northern Ireland is not capable either of resolving the environmental legacies of the past, or of responding to present and emerging environmental pressures. These include pressures on the quality and productivity of soils, water, air, loss of species, habitats, marine ecosystems, built and cultural heritage and landscape value. In addition there are the mounting risks posed by climate change. Nor can they deliver the high quality environmental outcomes necessary to underpin economic and social wellbeing and individual health. To postpone signifi cant reform would expose Northern Ireland to serious fi nancial and environmental risks and deny its people signifi cant opportunities to achieve a high quality environment.


37

PART TWO ANALYSIS, FINDINGS AND RECOMMENDATIONS


38

This chapter deals with all tiers of environmental policy making

4.1 This chapter addresses the governance framework supporting environmental policymaking in Northern Ireland. The Review makes a series of recommendations to strengthen the various tiers of decision-making in the development of environmental policy.

New politicians must develop the capacity to lead environmental governance

4.2 Northern Ireland’s new politicians must be supported in the development of their knowledge and experience of environmental governance. The NI Assembly and the Executive Committee must debate and determine Northern Ireland’s environmental priorities.

New responsibilities for DOE, and consequential changes

4.3 The Department of the Environment should be given additional policy responsibilities to enable it to create environmental policy more effi ciently and holistically. DOE’s Planning and Environmental Policy Group (PEPG) requires signifi cant organisational change to enable it to meet the emerging pressures of fast-paced and complex policymaking for the devolved administration.

New relationships with knowledge communities

4.4 Government’s policymakers must build relationships with and maximise the synergies that exist in the knowledge communities in Northern Ireland.

Chapter 4Improved environmental policy.


39

Building Political Leadership on the Environment

RECOMMENDATIONS

Political parties in Northern Ireland should source and undertake formal training and development of their policy staff and offi cers to improve their capacity to engage in political debate on the environment.

An expert, independent special adviser should be appointed by the Minister of the environment in support of his/her ongoing development of knowledge and expertise in the environmental portfolio.

Findings & Analysis

Local politicians are coming to power with limited understanding of environmental issues

4.5 The Review was impressed with the process undertaken in Scotland in the two years prior to devolution to assist new politicians to come to terms with the policy making process. One of the benefi ts of this investment was that it considerably enhanced the Scottish Executive’s ability to infl uence the UK’s negotiating line in Europe and thereby ensure effective representation of regional interests. It also stimulated the Scottish Environment Agency to collaborate with Scottish Enterprise to ensure regional exploitation of economic opportunities posed by new legislation on the environment. Engagement with the Northern Ireland political parties during the listening phase of the Review made it apparent that an equivalent depth of understanding concerning environmental policy has not yet developed in Northern Ireland.

The knowledge defi cit must be fi lled quickly to maximise economic, social and environmental opportunities.

4.6 Political leadership is central to Northern Ireland’s ability to govern its environment effectively. It is essential that politicians in Northern Ireland quickly gain a deep understanding of the full breadth of the environmental portfolio and its implications for regional economic and social wellbeing. This will enable them to provide the political leadership required for effective environmental governance.


40

NI Political Parties should consider formal professional training and development by the policy staff and offi cers who will be involved in environmental governance.

4.7 Staff members of the political parties will be directly or indirectly involved in environmental governance. Some politicians will take formal roles through appointment to Ministerial and Committee posts, or as spokespeople for their respective parties. Within each party there also should be a capacity at policy staff and offi cer levels to act as intelligent customers for policy proposals on the environment emanating both from within government and externally. Political Parties in Northern Ireland should invest in programmes of professional development for such individuals to build capacity and knowledge within the parties.

The Minister of the Environment should appoint an environmental expert to provide ongoing independent advice.

4.8 As detailed in Part 1, the new Minister of the Environment is taking on the portfolio at a time of signifi cantly increased pressure on the environment. At the same time there is heightened scrutiny from the European Commission on Northern Ireland’s implementation of EU legislation. In the light of experience from elsewhere, and in addition to the support that the Minister will receive from offi cials, the Review concluded there would be value in the appointment of an expert special adviser to provide support in the day-to-day management of the environmental portfolio and capacity building within the Party.


41

Forging a Strategic Vision for Northern Ireland’s Environment

RECOMMENDATION:

Government in NI should publish a White Paper on the Environment

The Department of the Environment should develop a mechanism for resolving policy confl ict with other government departments

Findings & Analysis

NI’s environment is the responsibility of the whole government.

4.9 The Review has illuminated the diversity of governance structures and processes involved in managing the environment in Northern Ireland. We heard frequently from both offi cials and others that the overly dispersed machinery of environmental governance creates confusion and additional burdens of time and cost for policymaking and service delivery. This is compounded by the lack of a clear vision of the environmental priorities for the Northern Ireland. This, in turn, limits the opportunities for the business and voluntary sectors, as well as communities and individuals, to take the initiative in delivering a higher quality environment. It also complicates their efforts to comply with environmental regulations.

Many diverse strategies and statements on environmental issues.

4.10 The newly devolved Government is inheriting a wide range of strategies and policy statements on the environment. These are often inconsistent and sometimes contradictory. A degree of tension between the policy aims of different government departments is inevitable but a clear articulation of government’s strategic environmental priorities for the region is essential to good environmental governance.

White Paper 4.11 A White Paper on the Environment in Northern Ireland will serve a number of purposes. It will;

• provide a clear focus for public and professional debate on the future of Northern Ireland’s environment and its place in accelerating regeneration and improving well being,

• help to align strategic thinking and policy development in other policy areas that impact on the environment, and

• clearly articulate the new Government’s environmental priorities.


42

Government ownership of the process and result

4.12 Environmental governance is not the sole responsibility of DOE within Northern Ireland’s government. It is essential that a Northern Ireland White Paper on the environment represents a vision for the environment developed by the whole Government. Policy proposals created thereafter should then accord with the principles and vision set out in the White Paper on the Environment.

Clear and publicly visible mechanisms for resolving potential policy confl icts

4.13 Delivering on the interdependent goals of economic regeneration and a high quality environment requires a much greater integration of policy than has been achieved in the past. Unresolved policy confl ict is a deterrent to investment, sends confusing signals to business, communities and citizens and undermines public confi dence in environmental management. There will inevitably be times when policy objectives will confl ict. What is important for both business and public confi dence is that there is a clear and publicly visible mechanism for resolving those confl icts. The Review therefore recommends that the Department of the Environment develop a set of Memoranda of Understanding with other government departments setting out the areas where the potential for policy confl ict is high and the agreed principles on which efforts will be made to resolve them prior to the taking of political decisions.


43


RECOMMENDATION

The Department of the Environment should have policy responsibility for the following;

• environment,

• spatial planning, (including the elements which currently reside with DRD),

• integrated coastal zone management ,

• sustainable water management,

• water abstraction,

• water levels, (currently DARD),

• fl ooding and drainage, (currently DARD),

• inland fi sheries, (currently DCAL),

• inland waterways, (currently DCAL),

• local government and community planning, and

• environmental health (currently DHSSPS).

Findings and Analysis

Environment is defi ned more broadly than ever before

4.14 Achieving the necessary degree of policy co-ordination on the environment poses a major challenge for all governments. NI is no exception. On the one hand, small scale presents an opportunity to achieve signifi cant improvements in environmental policy co-ordination. However, this opportunity is tempered by the fact that any recommendations for structural realignment must take into account the exigencies of power sharing. The present fragmentation of responsibility for environmental policy has created a policy system that is not fi t for purpose. If Northern Ireland is to meet both the increasing pace and pressure of EU policy making on the environment and emergence of serious environmental threats to its economy and society, it is essential that the allocation of environmental policy responsibility is better aligned.


44

Best alignment for environmental governance.

4.15 The allocation of the responsibilities for the environment within central Government should therefore change. In particular, the return of control over spatial planning policy to the Department of the Environment is essential to more effective environmental governance. Environmental policy and spatial planning policy are inextricably linked. Spatial planning policy is a key non-regulatory, non-fi scal tool of environmental governance. Modern environmental policy focuses on preventing unacceptable outcomes arising in preference to regulating them later. Proper spatial planning, for instance, by discouraging construction on fl ood plains, can anticipate and prevent problems and minimise the potential for confl ict between environmental quality and economic opportunity. A more detailed treatment of the role of planning issues in environmental governance will be found in Chapter six.

Sustainable water management

4.16 Responsibilities for the governance of the water environment are amongst those most fragmented. This area was found by offi cials, users and the public to have a confusing and duplicative series of policy and operational bodies. This threatens to make the implementation of the Water Framework Directive, and its emphasis on integrated river basin management, considerably more diffi cult. The Review discussed this at length both with offi cials in the relevant departments and agencies and also with business and the non-governmental community. We concluded that the creation of a clear policy focus for the water environment in Northern Ireland would signifi cantly improve its environmental governance.

Environmental Health Policy

4.17 Environmental health policy was originally located in DOE. However, in 1996, this function was transferred to the Department of Health and Social Services13 as it was thought that greater leverage of environmental policy considerations into health policy could be attained. In the event, the result was that the unit transferred was too small a force within its new Department to obtain better engagement between health and environmental policy. Over a relatively short period the unit declined to a staff of one. The interaction between environmental policy and human health is of growing importance as the rising costs of health care place a premium on prevention rather than cure. The Review concluded that this interaction would be better served by restoring responsibility for environmental health policy to the DOE.

13 Now the Department of Health, Social Services and Public Safety (DHSSPS)


45

Not persuaded by a Defra model of central government department

4.18 It was suggested to us that policy responsibility for agriculture and the environment should be brought together in a manner similar to that of Defra. The Review considered this idea carefully but was not persuaded of its merits. The experience in England and Wales has not been universally seen as successful. It would reverse the well-established principle of clearly separating the promotional from regulatory functions of government and thus to a loss of clarity of mission. It generates a perception that the environment is primarily a rural rather than urban issue and thus to an institutional over-emphasis on rural environmental problems at the expense of those in urban areas that affect most people. The Review recognised that there needed to be a more collaborative and forward looking relationship between agriculture and the environment but concluded that this would be better achieved by the implementation of the other measures proposed in this report.

An environmental policy community that is fi t for purpose.

RECOMMENDATION

DOE should formally recognise policy development as a specialism, and take steps to support the career paths and promotion of offi cials who wish to specialise in policy.

The Planning and Environmental Policy Group (PEPG) of DOE should create policy teams which include staff qualifi ed in the following specialist fi elds;

• environmental and planning law,• environmental science, and • environmental economics.


A strong policy community is essential to good environmental governance

4.19 Although the process of governance engages a wide range of partners, effective environmental governance starts with an effective policy community. A strong policy community is the central driver of the governance process.


46

Planning and Environmental Policy Group

4.20 DOE’s Planning and Environmental Policy Group (PEPG) has a current staff of 124 offi cials divided between two commands. An offi cial at Grade 5 leads each command14. The staff include 3 lawyers and 15 Professional and Technical staff15. The remainder comprises general service administrative staff across a range of grades.

Planning only recently incorporated

4.21 PEPG in its current form is a relatively new structure. DOE transferred a portion of spatial planning policy staff from Planning Service into the Environmental Policy Group in March 2007. The Review supports this restructuring and considers that a more comprehensive amalgamation of the planning and environmental policy staff should follow.

Predominantly general administrative staff in policy group. Diffi cult to retain corporate knowledge

4.22 Due to the policy vacuum of direct rule, the small scale of the regional civil service and its traditional emphasis on service delivery, there have been limited opportunities for civil servants to develop career paths wholly within the fi eld of environmental policy development. It is not common for general service staff to remain in PEPG for prolonged periods of their career and offi cials often transfer to other branches of DOE and other Departments on promotion. Consequently, there is a relatively high turnover of staff and policy managers frequently lose much of the institutional experience gained by staff when they transfer or are promoted. The Environment and Heritage Service provides the majority of the technical analysis of the scientifi c and regulatory implications of policy options for PEPG.

Reliance on the advice of the regulator skews the policy process

4.23 There are weaknesses in the reliance of the policy core on scientifi c and technical expertise from EHS. This approach distorts the policy process in two important ways. First, policy progress is determined by the regulator’s willingness and ability to release the necessary staff. As evidenced during the recent EU infraction crisis, the reliance of the policy core on EHS for scientifi c and technical advice put inordinate pressure on EHS, which was itself, at this time, already under resourced and could not release technical staff for prolonged periods.

14 An organisation chart of DOE Planning and Environmental Policy Group is at Annex 615 Five of these fi fteen posts are currently vacant.


47

Need to have the capacity to act as an intelligent customer of technical advice

4.24 Second, the policy core has no capacity to develop an independent understanding of technical advice provided by the regulator (or any other source) and more importantly to probe this advice for potential bias to suit the regulator’s preferred approaches or emphasis. The relative weight of any one source of scientifi c advice should not be disproportionate or partial. This independence becomes ever more important with the externalisation of the regulator.

Advice to the policy community must come from a variety of sources

4.25 The policy community must be able to procure independent scientifi c and technical analysis from other sources including, the Agri-food and Biosciences Institute, universities, the private sector and sources external to NI. Embedding scientifi c staff in the policy core will ensure that there is suffi cient in-house scientifi c and technical capacity to act as an intelligent customer of technical advice received from a broad variety of sources.

Legal specialists 4.26 PEPG currently relies on a small cohort of legal staff seconded from the Departmental Solicitor’s Offi ce (DSO) for legal advice on the handling of EU infractions and the development of policy and legislation.

Need to build capacity of expertise

4.27 The value of dedicated in-house lawyers in the context of environmental policy making is widely accepted across the UK. Although PEPG has acknowledged the need for in-house legal services to its environmental policy core, its current approach to this element of the policy core is weak.

Environmental law skills are scarce within the system

4.28 The policy core must be equipped with environmental lawyers to provide specialist advice and to embrace interdisciplinary working approaches. Modern government is a highly complex process, which depends on access to confi dent and expert legal advice. This is particularly the case in the fi eld of environmental law. If government in NI is to adequately discharge its devolved responsibilities and handle its considerable liabilities in this sphere, it must invest in legal specialisation, continuing professional development and legal succession planning in this rapidly evolving and highly technical legal fi eld.


48

Economic expertise almost entirely all out-sourced

4.29 In common with science and legal disciplines, economic expertise in assessing regulatory impacts and costs is a vital element of environmental policy. Within PEPG this service is almost entirely out-sourced at present through a series of short-term contracts. As a consequence, no expertise or institutional knowledge in this discipline is being built up in the policy core.

In summary, EPD must have suffi cient mass of expertise in environmental science, economics and law.

4.30 The Review’s visits to England and Scotland made it clear that appropriate levels of embedded specialist knowledge and interdisciplinary working are critical to the effective functioning of an environmental policy community. A policy community that is fi t for purpose must comprise fewer generalist staff and accrue suffi cient critical mass of the necessary disciplines to;

• provide direct scientifi c, legal and economic advice to support policy development,

• act as an intelligent customer of technical advice from other sources,

• ensure accurate and timely economic assessment of regulatory impacts,

• provide early and accurate analysis of the implications for NI of emerging proposals for new EU environmental standards,

• participate more effectively in the complex and rapidly moving national policy discussions surrounding the development of the UK negotiating line concerning proposals for new EU Directives,

• engage in confi dent negotiations with key stakeholders at regional, national and EU levels,

• formulate robust defences for NI in any new infraction proceedings,

• develop and implement a robust internal alarm system to warn the Executive and Assembly of serious infraction threats, and

• constructively engage with the process of legislative scrutiny by the Assembly Environment Committee by providing full explanation of the rationale behind specifi c legislative proposals and an analysis of the scientifi c and legal implications of adopting the Committee’s proposals for amendments.


49

RECOMMENDATION

DOE should develop, publish and implement a strategy to develop formal links between the knowledge communities involved in the environment.


Potential mutual benefi ts in better relationships with other knowledge communities

4.31 Given Northern Ireland’s relatively small scale and the range of bodies and organisations with environmental knowledge and expertise, it is neither practical nor desirable for government to struggle to have a suffi cient internal critical mass of experts. In addition to the recruitment of technical expertise and the creation of interdisciplinary working, PEPG needs to develop a much more porous relationship with the knowledge communities represented by the university, government and private sectors. With some exceptions, the relationships between the DOE’s planning and environmental policymaking community and the higher and further education institutions in Northern Ireland in particular are sporadic and relatively informal. Through a process of secondments and other lateral relationships, there is huge potential for mutual benefi t to the organisations involved and to the region as a whole.

Encouraging policy-relevant research

4.32 The Review was particularly interested in the Scottish experience of aligning and trying to develop synergies in environmental research throughout the knowledge communities there. Scottish Environment Protection Agency (SEPA) pointed out that although there is a £900million national budget for environmental research, universities have not been proactive in engagement in policy relevant research.

A strategic approach is required to maximise synergies

4.33 DOE should develop a strategy to build robust and mutually benefi cial relationships within NI’s knowledge communities to maximise the potential of synergies in research.


50


RECOMMENDATION

Responsibility for environmental regulation in Northern Ireland should be transferred to a new independent Environmental Protection Agency

Findings & Analysis

NI’s environmental regulator - EHS – is within the structure of central government

5.1 Responsibility for environmental regulation in Northern Ireland currently lies with the Environment and Heritage Service which is an executive agency of the Department of the Environment. This makes it increasingly out of step with good governance practice elsewhere which has moved consistently to separate institutional policy making from regulation. Northern Ireland is now unique in the United Kingdom jurisdictions in not having an independent environmental protection agency.

Independence strengthens public confi dence, transparency and accountability.

5.2 The broad argument for independence turns on the need for the regulator to command public confi dence and to act, and be seen to act, in a consistent and predictable manner. This is more readily achieved if regulatory decisions are, and are believed to be, immune from unwarranted interference by Ministers or offi cials. It is, of course, entirely proper for Ministers to have an important voice in environmental regulation and by retaining the power to direct an agency and to issue guidance to it with regard to the exercise of its powers, they do so. However, independence from central government ensures that those powers are exercised in a transparent and accountable manner.

Loss of confi dence in the current arrangements

5.3 A constant message to the Review, from many quarters, was that the current arrangements did not meet these tests. Environmental regulation in Northern Ireland is widely perceived to be inconsistent and lacking transparency with the result that there has been a loss of confi dence in the Government’s willingness and capacity to enforce environmental policy in a fair, consistent and predictable manner.

CHAPTER 5 A New Environmental Protection Agency for Northern Ireland


51

Abercorn, Balfour and the HOC Environmental Select Committee 1962-1992

5.4 Environmental regulation in Northern Ireland has been the subject of several previous reports beginning with the Abercorn Report in 1962. This was followed by the Balfour Report in 1984 and in 1992 by a report from the House of Commons Environmental Select Committee. They supported the creation of an independent environment agency for Northern Ireland but this recommendation was rejected by the Government of the time.

Prior Options Report 1996

5.5 In 1996, the Government of Northern Ireland returned once again to consider the merits of independent regulation in its Prior Options Study undertaken in the lead up to the creation of Next Steps Agencies. The Study noted that independence “to enter public debate, advocate for radical change in policy or to criticise openly a decision or stance taken by the Government” would be the main advantage of independent status, but concluded that there was no “particularly strong” argument to support following the national trend for independent environmental regulation. Moreover, the Study emphasised that there was no consensus amongst external bodies in the region as to the preferred status for regulation.

It was considered that EHS’ location inside government would afford greater infl uence

5.6 The Study conceded “the theoretical merits” of independence, but argued that an entity within Government could exert a much greater degree of infl uence than one outside and that it was inappropriate for Government agencies to be subject to regulation by a Non Departmental Public Body. It therefore proposed the creation of the present Environment and Heritage Services as an executive agency of the Department of the Environment.

Sustained criticism by scrutiny bodies 1998-present

5.7 Over the next decade more critical reports were published by both regional and national bodies highlighting further failures by EHS to command public confi dence as an environmental regulator. The nature of these failures has been documented elsewhere and were rehearsed in a number of the submissions received by the Review and therefore it is not necessary to rehearse them again in this context. In 2004, this led the nine leading environmental NGOs in Northern Ireland to form a coalition to campaign for an independent agency. A leading authority on environmental law, and former Board member of the Environment Agency, Professor Richard Macrory, was commissioned to carry out an analysis of the options for reform.


52

Transparency and Trust, 2004

5.8 His report, Transparency and Trust: Reshaping Environmental Governance in Northern Ireland, was published in February 2004. It mapped the complex landscape of environmental governance in Northern Ireland and provided an analysis of the comparative arrangements for environmental regulation in Great Britain, Ireland and in other EU countries. It also proposed a series of options for the better delivery of environmental regulation, strengthening the regulator’s accountability and providing independent policy advice to government.

Consultation exercise resulted in strong support for an independent EPA

5.9 The NGO coalition launched a public consultation seeking views on the Macrory options. An independent analysis of the consultation responses, carried out by Liz Fawcett Consulting in October 2004 found that there was widespread dissatisfaction with the current state of environmental protection in Northern Ireland; with the levels of accountability of public bodies engaged in environmental protection and with the degree of co-operation between them. It also found strong support for the creation of an independent environment agency in Northern Ireland. It was in the wake of this campaign that the then Environment Minister, Lord Rooker, appointed this Review.

Barriers to regulation include lack of transparency

5.10 Three barriers to effective environmental regulation by bodies internal to central government have emerged from experience in Britain and elsewhere. First, the necessary confi dentiality of departmental policy making processes and inter-departmental debate creates a serious lack of transparency around the making of regulatory decisions. Without transparency regulatory decisions command neither the confi dence of the public nor that of the regulated.

Real and perceived confl icts of interest

5.11 Second, the offi cials administering the regulations are exposed to both a real and perceived risk of confl ict of interest. This places the offi cials themselves in an unfair position in relation to the discharge of their statutory duties and further undermines the confi dence of the public and that of the regulated in regulatory decisions. As departmental civil servants, the offi cials in charge of regulation are accountable, through the Department’s Permanent Secretary, to Ministers. Their fi rst priority is to serve the Minister. Regulatory decisions are predominantly matters of judgement and can frequently result in decisions that are unpopular in some, and occasionally many, quarters. Inevitably, there is suspicion, indeed some risk, that judgements might be tailored to suit immediate political circumstances.


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Capacity for public advocacy on the environment

5.12 Third, the effectiveness of the proposed agency as a promoter of fair and effective regulation and as an advocate for high environmental standards is inhibited. Modern environmental governance requires a strong and focused regulator able to adopt modern risk-based regulatory practices without a loss of public confi dence. The proposed Agency therefore needs to be able to position itself in the public mind as a forceful advocate for the environment. To do so it needs to be able to carry out successful outreach activities whilst avoiding the risk of being seen to be at odds with the Government.

Reasons for support for externalised regulation and creation of an independent EPA

5.13 It is often argued against creating an independent regulatory body that operating within government allows the regulator to have much more infl uence on policy than can be achieved by an independent entity. This argument was put explicitly by the 1996 Prior Options Study as a reason for not creating an independent environment agency. Leaving aside the point that the primary purpose of a regulatory body is to deliver the desired outcomes of policy rather than to contribute to the formation of that policy, there is now a persuasive body of evidence that this hope was misplaced. The inability of EHS to exert infl uence within DOE was cited by several of the bodies that made submissions to the Review. Their examples refl ected the judgement of the Northern Ireland Audit Offi ce’s 1998 report, which noted the failure of EHS to infl uence decision making concerning the regulation of pollution by the Water Service. The recently published proposals by the Department for Regional Development for statutory defences against environmental regulation for the future water industry do not obviously refl ect signifi cant infl uence infl uence from EHS.

Signifi cant loss of public confi dence in process of environmental regulation

5.14 In view of the prime importance of restoring confi dence in environmental regulation in Northern Ireland, the submissions of evidence made to us and the above considerations, the Review concluded that the present institutional arrangements for environmental regulation do not refl ect modern standards of environmental governance and that EHS should be replaced by an independent environmental protection agency.


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16 The EPA’s role in this regard should not relieve the water undertaker of the obligation to develop water resources for the purpose of performing any duty imposed on it by virtue of section 37 of the [1991 c. 56.] Water Industry Act 1991 (general duty to maintain water supply system).

Functions and Objectives of the proposed EPA

RECOMMENDATION

The proposed Agency’s principal statutory purpose should be to protect and enhance the environment and in doing so to contribute to the achievement of sustainable development.

Regulatory responsibility for the following functions should be transferred to the new Agency:

(a) Pollution prevention and control

(b) Waste management

(c) Protection of species and habitats

(d) Sustainable water management – including abstraction and drainage licensing, and river basin catchment management

(e) Built Heritage, including archaeology

(f) Sustainable inland fi sheries

In the exercise of these functions, the proposed EPA shall aim to achieve the following objectives;

• prevention of fl ooding and pollution incidents,

• reduction of industrial impacts on the environment,

• promotion of biodiversity,

• protection and enhancement of the built environment and cultural heritage,

• conservation and enhancement of the natural beauty, amenity and quality of inland and coastal waters and the land associated with those waters, including integrated coastal zone management (ICZM),

• conservation and augmentation of water resources, securing their proper use and where necessary redistribution,16

• improvement of contaminated land, and

• ensuring that waste produced is correctly disposed of.


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Findings & Analysis

Principles considered in determining the functions of the proposed Agency

5.15 The following widely accepted principles have informed our thinking on the assignment of functions for the proposed Agency.

• the need to have a suffi cient range of regulatory controls to deliver the required environmental outcomes,

• the need to support a strongly integrated approach to regulation which refl ects the reality of the environment itself,

• the need to create an Agency that is appropriate to the scale of the region but which takes account of the environmental realities of a shared island and the consequent regulatory implications,

• the need for clarity of function and avoidance of duplication,

• the need for clear alignment of responsibility between the proposed Agency and the Department, and

• the need for enhanced transparency, simplifi cation and clarifi cation of the regulatory arrangements in order to deliver better regulation.

Pollution Prevention and Control

5.16 The current responsibilities of EHS for the prevention and control of pollution should be transferred to the proposed Agency. Preventing loss of water and air quality to protect human health and the normal functioning of ecosystems is a core purpose of environmental regulation. The proposed Agency should have responsibility for the implementation of all the currently applicable legislation governing air and water quality with the exception of that relating to local air quality where regulatory responsibility lies with, and should continue to lie with, the local authorities.


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Industrial Pollution and Radiochemical Inspectorate

5.17 The opportunity should be taken to resolve the anomalous position of the Industrial Pollution and Radiochemical Inspectorate and regularise their statutory position to bring it into line with the rest of the proposed EPA

Drinking Water Inspectorate

5.18 The Review considers that the location of the Drinking Water Inspectorate in EHS is inappropriate. Functional responsibility for the provision and quality of public drinking water supplies should reside with the Department for Regional Development.

Waste Management 5.19 The current EHS responsibilities for waste management should be transferred to the proposed Agency. Human activities generate a very wide range of domestic, industrial, agricultural and commercial wastes some of which will be hazardous or toxic. The safe and effective collection and management of these wastes is a central challenge to the maintenance of air and water quality. Integrating waste management with other aspects of pollution control is essential to the prevention of cross media transfers of pollution.

Biodiversity 5.20 The current EHS responsibilities for all aspects of biodiversity management should be transferred to the proposed Agency. Northern Ireland’s biodiversity asset is under increasing pressure from a variety of directions including land-use change, pollution and climate change. Retaining the present integration of biodiversity management with other aspects of environmental management permits valuable operational synergies and better environmental outcomes.

Countryside Parks 5.21 Responsibility for country parks currently lies with EHS. The Review concluded that the creation of a new and more capable structure of local government creates an opportunity to transfer management of countryside parks to the appropriate local authorities.


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Built and Cultural Heritage

5.22 The Review was particularly aware of the concerns of those involved with the protection of built and cultural heritage about its historic marginalisation compared to pollution control. There was a considerable body of evidence to suggest that these concerns were justifi ed. In particular, there was under-recognition of the importance of Northern Ireland’s built and cultural heritage for its economic regeneration. The Review considered a number of options to address this concern but concluded that the risk of marginalisation remains true irrespective of whether it is located within central government or integrated within the proposed EPA. Although there are arguments in support of both options, the Review concluded that the interests of built and cultural heritage would be better served by the independent, outward facing Agency it is proposing. From which it follows that responsibility for Ancient Monuments should also be located within the proposed Agency.

Sustainable management of the water environment

5.23 The sustainable management of water both as a resource and environmental medium is one of the most complex and diffi cult environmental management issues. For that reason the role of the proposed Agency in addressing it is considered in more depth.

Coordination of river basin catchment management

5.24 The modern approach to water management seeks to treat river basin catchments as an integrated whole. This inevitably creates signifi cant challenges in coordinating management activities not only across administrative boundaries but also, as in the case of Northern Ireland, across national boundaries. The confl ict between a modern regulatory approach and historic administrative structures often leads to arrangements too fragmented to be effective. This is the case in Northern Ireland where responsibility for resources, quality and access is shared across the following bodies: The Rivers Agency, the Fisheries Conservancy Board, the Loughs Agency, the Drainage Council, Waterways Ireland and the Offi ce of Public Works in the Ireland.


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Proposed EPA should have the lead in coordinating the work of bodies in the freshwater environment.

5.25 These very fragmented arrangements signifi cantly compound the diffi culties of meeting the requirements of the Water Framework Directive in a timely and cost-effective manner and more generally inhibits sustainable water management. They also lead to a duplication of effort in relation to regulation of fi sheries. The Review discussed this issue at length and concluded that there needed to be a body specifi cally charged with taking the lead in aligning the work of this complex network. The Review concluded that this task should be assigned to the proposed Agency, which should be given the necessary authority and resources to discharge this role effectively The functions of the Fisheries Conservancy Board and the Loughs Agency17 should therefore be transferred to the proposed EPA.

Rivers Agency functions and resources transfer to the proposed EPA

5.26 The Review also agreed with the recent Rivers Agency review of fl ood management policy that responsibility for fl ood risk planning and management should be transferred from the Rivers Agency to the proposed EPA. We also concluded that because of the importance of prevention in fl ood risk management and its interaction with other environmental considerations the direct labour organisation associated with fl ood risk management should also be transferred to the proposed Agency.

Integrated Coastal Zone Management (ICZM)

5.27 The Department of the Environment has, and should continue to have the policy lead for integrated coastal zone management (ICZM). The coast is affected by the policies and operational activities of numerous public bodies. In considering the implementation of the Northern Ireland strategy for ICZM, the Review concluded that no single government department holds the necessary levers of control to ensure that all the relevant departments and public bodies exercise their powers to achieve its objectives. The proposed EPA should have statutory responsibility for monitoring implementation of the ICZM strategy and should have the authority to seek Ministerial direction of government departments and other public bodies to exercise their powers to comply with the aims and objectives of the ICZM strategy. DOE’s Minister should also be conferred with equivalent powers of direction in relation to complaince with the Water Framework Directive, which similarly requires coordinated action.

17 Foyle, Carlingford and Irish Lights Commission is an implementation body of the North South Ministerial Council and consists of two Agencies i.e. The Loughs Agency and Lights Agency: The Loughs Agency is responsible for the management and development of the Foyle estuary and Carlingford Lough.


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The structure and operation of the proposed Agency

RECOMMENDATION

The new Agency should have the following structure,

• a non-departmental public body sponsored by the Department of the Environment,

• the duties and functions of the Agency should be embodied in statute,

• governed by a Board of no more than 12 members,

• the Board should comprise the Chair, the Chief Executive and members providing specifi c expertise in relevant areas,

• members of the Board should be appointed by the Minister of the Environment in accordance with the principles and procedures of the published guidance from the Offi ce of the Commissioner for Public Appointments for NI,

• a Chief Executive should be appointed and be responsible to the Board for the day to day running of the proposed Agency,

• the staff of the proposed Agency should be employees of the Agency and not the Northern Ireland Civil Service,

• the proposed Agency should issue an annual report on the conduct of its statutory duties, and

• the proposed Agency should be located in an iconic historical building or a state-of-the-art new building refl ecting best practices in sustainable building.

Findings & Analysis

Principal models considered

5.28 Three models for the structure of the proposed Agency were suggested to the Review: a non-departmental public body, a non-ministerial government department and, in light of the Review of Public Administration, a transfer to local government. We were not convinced by the arguments for either of the latter two options. The need to separate policy making from regulation ruled out a non-ministerial department and the high cost and relative shortage of the necessary regulatory skills to provide a full spectrum service militated against dispersion to local government.


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Non-departmental public body is recommended as optimal model for regulator

5.29 The Review concluded that a non-departmental public body (NDPB) provided the best model for delivering modern environmental regulation in Northern Ireland. It will provide increased public confi dence and transparency in the conduct of environmental regulation. It will give the proposed Agency suffi cient freedom to provide effective public leadership on the environment. By separating it from the policy making Department, it allows for greater clarity and focus of mission for the Board and staff. It is a model that has also been successfully used throughout the rest of the UK and Ireland.

Board should comprise of representatives of wide range of interests and expertise.

5.30 The main elements of the structure of the proposed Agency fall out naturally from the choice of an NDPB as its appropriate institutional form. The Board of the proposed Agency should be representative of the wide range of interests and expertise engaged in environmental regulation in Northern Ireland, although it should be made clear that Board members serve as independent individuals and not as representatives of those interests. The Board should consist of not more than 12 members. It is particularly important that the Chair be a person that commands the widest possible confi dence among the interested parties.

Board constitutes the Agency and appoints the Chief Executive

5.31 The Minister of the Environment should appoint the Board of the proposed EPA. Legally this Board will constitute the Agency and will be directly accountable to the NI Executive through the Minister of the Environment for all aspects of the organisation and its performance. The Board should delegate the day-to-day running of the proposed Agency to a Chief Executive. All appointments should be made in accordance with the principles and procedures outlined in the Code of Practice for Ministerial Appointments to Public Bodies, published by the Offi ce of the Commissioner for Public Appointments for Northern Ireland. Care should be taken to ensure that the independence of the proposed Agency is not compromised by the inappropriate use of shared services with the sponsoring department.


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Financial Resources 5.32 The Review discussed the issue of the proposed Agency’s resourcing at some length for a number of reasons. The machinery of environmental governance in Northern Ireland is relatively under-resourced despite recent increases to cope with the threat of EU infraction proceedings. Furthermore, a number of contributors to the Review were concerned that the creation of an independent Environmental Protection Agency might lead to large and unwarranted increases in cost recovery charges. The Review understood and shared this concern. Finally, as has been explained above, it is clear that the increasing pressures on the environment, and the policy response to them, are going to place additional burdens on the environmental regulator. Failure to resource the proposed Agency adequately will inevitably lead to further degradation of a valuable social and economic asset and increase the risk of extremely costly infraction fi nes from the EU.

A broad range of functions cannot be revenue producing.

5.33 It is now widely accepted that environmental regulators should generate a proportion of their income by charging fees for licensing and enforcement functions. However, these should not be used as a substitute for core funding. Furthermore, it must be remembered that these activities only account for a proportion of the proposed Agency’s duties. All environmental regulators, including the proposed Agency, must also monitor the environment, carry out and keep apprised of complex research, report on the state of the environment and provide detailed technical advice to government, business and the public and must conduct a wide range of communications activities. They must also be capable of undertaking extensive investigations into possible breaches of environmental law and mounting any subsequent legal actions where appropriate.

Relative balance of revenue producing functions and grant-in-aid

5.34 Recent analyses of the use of administrative penalties suggest that funds arising from the imposition of fi nes should not be directly returned to a regulatory agency. The Review concurred with this view. Neighbouring jurisdictions with well-established systems of cost recovery require grant-in-aid funding from central government in proportions ranging from 50-70%. Having considered these issues the Review concluded that the proposed Agency should be funded primarily with a grant-in-aid similar in proportion to that current in other jurisdictions.18

18 Although the Review was tasked by its terms of reference with developing a business case for any proposed changes it has not proved possible in the time available to do so clearly, this would be a early requirement in preparing a response to this report.


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Iconic building 5.35 To refl ect its environmental leadership role in the community and to give expression to its core values, the proposed Agency headquarters should be a strong physical representation of the face and purpose of the Agency. For this reason it should be housed in either an iconic refurbished old building or a new purpose built and sustainably developed building.

Restoring public confi dence in the environmental regulator

5.36 As we have noted above, the Review had neither the time nor the resources to produce a fully developed business case for the proposed Agency. We have therefore not carried out a detailed analysis of how it should operate. Nevertheless, our wide-ranging discussions with both current regulators and the regulated lead us to defi ne some operational characteristics the proposed Agency should aim to achieve if it is to fully restore public confi dence in environmental regulation in Northern Ireland.

Operational characteristics of the proposed Agency

5.37 The proposed Agency should endeavour to rapidly acquire, and be recognised as having acquired, the following characteristics:

• it should be a modern regulator adopting a risk based approach to enforcement capable of offering preventative advice as required but also fully empowered and resourced to prosecute when appropriate,

• It should be a consistent prosecutor of environmental crimes, creating an integrated Enforcement Offi ce capable of raising the standard of legal advocacy and supporting consistent application of the polluter pays principle. The Agency should have independent powers of prosecution and suffi cient dedicated legal staff to discharge its duties.

• it should be an effi cient operator capable of discharging its duties, including those of statutory consultee, in timely manner, transparent and consistent in its decision making and in constant communication with those subject to regulation,

• It should be an infl uential policy advisor to DOE. This policy advice should be given according to terms embodied in a published Memorandum of Understanding agreed between the two parties, and

• it should become a champion for the environment, monitoring and reporting on the state of the environment, communicating effectively within and beyond government and playing a leading role in informed public debate of environmental issues.


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Modern standards of corporate governance

5.38 The proposed Agency should adopt modern standards of corporate governance as recommended by the UK Better Regulation Task Force and which have been adopted by bodies such as the Food Standards Agency and this Review. This entails: -

• regular Board meetings conducted in public with only a defi ned set of matters, for example personnel or prosecution issues, conducted in private session,

• agendas and papers available to the public in advance,

• active encouragement of public attendance, and

• the web-casting of Board proceedings with some possibility for an interactive session wherever technically possible.


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6.1 Planning policy and regulation is universally recognised as a key instrument of modern environmental governance. It is one of the most powerful tools available for preventing environmental harm. In considering the role of planning in environmental governance in Northern Ireland the Review took into account the Review of Public Administration’s recommendations on the future arrangements for the Group of responsibility between central and local government.

Planning Policy

RECOMMENDATION

Responsibility for strategic planning policy should remain with central government and should be brigaded with environmental policy within the Department of the Environment.

Adequate resources should be provided to local government for it to play its full part in the planning system in Northern Ireland.

Findings & Analysis

Environment and Planning policy should not be developed separately.

6.2 Environment and planning policies are inextricably linked and should not be developed separately. This reality is widely acknowledged and was powerfully affi rmed by the seminal report by the Royal Commission on Environmental Pollution (RCEP) on Environmental Planning. Integrated environmental and planning policy development is a foundation stone upon which the transition to sustainable development will be built.

CHAPTER 6Terrestrial and Marine Planning


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All Planning Policy should be the responsibility of the Department of the Environment

6.3 The Review is aware of the reasoning which led to the current fragmentation of planning policy responsibility between a number of government departments. Many of the written and oral submissions to the Review revealed widespread dissatisfaction with the split of planning and environmental policy between DOE and DRD in particular. Furthermore, discussion with offi cials in the Departments of Environment, Food and Rural Affairs and Communities and Local Government during the Review’s visit to London made clear that the separation of environment and planning policy responsibilities in England revealed similar problems in England and Wales. In the light of these submissions and discussions we concluded the present arrangements were a considerable barrier to effective environmental governance in Northern Ireland. Responsibility for strategic planning policy, which should remain a function of central government, should be transferred to the Department of the Environment.

Some progress has already been made to amalgamate planning and environmental policy.

6.4 We note that a step in this direction has already been taken by the transfer of some planning personnel to the Environmental Policy Group of the Department of the Environment which has now been renamed the Planning and Environmental Policy Group. We commend this move and recommend that it now be taken to completion by the full transfer of responsibilities and resources.

Concern about the resource capacity of local government to deliver planning functions

6.5 A number of the bodies with which the Review met expressed concern about the transfer of planning functions to local government. In particular, there was anxiety about whether there would be suffi cient capacity for them to discharge this function effectively.

Planning Appeals Commission (PAC)

6.6 The Review was concerned by evidence that the Planning Appeals Commission (PAC) in Northern Ireland has embraced a signifi cant role in the development of planning policy. A number of factors appear to have led to this situation – in particular, ambiguities caused by poorly drafted or outmoded planning policy and legislation. The solution to this imbalance is not to return the PAC to central government. However, the development of planning policy properly belongs to democratically elected Ministers. It is essential that steps are taken to address the perceived dilution of Ministerial control in this key context of environmental governance.


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Completion of the Area Plan suite for NI

RECOMMENDATION

Government must allocate suffi cient additional resources to expedite completion of the suite of Area Plans for Northern Ireland.

Findings & Analysis

Area Plan suite is signifi cantly out dated

6.7 A plan-led system of town and country planning is essential to modern environmental governance. Although government in Northern Ireland has embraced this objective, progress in preparing the new Area Plans has been excessively slow. As a result, the intensifying pressure for economic and physical development is occurring within a planning framework, signifi cant portions of which remain out of date.

Local Government needs signifi cant support in updating the Area Plan suite

6.8 It is clear that even the centralised planning system is unable to cope with the dual pressures of updating Northern Ireland’s Area Plans and the increased volume of applications for development consent. While the transfer of development control functions to local government is welcome, unless signifi cant further resources are allocated to enable the expedited completion of the Area Plans suite, there is a very serious risk of irreversible environmental loss. The current hiatus is entirely inconsistent with the government’s stated commitment to sustainable development.


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Local Government capacity to deliver development consent

RECOMMENDATION

Local Government must be given the resources necessary to process applications for development consent within the current statutory time limits.

Findings & Analysis

DOE cannot deliver development consent within statutory time limits

6.9 An effi cient planning system is central to good environmental governance and a functioning economy. At present, DOE is unable to process the volume of applications for development consent received within the statutory time scales. This has led to a signifi cant increase in the rate of appeals to the PAC on the grounds of non-determination. Delay by DOE’s Planning Service is effectively encouraging a damaging ‘gaming’ of the regulatory system whereby the Planning Appeals Commission is being forced to assume the role of an alternative Planning Authority.

More resources for local government or changes to statutory time limits

6.10 If further resources are not allocated, government must make the politically unpalatable decision to extend the statutory time scales for decisions on planning applications. If neither step is taken, local government will be forced to assume responsibility for a fundamentally dysfunctional system of development control. The democratisation of the planning system intended by the Review of Public Administration will be signifi cantly undermined as the PAC assumes an ever greater role in deciding applications for development consent; while local government will be wrongly tarnished as a barrier to economic development.


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Powers for the proposed EPA to challenge planning decisions

RECOMMENDATION

The proposed EPA should be given statutory powers to challenge acts or omissions by local government in relation to the discharge of their planning powers. These challenges should be taken in the public interest.

Findings & Analysis

Democratic legitimacy of planning system has been signifi cantly compromised

6.11 Strong democratic accountability and effective public participation are fundamental to the legitimacy of a modern system of development control. The combination of direct rule and a highly centralised system of development control has signifi cantly compromised the democratic legitimacy of this process for decades in Northern Ireland. Even the limited democratic control provided through consultation between the Planning Service and local council planning committees concerning individual consents is now routinely circumvented through appeals to the PAC on the grounds of non-determination. The profound sense of public marginalisation and dissatisfaction with this situation was most recently and vividly captured by the National Trust’s Planning Commission report in 200419.

Local Government inheriting a dysfunctional system of planning

6.12 The planned transfer of development control powers to local government will undoubtedly make a signifi cant contribution toward alleviation of the democratic vacuum in planning. However, local government is inheriting a system of development consent characterised by public disaffection and a serious loss of confi dence. The Review considers that investment to enhance the effi ciency of the NI system of development control is essential to good governance. However, the transition towards modern standards of environmental governance will depend on government’s willingness to address the distinctive legacy of public marginalisation from development control decisions.

19 The National Trust (2004) A Sense of Place:Planning for the Future in Northern Ireland Summary and Recommendations of the Northern Ireland Planning Commission March 2004, National Trust


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Strong argument for the introduction of third party rights of appeal

6.13 During its consideration of the Planning (Amendment) Bill, 2001 the Northern Ireland Assembly indicated strong support for the introduction of third party rights of appeal. The direct rule administration ultimately rejected this proposal. While the Review recognises the importance of an effi cient planning service, the effectiveness of this crucial element of environmental governance depends equally on its perceived legitimacy and credibility. Decades of democratic defi cit have generated a distinctive legacy of public marginalisation in development control. Consequently, while the Review is sensitive to the escalating regional pressure for development, it considers that there is a strong argument for the re-examination of the merits of introducing third party rights of appeal.

The proposed EPA should be given powers to challenge development consents

6.14 A viable fi rst step towards re-establishing public confi dence in the planning system is to confer the proposed EPA with statutory powers to challenge acts or omissions by local government concerning the exercise of its planning powers – including development consent decisions. These challenges should be taken to the new Environmental Tribunal20 for Northern Ireland in the public interest.

Such challenges should be taken in the public interest

6.15 Concentrating the third party challenge function in the proposed EPA addresses concerns as to the potential delay caused by the conferral of third party rights to the public in general. It would allow an expert body tasked with championing the natural and built environment to take strategic challenges in the public interest.

20 See recommendation, analysis and fi ndings relating to a proposed Environmental Tribunal in paragraphs 6.16 - 6.18 and Chapter 9, paragraphs 9.17 - 9.20


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An Environmental Tribunal for NI

RECOMMENDATION

The Planning and Water Appeals Commissions should be restructured and developed to create a new Environmental Tribunal for Northern Ireland

Findings & Analysis

Environmental Tribunals

6.16 As part of the wider national and EU debate on environmental justice, there has been considerable recent discussion of the potential role of environmental courts and tribunals. It is now widely acknowledged that the creation of environmental tribunals would assist the UK in meeting its international law commitments on access to environmental justice under the Aarhus Convention and would increase public confi dence in the operation of environmental regulation in the UK.

Reducing the burden on judicial bodies and increasing the range and pace of regulation

6.17 It is also argued that specialised tribunals would reduce the burden on judicial bodies that are less suited to handling these types of appeals, and would be easier to use for individuals and businesses. The value of specialised tribunals in this sphere will also increase as the range and pace of environmental regulation expands to include End of Life Vehicles, the requirements of the EU’s Environmental Liability Directive, greenhouse gas emissions trading and agricultural waste.

NI could assume an innovative leadership role

6.18 This is an area of environmental governance in which Northern Ireland could assume an innovative leadership role, while also addressing the loss of public confi dence that exists in its structures of planning and environmental regulation. Unlike Great Britain, Northern Ireland already has the foundations of an environmental tribunal in the forms of the Planning and Water Appeals Commissions. It is recommended that these Commissions be merged and developed into a specialised tribunal tasked with adjudicating all regulatory appeals on planning and the environment. This issue is dealt with in more detail in Chapter 9.


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Proposed EPA as a statutory consultee of the Planning process.

RECOMMENDATION

The proposed EPA should be a statutory consultee to the planning authority.

Development consent should not be granted unless the planning authority is in receipt of an opinion from the proposed EPA or the EPA has waived its obligation to comment.

Findings & Analysis

The proposed EPA should be a Non Departmental Public Body

6.19 Because of its status as an Executive Agency of the Department of the Environment, EHS is not a statutory consultee to the Planning Service. EHS is consulted on some planning applications if the planning authority considers that proposed development is likely to have an adverse environmental impact. There is no public record of the judgements made in this context or the development thresholds considered likely to cause adverse environmental impacts. The creation of the proposed Agency as a Non Departmental Public Body will give it the necessary independence from central government to act effectively as a statutory consultee and it should be so designated.

Development thresholds

6.20 The Review recognises that a balance must be struck between preventing environmental harm and regulatory effi ciency. For this reason, the proposed EPA and the new planning authorities should agree development thresholds below which the proposed Agency’s right to be consulted can be waived. This waiver should ensure that the proposed Agency is not subjected to excessive operational burdens but also enables it to act where there are concerns as to cumulative impacts of sub-threshold development. These thresholds should be published and the exercise of waivers in this context should be placed on a public record.


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Planning Enforcement

RECOMMENDATION

The planning enforcement function should be retained within central government on the transfer of development control to local government.

Findings & Analysis

Risk of further weakening already inadequate enforcement resources

6.21 Persistent and serious concerns over the enforcement of planning legislation were expressed throughout the Review. Given the importance of development controls to effective environmental governance, proper regard for the rule of planning law is essential. The Review has serious concerns about the transfer of this key function to local government at a time when it is undergoing signifi cant structural change and a major expansion of its powers. There is a considerable risk of a further weakening of the already inadequate enforcement of planning conditions if scarce enforcement resources were to be fragmented across the seven new Councils.

Retain planning enforcement as a centralised service in government for 5 years

6.22 We concluded that planning enforcement should not be transferred to local government for fi ve years to allow the new structures and powers time to embed. Planning enforcement should, in the interim, remain as a centralised service for NI in the interests of consistency and the concentration of scarce skills. A review of the operation of the planning enforcement function should then take place.


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Marine Planning

RECOMMENDATION

Northern Ireland should delay decision-making concerning the proposals set out in the recent Marine White Paper until it has determined the region’s priorities concerning its marine environment.

Northern Ireland’s Marine Management Organisation (MMO) should not be sponsored by Defra and consideration should be given to the creation of an all-island or ‘Celtic Seas’ MMO

Findings & Analysis

The Assembly and Executive should determine NI’s marine environment priorities

6.23 It is essential that the priorities for Northern Ireland’s marine waters are debated and directed by the government in Northern Ireland. Failure to consider regional priorities in this context could result in licenses being granted for damaging activities in Northern Ireland waters that would not be permitted in other parts of UK waters, thereby weakening the regional natural resource base.

Reservations about the sponsorship of an MMO by Defra

6.24 The Review supports the creation of a regional Marine Management Organisation (MMO), and the conferral of responsibility for marine Area Plans to that body. However, the Review has strong reservations about the suitability of Northern Ireland’s MMO being sponsored by Defra. While this option may have been attractive to the direct rule administration for reasons of economies of scale, there are inherent governance risks in linking to England’s structures in the present context.

NI should determine if there are more benefi cial alliances on marine environment

6.25 The Review is concerned that NI’s interest would not be well represented in an MMO that is dominated by English marine priorities. This imbalance risks NI waters becoming a ‘sink’ for damaging development that would not be permitted in other UK and Irish waters. NI’s marine interests are more likely to be aligned with Scotland and Ireland and therefore consideration should be given to the creation of an all-island Marine Organisation or a ‘Celtic Seas’ approach which would include Scotland’s waters.


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Accountability for desired environmental outcomes

7.1 The legitimacy, integrity and effi cacy of any system of environmental governance rest crucially on the existence of appropriate accountability mechanisms. Mechanisms for accountability focus on two key issues: accountability for the proper use of public funds and, as importantly, accountability for the achievement of the desired environmental outcomes.

Minimal effective scrutiny during Direct Rule

7.2 Direct Rule inevitably undermined public accountability in Northern Ireland. It fell predominantly to Westminster bodies such as the Commons Select Committee on the Environment; the Public Accounts Committee, and the Northern Ireland Affairs Select Committee to hold the Direct Rule Government in Northern Ireland accountable for the state of the environment. Only the NI Audit Offi ce and, more latterly, the Criminal Justice Inspectorate played any direct part in accountability. For the most part this led to remote and intermittent scrutiny of the performance of those bodies responsible for environmental governance in Northern Ireland. The honourable exception was the NI Audit Offi ce, which, during the past decade, has published regular and penetrating analyses of specifi c aspects of the environmental regulator’s performance.

Absence of direct political accountability

7.3 However, the responsiveness of government to such recommendations as have been made was undermined by the absence of direct political accountability to the electorate. This lack of direct political accountability was compounded by the absence of regular and consistent data series of the state of the environment and any clear statement of the Government’s environmental policy priorities.

Responsibility for environmental governance lies with the whole government.

7.4 The state of the environment in Northern Ireland is a consequence of the actions of the whole Government, not just the Department of the Environment. The machinery for accountability essential for modern good governance of the environment must therefore reach beyond looking simply at the performance of those public bodies with direct responsibilities for environmental management to incorporate scrutiny of the discharge of other government departments and agencies of their environmental responsibilities.

CHAPTER 7Strengthening Accountability


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Assembly Environmental Audit Committee

RECOMMENDATION

The Northern Ireland Assembly should create an Environmental Audit Committee with statutory responsibility for auditing the environmental performance of Government in Northern Ireland. It should be adequately resourced to discharge an audit function effectively.


Assembly’s Environment Committee scrutinises DOE’s policy and legislation

7.5 The re-establishment of the Assembly brings with it the re-establishment of its Environment Committee. The powers of this Committee are appropriately wide ranging but, as a departmental-following committee its remit is to cover the policies, legislation and performance of the DOE and the non-departmental public bodies it sponsors – such as the proposed Environmental Protection Agency.

The EAC would scrutinise activities of government as a whole

7.6 It DOEs not however have the powers to scrutinise the environmental consequences of the activities of other departments. As was also pointed out by Richard Macrory in his report on environmental governance in Northern Ireland21, this inhibits investigation of issues that do not fall within conventional departmental lines and could otherwise escape effective accountability. Examples cited by Professor Macrory included oversight of the Government’s sustainable development strategy and the Department of Finance and Personnel’s responsibilities for procurement.

21 Transparency and Trust: Reshaping Environmental Governance in Northern Ireland


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The experience of the Westminster EAC

7.7 The Environmental Audit Committee has discharged this function in the Westminster Parliament with some success. Initially there was concern that there might be duplication and confusion of role with the Environment and Rural Affairs Committee. In practice, these fears have proved unfounded and environmental governance in England and Wales has been improved by the ability of the two committees to scrutinise environmental performance across government as a whole.

Need for dedicated environmental audit staff

7.8 The Review met the Chairman and staff of the Environmental Audit Committee during its visit to London. The greatest limitation on the effectiveness of the Committee was the lack of a dedicated staff with audit capabilities. This meant that it had done less to evaluate the degree to which policy intent had been translated into improved environmental outcomes than it would have wished. The Review concluded that this was experience from which Northern Ireland could learn directly. We also felt there would be value in the members and staff of the Committee establishing good connections with similar Parliamentary bodies elsewhere.


77

Capacity of the NI Audit Offi ce

RECOMMENDATION

The capacity of the Northern Ireland Audit Offi ce to investigate the effectiveness and effi ciency of departments and public bodies in the discharge of their environmental functions should be strengthened.

The Northern Ireland Audit Offi ce should publish a report on the value for money of the totality of public expenditure on the environment in Northern Ireland


Complementary responsibilities for scrutiny

7.9 The Northern Ireland Audit Offi ce carries out a distinct but complementary scrutiny role to those delivered by the Assembly Committees. Whereas the Assembly processes focus on political scrutiny of policy and legislation, the Audit Offi ce provides independent but offi cial scrutiny of fi nancial expenditure and value for money.

NIAO should broaden its environmental focus

7.10 During the past decade the Audit Offi ce has published three valuable and incisive analyses of the performance of EHS in relation to water quality control, the designation and protection of Areas of Special Scientifi c Interest (ASSI) and most recently, waste management. The Review concluded that it would be benefi cial to the environmental governance of Northern Ireland if such useful analyses of the performance of a wider range of public bodies than just EHS could be carried out. To that end, the capacity of the Northern Ireland Audit Offi ce to carry out such audits should be increased. The Review also felt there would be value in a more transparent process for the selection of issues for audit.

Levels of resourcing across the whole environmental governance regime

7.11 We were surprised by the diffi culty we experienced in determining an overall fi gure for public expenditure on the environment. The Review’s own investigation arrived at a fi gure of £353m for 2005/06 but we were not confi dent that this was fully accurate. Clearly, if you do not know what the overall level of pubic expenditure is on the environment you cannot easily determine either its adequacy or value for money. We concluded that a fully accurate assessment should be made of the level of public expenditure and that the Audit Offi ce should publish a report on its effectiveness22.

22 The Review gratefully acknowledges the assistance given by the Department of Finance and Personnel, Strategic Policy Group.


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Good environmental governance requires coordination across a range of governance structures

8.1 The Review set out, in paragraph 3.7, the hallmarks of good environmental governance. As well as focussed and adequately resourced policy making and regulatory machinery in central and local government; good environmental governance depends on the active cooperation of a great many organisations and individuals within the wider community and, uniquely within the United Kingdom, in the case of Northern Ireland, on successful cooperation across an international boundary.

This is the responsibility of NI government as a whole

8.2 A central theme of this Review is that achieving a high quality environment that underpins both economic prosperity and personal wellbeing is a responsibility of government as a whole, not simply of those institutions within government with specifi c environmental duties. In this section of our report we address some of the cross-cutting issues that will help to build the network of broader relationships necessary for good environmental governance

CHAPTER 8Cross-cutting elements of Environmental Governance


79

A ‘State of the Environment’ Report for Northern Ireland

RECOMMENDATION

The Government of Northern Ireland should publish a regular report on the state of the environment at intervals of no more than fi ve years. It should be the responsibility of the proposed EPA to prepare the report.


Government in NI needs consistently high quality data to effectively monitor the state of the environment

8.3 Accurate, rigorous and timely data as to the state of the environment is essential to good environmental governance. Unlike the rest of the UK and Ireland, a state of the environment report has never been produced for Northern Ireland. Without such a report it is diffi cult to identify either improvement or decline in key environmental indicators and thus to properly determine priorities. This inhibits the making of informed judgements about the performance of those public bodies charged with environmental duties by either the public or the Assembly.

It will assist in focussing policy initiatives and regulatory effort

8.4 The publication of such a report is also an essential precursor to fully engaging the individuals, voluntary organisations, businesses and communities playing an active part in the management of the environment. It will also assist the proposed EPA and DOE to focus policy initiatives more accurately and target regulatory effort more effectively thus reducing the burden on the regulated.

Information must be accessible to all

8.5 The report should be published in a format that is accessible to non-technical audiences. It should synthesise a very wide range of information on environmental features such as air, water and biodiversity and on the factors affecting their quality. Whilst being accessible to general audiences, it should be possible for expert third parties to ascertain the origins and methodology underlying the data gathering and analysis process and assess the scientifi c rigor of the report as a whole.

Benefi ts in synergy with neighbouring jurisdiction

8.6 The scope and frequency of the Northern Ireland report should be aligned as far as possible with that of its counterpart in Ireland.


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A Natural Resources Institute for Northern Ireland

RECOMMENDATION

The Agri-Food & Biosciences Institute should be developed and re-oriented to become a Natural Resources Institute for Northern Ireland.


Many different kinds of research required by policymakers and regulators

8.7 The processes of environmental policy making and regulation are very data intensive and the quality of policy design and delivery is highly dependent on the quality of the information on which is it based. Environmental policy makers and regulators draw on several types of data, ranging from routine monitoring of environmental quality, to more operational analyses of exposure pathways or cross-media relationships and on to the deeper understanding of whole systems requiring long term primary research.

All knowledge communities have a role to play

8.8 The proposed EPA should remain the source of routine scientifi c monitoring and assessment through its internal laboratories and staff. National and international universities are the traditional source of leading edge and experimental research. Indeed the increasing emphasis placed by UK research councils on the ‘user relevance’ of funded research will stimulate much greater alignment between government and university research priorities.

Despite its agri-focused title, AFBI plays a key role in environmental science in Northern Ireland

8.9 The Agri-Food & Biosciences Institute (AFBI) generates the more operationally focused research, which is essential to environmental policy and regulatory processes. AFBI was recently created as an NDPB of the Department of Agriculture and Rural Development. Despite this sponsorship relationship, AFBI increasingly carries out a wide range of broader environmental research used and commissioned by other parts of government, particularly EHS.


81

Review recognises and validates these shifts in priority by proposing the widening of the remit of AFBI

8.10 Environmental considerations have moved into the mainstream of agricultural policy design and implementation. Similarly, the profi le and pace of policy making on the environment has increased across government. As pressures continue to increase on the natural resource base of the economy, the importance of being able to maintain the productivity of that base grows. The Review therefore concluded that there was a strong case for recognising and validating these shifts in priority by widening the remit of AFBI so that it was able to provide operational research on all matters affecting the natural resource base of the economy and re-naming it the Natural Resource Institute for Northern Ireland.


82

Advisory Councils

RECOMMENDATION

The Council for Nature Conservation and the Countryside, the Historic Buildings Council, the Historic Monuments Councils and the Drainage Council should be combined into a single Advisory Council to the Department of the Environment


The changing role of advisory councils in Northern Ireland

8.11 There are currently four statutory advisory councils providing independent advice to Government in Northern Ireland on the environment. The three DOE councils (namely, the Council for Nature Conservation and the Countryside, the Historic Buildings Council and the Historic Monuments Council) were established to compensate for the absence of an independent voice on the environment. The Review was impressed by the expertise, dedication and generosity of those who volunteered time and effort to participate in the work of the Advisory Councils. We noted that the Direct Rule administration had proposed the abolition of the Advisory Councils and considered how best the expertise and commitment might be more effectively engaged within the new arrangements for environmental governance in Northern Ireland.

Single Council with responsibilities for the human, natural, cultural and built aspects of the environment

8.12 We concluded that there would be considerable benefi t in consolidating the Councils into a single body able to provide the Department of the Environment with informed advice across the full range of its environmental responsibilities. In particular, we felt such an Advisory Council would be well placed to advise the Department on how best to achieve effective policy synergies between its responsibilities for the human, natural, cultural and built aspects of the environment. Furthermore, it would add considerably to the Department’s ability to keep up to date with international developments on environmental policy and emerging trends. It could also play a helpful role in assisting the Department with its outreach to the wider community.


83

Community Planning and the Environment

RECOMMENDATION

The potential for the proposed system of Community Planning in Northern Ireland to build more active citizen participation in environmental management should be investigated.


Public Participation enhances the credibility and legitimacy of environmental governance

8.13 Public participation in environmental governance is widely considered to enhance the legitimacy, credibility and quality of environmental decision making by government. This is especially true at local level where the opportunities for effective participation are greatest.

Community Planning concept enables public participation

8.14 The Review was impressed by the concept of Community Planning whilst recognising that it was still at an early stage of development. We considered that this presented Northern Ireland with an opportunity to develop an innovative approach to environmental governance by making the improvement of environmental quality a key objective of the Community Planning process.


84

Environmental contracts

8.15 In order to strengthen the integration of environmental issues into Community Planning, the Review team commends the use of environmental ‘contracts’. The formation of environmental contracts or ‘compacts’ between central and local government has recently been proposed by the Royal Commission on Environmental Pollution23 as a mechanism for:

• strengthening the important strategic relationship between both tiers of government on environmental issues,

• stimulating the emergence of local leadership on the environment through allowing them greater fl exibility to experiment and reallocate resources to the environment, in exchange for a more ambitious approach to environmental issues,

• clarifying the respective roles of local and central government on the environment, and

• Building capacity for environmental citizenship by involving private and voluntary sector and citizens in the design and implementation of these compacts.

Further analysis recommended

8.16 The Review concluded that the Department of the Environment should carry out an analysis of the contribution that Community Planning and environmental contracts could play in developing a partnership approach and wider public participation in environmental decision making in Northern Ireland.

23 RCEP, The Urban Environment (2007), Cm 7009 at para 6.26


85

An all-island approach

RECOMMENDATION

Appropriate measures should be taken to restore and enhance an all-island approach to environmental governance at policy and operational levels.


Strong environmental, legal and political drivers for an all-island approach

8.17 There are strong environmental, legal and political drivers for an all-island approach to environmental governance. The factors that impact on environmental quality do not respect political boundaries. EU environmental law and policy increasingly requires Member States to adopt a transboundary approach to the implementation of key measures and supports cross border participatory rights.

Forging stronger inter-regional negotiating alliances

8.18 At a political level, Northern Ireland’s ability to successfully infl uence EU policy and derogation negotiations in Europe depends not only on engagement with Whitehall, but also the forging of strong inter-regional alliances, most obviously with its immediate environmental neighbour. It was clear that during the recent negotiations surrounding the implementation of the Nitrates Directive, the EU Commission communicated with Northern Ireland and Ireland as an environmental block, to Northern Ireland’s advantage.

The North South Ministerial Council (NSMC)

8.19 Strand Two of the 1998 Agreement, which identifi es the environment amongst the areas for enhanced co-operation North and South, creates a mechanism through which the necessary policy and operational collaboration can be formalised and developed.


86

Implementation Bodies of the NSMC

8.20 Although the momentum has been lost during the suspension of devolution, offi cials reported that the enhanced co-operation on environmental policy and operational matters stimulated by the NSMC was benefi cial. The Review anticipates that the momentum of collaboration will increase with the restoration of devolution. However, the Review recommends that the two governments give further consideration to the remits of the environmental implementation bodies. Waterways Ireland, while having environmental responsibilities for the aquatic environment in the Erne/Shannon waterways, is more accurately an amenities body, supporting the tourism potential of that waterways asset. The Review DOEs not propose any change to its structure or remit.

Foyle, Carlingford and Irish Lights Commission

8.21 The role of the second environmental implementation body, Foyle, Carlingford and Irish Lights Commission (FCILC)24

has already been addressed by the Review25. While the Review views cross border collaboration in the process of environmental regulation as important, it has concluded that the current role and remit of the Lough’s Agency excessively duplicates and confuses the process of regulation in NI. For these reasons, the Review recommends the transfer of the Loughs Agency functions to the EPA. The Review is alert to the fact that removal of the Loughs Agency functions could comprise the viability of the FCILC.

An alternative body should be created

8.22 In principle, the Review is persuaded of the value of cross-border implementation bodies to delivering sound environmental governance. We recommend that an alternative implementation body be created to address issues concerning the all-island environment. The specifi c remit of such a body would be the subject of political agreement between the two governments on the joint environmental priorities for the island of Ireland.

24 Foyle, Carlingford and Irish Lights Commission is an implementation body of the North South Ministerial Council and consists of two Agencies i.e. The Loughs Agency and Lights Agency: The Loughs Agency is responsible for the management and development of the Folye estuary and Carlingford Lough. It was intended that the Lights Agency, when established, would replace the Commissioners of Irish Lights as the General Lighthouse Authority for Ireland. However, given the complexities that have arisen in terms of pursuing such a transfer of functions, the matter is under review at present. Comments relating to the Loughs Agency and FCILC are therefore referring to the same body.

25 See paragraph 5.25,fragmentation of the responsibilities for the management of the water environment.


87

The British Irish Council (BIC)

8.23 In addition to Strand 2 of the Agreement which facilitates enhanced co-operation on the environment North and South, Strand 3 creates a forum for East-West political dialogue across the British Isles through the British-Irish Council (BIC). Strategic environmental issues are an important sectoral interest for BIC. To maximise its potential infl uence in European negotiations, Northern Ireland should seek to forge strategic negotiating coalitions with Ireland on a wide range of European environmental issues.


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Distributing the costs and benefi ts of economic development equally across society

9.1 A sound system of environmental governance should deliver not only the high quality environmental outcomes necessary to underpin economic and social wellbeing, but also ensure that the costs, risks and benefi ts of economic development are distributed equally across society. It is widely recognised that there are ‘winners and ‘losers’ in the process of environmental decision-making. Signifi cant justice issues arise from decision-making concerning the environment; for example:

• the granting of licenses and consents for polluting processes,

• which instances of environmental crimes should be prosecuted,

• the setting of penalties for those who cause environmental harm,

• the cost of energy and water,

• planning policies governing the development of the countryside, and

• where best to spend public money on fl ood defences to protect private property and businesses against rising sea levels.

Integrating environmental justice into environmental policy and regulatory processes is a key priority at UK and EU levels

9.2 The importance of environmental justice in the process of environmental governance is explicitly recognised at a policy level by the EU and UK Sustainable Development strategies and in law by key EU and international instruments, particularly, the UN Rio Declaration and the Aarhus Convention. Integrating environmental justice into policy and regulatory processes concerning the environment is now a key priority at UK Government and EU levels and is closely allied to the promotion of sustainable development.

CHAPTER 9Environmental Justice


89

Efforts are already being made

9.3 Efforts to integrate environmental justice have thus far concentrated on ensuring effective public participation in decision-making on the environment; robust public rights of access to environmental information; better implementation of the polluter pays principle and strengthening access to environmental justice to enable decisions to be challenged by the public and their representatives without excessive cost or delay.

More systemic solutions are required

9.4 However, it is also accepted that more systemic solutions are required beyond the conferral of procedural rights if government is to effectively anticipate and prevent injustice caused by the differential environmental impacts generated by economic development. In effect, a coherent screening of the policy ‘life cycle’, from inception through to its administration and enforcement through regulatory process, is also considered to be essential to ensuring environmental justice.

Embedding environmental justice into governance in NI should be a key priority for government.

9.5 Embedding environmental justice into the environmental governance arrangements for Northern Ireland should be viewed as an important priority for the new government. This chapter sets out the Review’s recommendations concerning the key changes that should be made to better align the process of environmental governance in NI with the principle of environmental justice. These recommendations concern the operation of and decision-making by key regulators; the policy community and the judiciary, and seek to build capacity and support for environmental citizenship, which is essential to environmental justice.


90

NI Environmental Justice Strategy

RECOMMENDATION

The proposed EPA should publish an environmental justice strategy setting out how its operation and regulatory practices contribute to ensuring environmental justice in NI. This strategy should be reviewed every fi ve years.

The EPA should also publish an annual report concerning the implementation of the polluter pays principle in Northern Ireland.


Environmental policy and regulation can have differential impacts on communities

9.6 The process of environmental regulation can have signifi cantly differential impacts on individuals, communities and industries. This is particularly so, for example in the context of licensing polluting industries, and increasingly in relation to decisions concerning fl ood risk management. Differential impacts are likely to be heightened in post-confl ict Northern Ireland, with an economy comprised largely of small to medium sized enterprises (SMEs), and a society characterised by signifi cant social deprivation.

NI needs to take a strategic approach to the management of these impacts

9.7 The Review was impressed by the work being done by SEPA and the EA concerning the potential justice implications of regulatory processes. A separate analysis concerning distinctive regional conditions is required to enable the proposed EPA in Northern Ireland to develop an effective environmental justice strategy. As a minimum, this strategy should set out how environmental justice considerations will be refl ected in:

• arrangements for the provision of public access to environmental information held by the regulator,

• decision-making concerning applications for licenses and consents taking into account the risk of differential impacts on geographic areas and socio-economic communities, and

• enforcement strategies.


91

Polluter Pays Principle 9.8 The proposed EPA should also publish an annual report on the implementation of the polluter pays principle in Northern Ireland which:

• sets out the levels of fi nes imposed for different categories of crime across the various judicial tiers,

• ‘names and shames’ those convicted of environmental crime as is done by the Environment Agency in England and Wales,

• clarifi es the extent to which concepts of equality and justice have informed the proposed Agency’s enforcement decisions and decisions to use its third party right of challenge, and

• assesses the extent to which environmental regulation in NI compounds or reduces incentives to participate in legitimate or ‘black’ economies.


92

Professional development of the Judiciary

RECOMMENDATION

All tiers of the judiciary should take further professional development concerning the social, economic and environmental impacts of environmental crime in Northern Ireland.

Magistrates should be given new statutory powers to refer cases to the Crown court for hearing where appropriate.


Judiciary are central to implementing the polluter pays principle

9.9 Implementation of the polluter pays principle is a foundational principle of EU and UK environmental law. It is also central to ensuring environmental justice. The judiciary therefore play a central role in the process of environmental governance in Northern Ireland.

Concern about low penalties and weak imposition of reparation costs

9.10 Northern Ireland DOEs not have equivalent research to that undertaken in Great Britain concerning judicial patterns of sentencing for environmental crime. However, the information available in this regard has raised considerable concern in the media and scrutiny reports concerning low penalties, poor implementation of polluter pays principle and weak imposition of reparation costs.

Need for further professional development of the judiciary

9.11 The Review is aware that the Northern Ireland Judicial Studies Board has begun to respond to the need for judicial training in this area. Although there is evidence of increased penalties, including custodial sentences, it is apparent that there are also unacceptably low sentences and a high level of inconsistency.

Programme of development should be targeted at those hearing most environmental cases

9.12 The Review recommends that the Judicial Studies Board puts in place a comprehensive programme of professional development for the judiciary on environmental crime. This programme should be tailored to address the specifi c experiences and needs of judges at Magistrates and Crown court levels as the vast majority of cases are heard in these courts.


93

Magistrates should be able to refer cases to the Crown Court where necessary

9.13 The Review recommends that Magistrates should be given the statutory power to refer cases on to the Crown Court. Unlike the system in Great Britain, Magistrates in NI are not empowered to refer environmental cases to the Crown Court where they are found to have been inappropriately commenced at Magistrates level. As a result, the penalties for instances of serious environmental crime are restricted by the limits imposed on the Magistrates Court.


94

New Statutory Impact Assessment for Environmental Justice

RECOMMENDATION

Government should add environmental justice to the statutory impact assessments required during the development of new policies in Northern Ireland.


Comprehensive policy screening is required to embed environmental justice

9.14 It is widely accepted that a coherent screening of the policy ‘life cycle’ (from inception through to its administration and enforcement through regulatory process) is required in order to properly embed environmental justice considerations into the process of environmental governance.

NI’s transition from confl ict will raise signifi cant questions of environmental justice

9.15 Northern Ireland is a region with signifi cant problems of social deprivation. Its economy is also in a process of profound transition from the effects of confl ict and a national shift from a traditional emphasis on agriculture as a signifi cant element of GDP. Increasing EU pressure to expedite the implementation of current and new environmental standards; planning for climate change pressures; and implementation of the Northern Ireland sustainable development strategy will pose major environmental justice issues for Northern Ireland.

Application of NI’s experience in equality assessment could lead to its being recognised as a leader in the area of environmental justice

9.16 The Review is persuaded that coherent screening of proposed policies for environmental justice impacts will signifi cantly benefi t the transparency and credibility of the process of environmental governance in Northern Ireland. Government in Northern Ireland is already a UK leader in the development of statutory impact assessment processes in the context of equality. Environmental justice considerations are closely allied to issues of equality and also link to the process of rural proofi ng already required of the policy community in Northern Ireland. In addition to strengthening the process of regional environmental governance, Northern Ireland’s scale and its experience in policy impact assessment arguably create the conditions in which a unique policy expertise could be developed. Given that governments and societies throughout the world are similarly faced with the problem of how best to integrate environmental justice considerations into policy development, this expertise could be exported internationally.


95

Environmental Tribunal

RECOMMENDATION

Government should establish a specialised Environmental Tribunal for Northern Ireland.


Environmental Tribunal is an important vehicle for integrating environmental justice into the governance process

9.17 It is now widely acknowledged that specialised environmental tribunals should form part of the landscape of modern environmental governance in the UK. They are viewed as an important vehicle for integrating environmental justice into the governance process through:

• ensuring greater consistency in the hearing and sentencing of actions concerning environmental regulation,

• supporting a more active environmental citizenship through providing access to legal review mechanisms for individuals and NGOs that are fair, equitable, timely and not prohibitively expensive,

• increasing public confi dence in the operation of environmental regulation in the UK, and

• reducing the burden on judicial bodies less suited to handling these types of appeals, and would be easier to use for individuals and businesses.


96

Environmental tribunal would provide judicial specialism, consistency of, and ease of access to environmental justice

9.18 Extensive research has been conducted in Great Britain concerning the judicial experience in handling and sentencing environmental cases and problems of restrictive access to environmental justice for individuals and their representatives. Although equivalent research has not yet been undertaken in Northern Ireland, the listening phase of the Review process indicated that the environmental justice problems encountered in Great Britain also pertain to Northern Ireland. The Review is persuaded that signifi cant environmental justice gains could be made in Northern Ireland by creating a specialised environmental tribunal, in particular, judicial specialisation, consistency in the handling of environmental and planning cases, and consistency and ease of access to environmental justice for the public and NGOs. It is also possible that Northern Ireland’s role in developing models of restorative justice could inform the operation of this new tribunal.

Planning and Water Appeals should form the basis of a new environmental tribunal

9.19 Unlike Great Britain, Northern Ireland already has the foundations of an environmental tribunal in the forms of the Planning and Water Appeals Commissions. In effect, there are already the foundations of an environmental tribunal are already in place. It is recommended that these Commissions be merged and developed into a specialised environmental tribunal for Northern Ireland.

Further analysis is required

9.20 Although the reports published on this subject in Great Britain are instructive in considering this issue, the Review concluded that recommendations concerning the specifi c scope of the tribunal’s jurisdiction required more detailed empirical research analysing the distinctive regional arrangements for environmental and planning appeals; judicial experiences in handling and sentencing environmental cases; and the impacts of the criminal justice arrangements for Northern Ireland. The Review therefore urges Government to undertake this research in order to inform consideration of the optimum contribution to be made by a tribunal of this nature.


97

Page

ANNEX 1 Biographies of the panel members 98

ANNEX 2 A list of the organisations invited to meet with the Review

102

ANNEX 3 A list of organisations that met with the Review 104

ANNEX 4 A list of written submissions received from organisations and individuals

106

ANNEX 5 A list of organisations in other jurisdictions visited by the Review

108

ANNEX 6 Organisation chart of DOE, Planning and Environmental Policy Group

109

ANNEX 7 References 110

Annexes


98

Tom Burke CBE

Tom Burke is currently an Environmental Policy Adviser to Rio Tinto plc and a Visiting Professor at Imperial and University Colleges, London. He is a member of the London Sustainable Development Commission and serves on the boards or advisory boards of a number of environmental and other organisations. He is Chairman of the Editorial Board of ENDS magazine.

He was a member of the Council of English Nature, the statutory advisor to the British Government on biodiversity from 1999 - 2005. During 2002 he served as an advisor to the Central Policy Group in the Deputy Prime Minister’s Offi ce. He was Special Adviser to three Secretaries of State for the Environment from 1991-97 after serving as Director of the Green Alliance from 1982-91. He is the co-chairman of the Anglo-German Environment Forum.

He was an environmental advisor ( part time ) to BP plc from 1997 –2001. He was a member of the OECD’s High Level Panel on the Environment 1996-98 He is a Fellow of the Royal Society of Arts and was a member of the Council from 1990-92 sitting on its Environment Committee 1988-96. He also served on the Executive Committee of the National Council of Voluntary Organisations from 1984-89. He was a Visiting Fellow at the Cranfi eld Institute of Management and a Senior Visiting Fellow at Manchester Business School.

He has been a professional environmentalist for 30 years and was formerly Executive Director of Friends of the Earth and a member of the Executive Committee of the European Environmental Bureau 1988-91. He was the Secretary-General of the Bergen 1990 Environment NGO Conference 1988-90.

He has served on a number of Government appointed bodies including the National Committee for European Year of the Environment and the Waste Management Advisory Council. From 1992-96 he was a member of the Overseas Advisory Committee of Save the Children Fund. He was a member of the Board of the World Energy Council’s Commission `Energy for Tomorrow’s World’ 1990-93.

Since 1991 he has been a member of the Advisory Committee to the Business in the Environment Task Team. He is a founding member of the Council of the Institute of Environmental Management. He currently serves on the American Chemistry Council’s Leadership Dialogue and on the Advisory Board for Conservation International’s Centre for Environmental Leadership in Business in the US.

Annex 1Biographies of the panel members


99

In 1993 he was appointed to United Nations Environment Programme’s `Global 500’ roll of honour. In 1997, he was appointed CBE for services to the environment. He was awarded Royal Humane Society testimonials on Vellum ( 1968 ) and Parchment ( 1970 )

He has lectured, written and broadcast extensively on environmental matters and is the co-author of a number of books including `Green Pages’ (Routledge, 1988), `The Green Capitalists’ (Gollancz, 1987) and `Ethics, Environment and the Company (IBE, 1990).


100

Professor Sharon Turner

Professor Sharon Turner graduated from the Law Faculty, University College Dublin in 1985 and was awarded the degree of Masters of Law from Osgoode Hall, Canada in 1987. The following year she was called to the Bar of the Republic of Ireland and became a member of the Honourable Society of King’s Inns, Dublin. She was appointed to a Lectureship in the School of Law at Queen’s University in 1988; promoted to Senior Lecturer in 2001 and became Professor of Environmental Law in 2004.

Professor Turner specializes in Environmental Law particularly, the EU and Irish dimensions (North and South). She is the lead author of the established text on environmental law in Northern Ireland and editor of two edited collections. In addition, she has published numerous articles and chapters in books. Professor Turner has recently returned to Queen’s from a two-year secondment to the Department of the Environment (DOE) in Northern Ireland during which time she acted as the Department’s senior legal advisor on the environment. As such she was extensively involved in advising the DOE, the Department of Agriculture and Rural Development, the Department of Regional Development and the Northern Ireland Water Service on the development of environmental policy and legislation - in particular concerning the control of agricultural pollution by nutrients; the implementation of the Habitats Directive and the implications of lifting Crown Immunity for Water Service. She was also responsible for preparing the legal defenses to litigation taken by the EU Commission against the UK in respect of failures to implement EU Directives on the environment in N.I.

Professor Turner has recently been appointed to the panel of external legal experts advising the DOE. In addition, she is a member of the editorial boards of the Journal of Environmental Law and the Journal of European Environmental Policy. She is a founder member of the Environmental & Planning Law Association in Northern Ireland and is active in a wide variety of professional, community and Government advisory groups, notably the UK Environmental Law Association, the Advisory Council of the Environmental Law Foundation (London), the Northern Ireland Committee of the Royal Society for the Protection of Birds, the Marine and Planning Sub-Groups of the Statutory Advisory Council for Nature Conservation and the Countryside and the Department of the Environment Think Tank on Sustainable Development.


101

R. Gordon Bell

From 1997 until his retirement in 2005, Gordon was Managing Director of Liberty Information Technology, a Belfast-based subsidiary of US insurance giant, Liberty Mutual Group. Set up to provide software development resources to its parent, Liberty IT grew from start-up to employing 200 software professionals under Gordon’s leadership.

From 1992 to 1997 Gordon was Inward Investment Director for the software sector for Northern Ireland’s Industrial Development Board (now InvestNI). He played a critical role in attracting and securing investments by 12 software companies today employing several hundred staff.From 1984 to 1993 Gordon was a main board director of and shareholder in the ICS Computing Group, then Northern Ireland’s largest computing services group. As founding Managing Director of ICS’ subsidiary, Software Ireland, he built the company from scratch to 100 software professionals.

A graduate in Pure Mathematics and Mathematical Statistics from The Queen’s University of Belfast, Gordon is a Fellow of the British Computer Society and a Chartered Engineer. His involvement in Northern Ireland’s computing scene has been extensive, including periods as Chairman of the British Computer Society and the Institute of Software Engineering. He was also a founding director of Momentum – Northern Ireland’s software trade association. In 1991 he received the British Computer Society Award for Northern Ireland Computing Professional of the Year.

Outside the computing arena he has been Chairman of the Industrial Liaison Panel of the Faculty of Engineering at the University of Ulster, Deputy Chairman of the Technology Board for Northern Ireland and a member of the Institute of Directors’ Business Policy Committee. He sits on the Skills Development group of the Northern Ireland Economic Development Forum and is a Governor of the Royal Belfast Academical Institution.

Married to Margaret, Gordon has two sons and two grandchildren. Always a keen sportsman he represented Ulster at squash for many years and has been President of the Ulster Squash Rackets Association. He remains a regular tennis player and golfer, and has captained the Belvoir Park Golf Club.


102

1. Agri-Food and Biosciences Institute2. Alliance Party3. An Taisce4. Built Heritage Forum5. Chartered Institute of Environmental Health6. Coalition for Environmental Protection7. Community Technical Aid8. Confederation of British Industry9. Council for Nature, Conservation and the Countryside10. Defra11. Democratic Unionist Party12. Department for Communities and Local Government13. Department of Agriculture and Rural Development (DARD)14. Department of Culture, Arts and Leisure (DCAL) - Inland Fisheries and Waterways15. Department of Enterprise, Trade and Investment16. Department of Finance and Personnel (DFP) - Central Procurement Directorate17. Department of Health, Social Services and Public Safety18. Department of Regional Development (DRD) - Ports and Public Transport Group19. Department of Regional Development (DRD) - Water Reform Unit20. Department of Social Development (DSD) - Urban Regeneration21. Department of the Environment (DOE) - Environmental Policy Group22. Department of the Environment (DOE) - Local Government Reform23. Department of the Environment, Heritage and Local Government24. DG Environment25. English Heritage26. Environment Agency27. Environment and Heritage Service28. Environment and Rural Development Committee of the Scottish Parliament29. Environment, Food and Rural Affairs Committee30. Environmental Audit Committee31. Environmental Protection Agency32. European Environment Agency33. European Environmental Bureau34. First Group Association35. Food Standards Agency (NI)36. Friends of the Earth37. Greater London Authority38. Green Party39. Heritage Council40. Historic Buildings Council

Annex 2Organisations invited to meet with the Review


103

41. Historic Environment Advisory Council for Scotland42. Historic Monuments Council43. Historic Scotland44. Institute of Directors45. Invest Northern Ireland46. Joint Marine Partnership47. Local Government International Bureau48. Loughs Agency49. National Trust50. Natural England51. Northern Ireland Agricultural Producers’ Association52. Northern Ireland Chamber of Commerce53. Northern Ireland Environment Link54. Northern Ireland Food and Drink Association55. Northern Ireland Local Government Association56. Northern Ireland Public Service Alliance57. Offi ce of the First Minister and Deputy First Minister (OFMDFM) - Review of Public

Administration58. Planning and Water Appeals Commission59. Planning Inspectorate60. Planning Service61. Professor Bob Kalin, Queen’s University62. Professor Eithne McLoughlin, Queen’s University63. Progressive Unionist Party64. Quarry Products Association (NI)65. Rivers Agency66. Roads Service67. Royal Society for the Protection of Birds68. Scottish Environment Protection Agency69. Scottish Executive70. Scottish Natural Heritage71. Sinn Fein72. Social Democratic and Labour Party73. Strategic Investment Board74. Teagasc75. Technical Advisers Group76. Tom Frawley, Assembly Ombudsman and NI Commissioner for Complaints77. UK Rep78. Ulster Farmers’ Union79. Ulster Unionist Party80. Ulster Wildlife Trust81. University of Ulster82. Waterways Ireland


104

1. Agri-Food and Biosciences Institute2. Alliance Party3. Built Heritage Forum4. Chartered Institute of Environmental Health5. Coalition for Environmental Protection6. Community Technical Aid7. Confederation of British Industry8. Council for Nature, Conservation and the Countryside9. Department of Agriculture and Rural Development (DARD)10. Department of Culture, Arts and Leisure (DCAL) - Inland Fisheries and Waterways11. Department of Enterprise, Trade and Investment, (DETI)12. Department of Finance and Personnel (DFP) - Central Procurement Directorate13. Department of Health, Social Services and Public Safety, (DHSSPS)14. Department of Regional Development (DRD) - Ports and Public Transport Group15. Department of Regional Development (DRD) - Water Reform Unit16. Department of Social Development (DSD) - Urban Regeneration17. Department of the Environment (DOE) - Environmental Policy Group18. Department of the Environment (DOE) - Local Government Reform19. Environment and Heritage Service20. First Group Association21. Food Standards Agency (NI)22. Friends of the Earth23. Green Party24. Historic Buildings Council25. Historic Monuments Council26. Invest Northern Ireland27. Joint Marine Partnership28. Loughs Agency29. National Trust30. Northern Ireland Agricultural Producers’ Association31. Northern Ireland Environment Link32. Northern Ireland Food and Drink Association33. Northern Ireland Local Government Association34. Northern Ireland Public Service Alliance35. Offi ce of the First Minister and Deputy First Minister (OFMDFM) - Review of Public

Administration36. Planning and Water Appeals Commission37. Planning Service38. Professor Bob Kalin, Queen’s University39. Professor Eithne McLoughlin, Queen’s University

Annex 3Organisations that met with the Review


105

40. Quarry Products Association (NI)41. Rivers Agency42. Roads Service43. Royal Society for the Protection of Birds44. Social Democratic and Labour Party45. Strategic Investment Board46. Technical Advisers Group47. Tom Frawley, Assembly Ombudsman and NI Commissioner for Complaints48. Ulster Farmers’ Union49. Ulster Unionist Party50. Ulster Wildlife Trust51. University of Ulster


106

1. Alliance Party2. Built Heritage Forum3. Chief Environmental Health Offi cers Group (NI) 4. Coalition for Environmental Protection5. Community Technical Aid6. Confederation of British Industry7. Council for Nature Conservation and the Countryside8. Countryside Access and Activities Network (NI)9. Department for Regional Development (DRD)10. Department of Agriculture and Rural Development (DARD)11. Department of Culture, Arts and Leisure (DCAL) - Inland Fisheries Branch and Inland

Waterways12. Department of the Environment (DOE) - Environmental Policy Group13. Department of Finance and Personnel (DFP) - Central Procurement Directorate14. Department of Health, Social Services and Public Safety (DHSSPS)15. Drainage Council for Northern Ireland16. Environment and Heritage Service17. Food Standards Agency (NI)18. Forest Service19. Friends of the Earth20. General Consumer Council (NI)21. Historic Buildings Council22. Historic Monuments Council23. Institute of Directors24. International Tree Foundation25. Invest NI 26. Joint Marine Partnership (WWF and UWT)27. Labour Members in Northern Ireland28. Lough Neagh and Lower Bann Advisory Committees29. Mourne Heritage Trust30. National Trust31. Northern Ireland Biodiversity Group32. Northern Ireland Council for Voluntary Action33. Northern Ireland Cycling Initiative34. Northern Ireland Electricity35. Northern Ireland Environment Link 36. Northern Ireland Place-Name Project37. Paul F. Haslam

Annex 4 Written Submissions received from Organisations and Individuals


107

38. Planning Appeals Commission39. Planning Service40. Port of Belfast41. Prehen Historical and Environmental Society42. Professor Richard Macrory43. Quarry Products Association (NI)44. Queens University Belfast45. Rivers Agency46. Roads Service47. Royal Society for the Protection of Birds48. Technical Advisers Group (NI)49. Tidy NI50. UK Environmental Law Association51. Ulster Angling Federation Ltd.52. Ulster Unionist Party53. Ulster Wildlife Trust54. University of Ulster55. Waterways Ireland56. World Wildlife Fund


108

1. An Taisce, Ireland2. Defra, England3. Department for Communities and Local Government, England4. Department of the Environment, Heritage and Local Government, Ireland5. English Heritage6. Environment Agency, England7. Environment and Rural Development Committee, Scottish Parliament8. Environment, Food and Rural Affairs Committee, UK Parliament9. Environmental Audit Committee, UK Parliament10. Environmental Protection Agency, Ireland11. EU Directorate-General, Environment, Brussels12. European Environment Agency, Copenhagen13. European Environmental Bureau, Brussels14. Greater London Authority, England15. Heritage Council, Ireland16. Historic Environment Advisory Council, Scotland17. Historic Scotland18. Local Government International Bureau, Brussels19. Natural England20. Planning Inspectorate, England21. Scottish Environment Protection Agency22. Scottish Executive, Sarah Boyack23. Scottish Natural Heritage24. Teagasc25. UK’s Permanent Representative to the EU, Brussels26. Waterways Ireland

Annex 5Organisations in other jurisdictions visited by the Review


109

Annex 6Functional Responsibilities of Planning and Environmental Policy Group

Planning and Environmental Policy Group

Senior Civil ServiceGrade 5

Senior Civil ServiceGrade 5

Grade 6 Grade 6 (Equiv.)Legal

Grade 6 Grade 6

Waste

Air and Env. Quality

Climate Change

Clean Neighbourhoods

Shared Corporate Services

Legal Services

Natural Heritage

Water

Planning Policy

Climate ChangeAnd Waste

Management Division

Planning and Natural Resources


110

Arena Network (2004) Northern Limits a resource fl ow analysis and ecological footprint for Northern Ireland

Audit Commission (2003) Corporate governance: Improvement and trust in local public services, Audit Commission

Barker, L. (Public Services Productivity Panel) (2004) Building Effective Boards Enhancing the Effectiveness of the Independent Boards in executive Non-Departmental Public Bodies, HM Treasury

Better Regulation Executive (BRE) (2005) Regulatory Justice: Sanctioning in a post-Hampton World, BRE, Cabinet Offi ce

Better Regulation Executive (BRE) (2006) Regulatory Justice: Sanctioning in a post-Hampton World Consultation Document, May 2006, BRE, Cabinet Offi ce

Chartered Institute of Environmental Health (CIEH) (2003) Healthy people, healthy planet: A decade of progress in health and environment practice and policy in the UK, CIEH, London

Defra (2004) Delivering the Essentials of Life: Defra’s Five Year Strategy, The Stationery Offi ce

Department for Regional Development (2001) Shaping Our Future – The Regional Development Strategy for Northern Ireland 2025, DRD, Belfast

Department for Regional Development (NI) (2002) Regional Transport Strategy for Northern Ireland 2002-2012, DRD, Belfast

Department for Social Development (NI) (2005) Setting standards, Improving performance... Best Practice in Finance and Governance in the Voluntary and Community Sector, DSD, Belfast

Department for Transport (DFT) (2005) The Future of Air Transport – White Paper and the Civil Aviation Bill chapter 3 - Environmental impacts, DFT, London

Department of Agriculture and Rural Development (NI) (2002) Education and R&D in Agriculture and Food Science Report of Review Panel, DARD, Belfast

Department of Agriculture and Rural Development (NI) (2003) A guide to Rural Proofi ng considering the needs of rural areas and communities, DARD, Belfast

Department of the Environment (NI) (2006) Local Government Taskforce Community Planning Sub-group Recommendation Paper, DOE, Belfast

Annex 7References


111

EEB, ETUC and Social Platform (2004) Investing for a Sustainable Future: from best practice to common practice A call for EU-wide investment in sustainable housing and transport innovations: driving the economy, improving the environment and creating social cohesion

Effi ciency Unit (1998) Improving Management in Government: The Next Steps Report to the Prime Minister, London, HMSO

Ellis, G. and Murtagh, B (May 2007) Skills for Managing Spatial Diversity A Research Project for the ESRC and the Academy for Sustainable Communities, Belfast, Queens University Belfast

English Heritage (2006) English Heritage Information Pack 2006/ 07

English Heritage (2006) Historic Environment Champions Local Leadership for the Historic Environment, English Heritage

Environment & Heritage Service (NI) (2006) Annual Report & Agency Accounts 2005/ 2006, EHS, Belfast

Environment Agency (2004) An Environmental Vision, EA, Bristol

Environment Agency (2005) State of the Environment 2005 Our environment – how it is, EA, Bristol

Environmental Health Commission (1997) Agendas for Change, Chadwick House Group, London

Environmental Protection Agency (EPA) (1996) State of the Environment in Ireland, EPA, Ireland

Environmental Protection Agency (EPA) (1999) Environment in Focus A Discussion Document on Key National Environmental Indicators, EPA, Ireland

Environmental Protection Agency (EPA) (2000) Ireland’s Environment A Millennium Report, EPA, Ireland

Environmental Protection Agency (EPA) (2000) Ireland’s Environment A Millennium Report Offprint: Chapter 11 The Land, EPA, Ireland

Environmental Protection Agency (EPA) (2000) Ireland’s Environment A Millennium Report Offprint: Chapter 13 The Main Issues, EPA, Ireland

Environmental Protection Agency (EPA) (2000) Ireland’s Environment A Millennium Report Offprint: Chapter 4 Emissions to Air, EPA, Ireland


112

Environmental Protection Agency (EPA) (2002) Environment in Focus 2002 Key Environmental Indicators for Ireland, EPA, Ireland

Environmental Protection Agency (EPA) (2004) Ireland’s Environment 2004, EPA, Ireland

Environmental Protection Agency (EPA) (2004) Ireland’s Environment 2004 Offprint: Chapter 19 Overview and Future Agenda, EPA, Ireland

Environmental Protection Agency (EPA) Ireland’s Environment A Millennium Report Executive Summary, EPA, Ireland

Environmental Protection Agency (EPA) Ireland’s environment Who DOEs what?

Environmental Protection Agency (EPA) pack Rural Ireland 2025 Foresight Perspectives (2005); EPA Strategic Framework 2003-2006 (2003); Environmental Protection Agency Annual Report and Accounts 2004; Environmental Protection Agency Annual Highlights 2005; Presentation to EPA Advisory Committee April 2006; Scannell. Y Environmental and Land Use Law (2006); The Environmental Protection Agency who we are – what we do; Ireland’s environmental Who DOEs what?

European Environment Agency (EEA) (2004) EEA strategy 2004-2008, EEA, Copenhagen

European Environment Agency (EEA) (2005) Effectiveness of packaging waste management systems in selected countries: an EEA pilot study, EEA, Copenhagen

European Environment Agency (EEA) (2005) Effectiveness of urban wastewater treatment policies in selected countries: an EEA pilot study, EEA, Copenhagen

European Environment Agency (EEA) (2005) Environmental policy integration in Europe Administrative culture and practices, EEA, Copenhagen

European Environment Agency (EEA) (2005) Environmental policy integration in Europe: State of play and an evaluation framework, EEA, Copenhagen

European Environment Agency (EEA) (2005) The European Environment State and Outlook 2005, EEA, Copenhagen

European Environment Agency (EEA) (2006) European Network of Environment Protection Agencies First Draft

European Environment Agency (EEA) (2006) Using the market for cost-effective environmental policy Market-based instruments in Europe, EEA, Copenhagen


113

European Environment Agency (EEA) Policy effectiveness evaluation The effectiveness of urban wastewater treatment and packaging waste management systems, EEA, Copenhagen

European Environment Agency (EEA) The European Environment Agency who we are/ what we do/ how we do it, EEA, Copenhagen

European Environmental Bureau (EEB) (2005) EU Environmental Policy Handbook: A critical analysis of the EU Environmental Legislation Making it accessible to environmentalists and decision makers, EEB, Brussels

European Environmental Bureau (EEB) (2005) Executive Committee Members, EEB, Brussels

European Environmental Bureau (EEB) (July 2006) Metamorphosis Newsletter, EEB, Brussels

European Environmental Bureau(EEB) (2002) The 6th Environmental Action Programme of the European Union Legally binding commitments and obligations, EEB, Brussels

Fawcett, Dr. L. for Friends of the Earth Northern Ireland (2006) The regulation of Northern Ireland’s Waste Industry: private sector and comparative perspectives, Friends of the Earth

Hampton, Philip (2005) Reducing administrative burdens: effective inspection and enforcement, HM Treasury

HELM (Historic Environment Local Management), English Heritage HELM Your guide to the historic environment

Hinds, Bronagh and Loughlin, John (2005) The Review of Public Administration in Northern Ireland: Checks, Balances and Safeguards, RPA, Northern Ireland Executive

Historic Monuments Council (2006) HMC Work Programme 2006/2009

HM Treasury (2005) Corporate governance in central government departments: code of good practice, HM Treasury

Institute of Historic Building Conservation (IHBC) Yearbook 2005, Cathedral Communications Ltd, Wiltshire

James, O. (2003) The Executive Agency revolution in Whitehall

Local Government Association greening communities campaign kit: ideas into action

Local Government International Bureau (LGIB) (2006) The Committee of the Regions The Voice of local government in Europe International Report number 12, LGIB, London


114

Loughs Agency evidence to Review of Environmental Governance Panel on 17 August 2006

Macrory, Prof. R. (2004) Trust and Transparency: Reshaping Environmental Governance in Northern Ireland, Faculty of Laws University College, London

Massey, A. (2005) Public management and modernisation in Britain

Members of the Historic Monuments Council (HMC) with effect from 1 February 2006 until 31 January 2009

Minutes of Round Table on Environmental Governance held on 27 October 2005

Moore, Mark H. (1997) Creating Public Value: Strategic Management in Government, Harvard University Press

Northern Ireland Act 1998 Chapter 47

Northern Ireland Audit Offi ce (NIAO) (2003) Areas of Special Scientifi c Interest, Report by the Comptroller and Auditor General, London, The Stationery Offi ce

Northern Ireland Audit Offi ce (NIAO) (2005) Northern Ireland’s Waste Management Strategy, Report by the Comptroller and Auditor General, London, The Stationery Offi ce

Northern Ireland Biodiversity Group (NIBG) (2005) Delivery of the Northern Ireland Biodiversity Strategy The First Report of the Northern Ireland Biodiversity Group 2005, NIBG, Belfast

Northern Ireland Executive (2002) Programme for Government making a difference 2002-2005, OFMDFM, Belfast

Northern Ireland Green NGOs Group (2006) The Environmental Economy of Northern Ireland Final Report, GHK, London

Offi ce of the First and Deputy First Minister (2006) A Sustainable Development Strategy for Northern Ireland – fi rst steps towards sustainability, Belfast, OFMDFM

Offi ce of the First and Deputy First Minister (OFMDFM) (2006) Moving to Common Boundaries, OFMDFM, Belfast

Policy Commission on the Future of Farming and Food (2002) Farming & Food – a sustainable future, London, Cabinet Offi ce

Politt, C. (2004) Agencies: How governments do things through semi-autonomous organisations


115

Regulation (EC) No1641/2003 of the European Parliament and of the Council of 22 July 2003 amending Council Regulation (EEC) No1210/90 on the establishment of the European Environment Agency and the European Environment Information and Observation Network

Report of English Heritage and its European Counterparts: Fact-fi nding and Benchmarking meeting held in September 2005

Rivers Agency (2005) Rivers Agency 2004-2005 Annual Report and Accounts, Rivers Agency, Belfast

Rivers Agency (2005) Rivers Agency 2005-2010 Corporate Plan, 2005-2006 Business Plan, Rivers Agency, Belfast

Rivers Agency (2007) Flood Management Policy Review: Discussion Document Post Public Consultation, Rivers Agency

Rivers Agency (2007) Flood Management Policy Review: Final Report Proposed Policy Framework, Rivers Agency

Rivers Agency evidence to Review of Environmental Governance Panel on 13 April 2006

Roads Service (1998) Environmental Handbook, Roads Service, Belfast

Rhodes, R.A.W (2003) Decentralising the Civil Service: from unitary state to differentiated polity in the United Kingdom

Royal Society for the Protection of Birds (RSPB) (2006) A Living Countryside, RSPB

Royal Society for the Protection of Birds (RSPB) evidence to Review of Environmental Governance Panel on 30 May 2006

Scotland & Northern Ireland Forum for Environmental Research (SNIFFER) (2007) Preparing for a Changing Climate in Northern Ireland Final Report, SNIFFER

Scotland & Northern Ireland Forum for Environmental Research (SNIFFER) (2007) Preparing for a changing climate in Northern Ireland, SNIFFER

Scottish Environment Protection Agency (SEPA) (2006) State of Scotland’s Environment 2006 change tomorrow today, SEPA

Scottish Executive (2007) Recommendations of the Advisory Group on Marine and Coastal Strategy – A follow up to Seas the Opportunity: A Strategy for the Long Term Sustainability of Scotland’s Coasts and Seas, Scottish Executive


116

Shipan, Charles R. (2006) Independence and the Irish Environmental Protection Agency: A Comparative Assessment, The Policy Institute, Trinity College, Dublin

Sparrow, Malcolm K. (2000) The Regulatory Craft: Controlling risks, solving problems, and managing compliance, The Brookings Institution, Washington D.C

Strategic Investment Board (SIB) (2005) Investment Strategy for Northern Ireland 2005/2015, SIB

The Independent Commission on Good Governance in Public Services (2004) The Good Governance Standard for Public Services, Offi ce for Public Management Ltd (OPM), The Chartered Institute of Public Finance and Accountancy (CIPFA)

The National Trust (2004) A Sense of Place: Planning for the Future in Northern Ireland Summary and Recommendations of the Northern Ireland Planning Commission March 2004, National Trust

Turner, S. (2006) Transforming Environmental Governance in Northern Ireland - Part one: The Process of Policy Renewal, Journal of Environmental Law, Vol. 18, No. 1, pp. 55-87

Documents

Review of Environmental Governance in Northern Ireland · Review of Environmental Governance in Northern Ireland 1 Page Foreword 4 Summary of Recommendations 6 ... • Cross cutting