Environmental Law for The Built Environment

Jack Rostron

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135340773
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a concise exposition of the relevant law and techniques commonly used to meet the regulatory requirements concerning the built environment. It provides a much needed reference and learning text for the growing professional and student involved in the subject. Aspects of environmental law and technology covered include the administration and sources of law, town and country planning, water and air pollution, waste, integrated pollution control and the natural environment.

It highlights the importance of cross-boundary control, describing in detail the European and international law and enforcement regimes, the agencies involved in town and country planning, procedures at inquiries and enforcement measures, as well as looking at future developments. The important new protocol for assessing the environmental impact of developments is explained in detail.

The policy framework and technical processes involved in dealing with water pollution are explored in terms of abstraction, supply, discharge and classification. Air pollution is dealt with in terms of energy efficiency, nuclear power, transport and future potential developments, and the recent phenomenon of sick building syndrome is explored in some detail.

Other areas covered include the regulatory and technical processes involved in dealing with contaminated land, recycling/re-use, incineration, import/export and the law, policy and technology of integrated pollution control. A detailed exposition is offered of the legal issues concerning protection of the countryside, birds and animals; the problem of genetically modified crops; forestry; and mining.

CHAPTER 1
INTRODUCTION

The environmental revolution amid which we live has a double face. It can be seen as a man made change, sudden and worldwide, in our natural environment. It can equally be regarded in the light of a transformation in our attitude to that environment. By going so far as he now has towards taking the earth from nature, man has made it inevitable, not only that he should manage nature, but also that he should henceforth learn to manage as a part of nature.

This declaration by Nicholson in his now, some may say, dated, but nonetheless seminal, work, The Environmental Revolution (1968), indicates the start of modern man’s concern with the environment.

The creation of our current environmental awareness stems from man’s technical achievements in harnessing the power of nature for his own ends. The Industrial Revolution of the Victorian period created the capability to place Great Britain at the centre of a mighty empire. Then, and subsequently, industrialisation was seen largely only in terms of its wealth producing possibilities. Little, if any, thought was given to the longer term environmental implications of these wealth creating activities.

At the dawn of the 21st century, man has to deal with his legacy. It is no longer acceptable to create wealth without consideration of the immediate and longer term effects that such activities have on the environment.

Man clearly has the ingenuity to develop technical solutions to both remediate his past actions and, hopefully, prevent future environmental degradation. In order to harness his technical capabilities appropriately, a strong and evolving legal framework is necessary.

It is against this twofold approach – of first developing the technology to remediate and prevent further environmental damage and, secondly, evolving a legal framework to ensure that man’s technical abilities are both restrained and encouraged to create a better environment – that the idea for this book was conceived. Perhaps it is an impossible task to produce in one text a meaningful discourse on environmental law and technologies. Whilst it may be impossible, it is certainly necessary to attempt to do so.

SCOPE AND PURPOSE

In order to meet some of these challenges, the authors of books on environmental law and techniques have to make choices. On the one hand, they can attempt to encompass everything, in which case the project becomes unmanageable. On the other hand, they can attempt to limit their scope to that which they think is important, the consequence of which is the risk of omitting issues which are equally important to the reader.

In writing this book, the choice has been to lay emphasis on those areas which are topical and come within the purview of the built environment. Such terms can lay down artificial barriers, but limitations are necessary.

Those aspects of environmental law and technology which have been chosen are: the administration and sources of the law; town and country planning; water and air pollution; waste; integrated pollution control; and the ‘natural’ environment.

Chapter 2 describes the administration and sources of environmental law. It traces the evolution of ‘modern’ statutory controls from their historical routes in common law. It highlights the importance of cross-boundary control, describing in detail European and international law and enforcement regimes. A review of future developments is offered, particularly in terms of the impact of the new Human Rights Act 1998.

Chapter 3 discusses the town and country planning legal and administrative framework. In particular, it describes the agencies involved, the procedures at inquiries and enforcement measures and it looks at future developments. The important new protocol for assessing the environmental impact of new developments is explained in detail.

Chapter 4 describes the policy framework and legal processes involved in dealing with water pollution in terms of abstraction, supply, discharge and classification. It also explains the technical aspects of wastewater, water use, lead contaminants, flooding, groundwater and grey water.

Chapter 5 discusses the legal, regulatory and policy issues concerning air pollution. It does this in terms of energy efficiency, nuclear power, transport and future potential developments. Air pollution technology and the ‘recent’ phenomenon of sick building syndrome is explored in some detail.

Chapter 6 explains the law surrounding waste. It deals with the regulatory processes involved in dealing with contaminated land, recycling/re-use, incineration and import/export. The scientific and technological aspects of investigating and remediation of contaminated land are described in detail.

Chapter 7 deals with the law and policy of integrated pollution control. It specifically describes the background to the law, its application to certain processes, and offences and remedies. Noise technology and the environmental assessment of buildings is explained.

Chapter 8 describes the law regarding the use of land in rural areas and nature conservation. It offers a detailed exposition of the legal issues concerning protection of the countryside, birds and animals, the problem of genetically modified crops, forestry and mining.

CHAPTER 2
ADMINISTRATION AND SOURCES OF ENVIRONMENTAL LAW

BACKGROUND

The law sections of this book are there not to provide the last word on the law but to draw out the basics of the regulatory regime and to guide the user to where the details of the law can be found.¹ It is also the aim to show the general trends in environmental law, where it is going and what the issues may be in the future. It is based upon fundamental principles: that the highest level of environmental protection should be humanity’s goal and that the precautionary principle should always apply. The issues raised in relation to the environment are fundamental to our survival and are relevant not just to legal practitioners, students or academics, but to us all, as humans; we are all part of the problem as well as the solution. This book is an attempt to put the problem of environmental degradation into perspective. It is a problem that often seems to be beyond our capacity or capability to do anything about or even to understand, but, as Albert Einstein said, ‘The most incomprehensible thing about the world is that it is comprehensible’. If we can comprehend how the law has responded to this problem, then we are at least someway towards its solution. The key idea to remember is that law is a balance between utopian ideas and practical reality, so what has and will influence the development of environmental law depends upon the political/philosophical/social and economic debates taking place, as well as solving the practical legal problems.

The aim of this chapter is to put environmental law into its wider context and to explain some of the basic issues needed to understand how environmental law works.

HISTORY²

Environmental law developed out of common law controls that were mainly based around the idea of property rights and nuisance.³ This later took legislative form through the public health legislation that still concentrated on human needs, that is, health rather than the protection of the environment per se.⁴ Since 1945, when a vast range of artificial, totally new substances were introduced into the environment, such as pesticides, there has been growing pressure and fear about whether we are upsetting the ecosystem to such a degree that we threaten the continuity of the system itself.

The UK was one of the first countries to industrialise and it has a long history of the problems that economic development can bring to the environment in terms of resource depletion, pollution, congestion and degradation of the rural and urban environment. The UK was also the first country to develop controls over pollution and it set up the first environmental agency – the Alkali Inspectorate, which later became Her Majesty’s Inspectorate of Pollution (HMIP). The common law had responded to the problem of pollution through the development of nuisance and the law had been further developed through public health legislation. The development of town and country planning led to a more precautionary approach, but there was no real attempt to provide planning for long term problems such as pollution. This reflected the ad hoc nature of decision making in the UK and the pragmatic way in which governments often responded to the issues. This can be seen in relation to the statutes passed since 1945.

In 1945, a number of environmental statutes were passed which attempted to improve the life of ordinary people. In the environmental field, there had been calls for more access to the countryside and, in the National Parks and Access to the Countryside Act 1949, this aim was partially granted. The Town and Country Planning Act 1947 reflected the belief that society needed to be planned, but legislation was often passed on an ad hoc basis, such as the Clean Air Act 1956, which was passed to deal with the London smog problem.

The late 1960s and early 1970s saw a great upsurge in the public’s interest in environmental policy through media coverage and pressure group campaigning, and popular interest increased dramatically in a short period of time. There were a number of reasons for this:⁵

• the growth of the media – media transmits ideas at great speed and can show specific pollution events;
• rising educational standards;
• environmental disasters, such as the Torrey Canyon oil spill, where 120,000 tons of oil were spilt into the sea in 1967, and Chernobyl 1986;
• scientific advances;
• increased understanding about pollution and ecosystems;
• internationalisation of problems;
• economic consequences of growth became apparent;
• society’s moral framework has changed;
• pressure from the European Community (EC).

However, the Control of Pollution Act (COPA) 1974 was the first attempt to legislate comprehensibly on environmental pollution. Nevertheless, there was still a tendency towards ad hoc law, as seen by the Deposit of Poisonous Waste Act 1972, enacted following the discovery by a local conservation group of cyanide dumping in the Midlands.

By the 1980s, it was clear that the shortcomings of the previous environmental pollution strategies left many problems unresolved and, in many cases, actually getting worse. This was often due to the rising standard of living in developed countries leading to more pollution. There was a realisation that long term planning was needed to deal with new problems and the concept of sustainability was developed. This led to a growing number of policy initiatives at an international, European and domestic level.

In the UK, the main Acts are:

• Water Industry Acts 1991 and 1999;
• Water Resources Act 1991;
• Wildlife and Countryside Act 1981 (as amended);
• Environmental Protection Act 1990 (as amended);
• Environment Act 1995;
• Pollution Prevention Control Act 1999;
• Town and Country Planning Act 1990;
• Planning (Listed Buildings and Conservation Areas) Act 1990.

The growth of regulation

So, since 1945, there have been two broad influences on the development of environmental law.⁶ The first was the growth in the belief that economy/society needed to be planned, which has led to growing State intervention in all facets of life, both economic and social. This was especially so after the Second World War, when people had become accustomed to the State regulating their lives in detail.

A recognition that the environment needs to be protected, not only due to the impact of pollution on human health, but also because the environment is seen as having intrinsic worth, led to the development of regulatory controls.⁷ Regulation can be broken down into a number of steps:

• establishment of general policies, for example, clean rivers;
• setting of specific policies or standards, for example, water quality objectives for rivers;
• application of these standards to specific situations – licence conditions;
• enforcement of standards, permissions, licences, etc.

Administrative regulation is the application of rules and procedures by public bodies⁸ so as to achieve a measure of control over activities carried out by individuals or firms. It is more coherent and less reactive than the common law and many market mechanisms need administrative/regulatory mechanisms to make them effective.⁹ The UK regulatory structure used to be described as pragmatic and flexible, decentralised and discretionary.¹⁰ This has changed to a certain extent, as decision making is now more centralised and there are more statutory standards set.¹¹

EUROPE¹²

The EC

Although the UK has a long history of environmental protection and set up one of the first regulatory agencies – the Alkali Inspectorate, later to become HMIP and then amalgamated into the Environment Agency (EA) – most of the impetus for environmental change since 1945 has come from Europe and from international treaties.

The EC institutio...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Preface
• Acknowledgments
• List of Contributors
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Legislation
• Table of Abbreviations
• Chapter 1 Introduction
• Chapter 2 Administration and Sources of Environmental Law
• Chapter 3 Town and Country Planning
• Chapter 4 Water Pollution
• Chapter 5 Air Pollution Control
• Chapter 6 Waste
• Chapter 7 Integrated Pollution Prevention and Control
• Chapter 8 Rural Areas and Nature Conservation
• Appendix 1 The Town and Country Planning (Use Classes) Order 1987 (SI 1987/764 ) (As Amended)
• Appendix 2 The Town and Country Planning (General Permitted Development) Order 1995 as Amended (Abridged Version)
• Appendix 3 Assessment of SBS
• Bibliography