Dominic Woodfield is the Managing Director of Bioscan, a long established and well respected consultancy specialising in applied ecology. He is a life-long birder, a specialist in botany, habitat restoration and creation and in protected fauna including bats, herpetofauna and other species. He is also a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted an independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire, which resulted in planning permission for a five-hundred unit housing development being overturned. He lives in Oxford with his partner and family.
The Great Divide; the gulf between consenting and implementation, promise and reality, in UK development and its consequences for the environment.
Gaining planning consent for a project requires, in almost every instance, promises to be made. These promises may be made by developers and project promoters to either do something or not do something. They may be tangible and physical in nature – for example the building of a new community centre in the centre of a housing estate and the gifting of this to the local Parish Council. They may be fiscal in nature – for example a financial contribution to a local authority from the developers of a new housing estate for use in improving local bus services. They may be based on a set of clear and easily enforceable criteria – for example pre-defined restrictions on construction working hours to prevent nuisance to neighbours. Or they may be based on a commitment to follow strategies or methods of working intended to limit or prevent damage to the environment – for example working to an agreed construction environmental management plan that sets out measures to prevent pollution.
This article primarily concerns the last of these categories – being the most difficult to enforce and the most reliant on individual and corporate responsibility and due diligence rather than external regulation. It draws on the author’s twenty-five years of experience as an environmental consultant, during which time he has accompanied – through the planning, consenting and implementation phases – well over a thousand discrete projects at varied scales. The author feels that there is a need to challenge certain commonplace (but in his view naïve, misguided or complacent) perceptions about the efficacy of current systems of controlling the environmental impacts of construction. Indeed there is a long overdue debate to be had amongst planners, regulators, developers and those in the construction industry over how to improve matters and reduce the incidence of avoidable, potentially significant and arguably unlawful environmental harms arising.
Five major problems with the way current systems operate and which significantly increase the likelihood of promises being broken at the implementation stage of a project are as follows:
- Disconnect between planning and construction teams
This is one of the biggest root causes of problems with larger-scale developments. With such projects it is extremely rare, in the author’s experience, to continue to work with the same individuals through both the process of seeking and obtaining planning consent, and latterly implementing it. The organisational structure of most development companies is to have a planning (or consenting) team and a separate construction (or implementation) team. The former are concerned with obtaining planning consent and perhaps also with discharging conditions and reserved matters. They then hand over to the latter who are concerned solely with construction – and typically with construction in as cheap and rapid a manner as possible.
The potential for problems to arise with this approach is not hard to foresee. Often construction and implementation teams have no more than a vague notion, still less a detailed knowledge, of the hurdles the planning and consenting team may have had to jump to clear the bar of ‘acceptability’ and achieve the consents for what they are implementing, let alone the reasons behind those hurdles being put there. They may not even know their colleagues in the planning team, and indeed they may harbour prejudices along the lines of those in the consenting department “not knowing how the real world works”. This does not cultivate a culture of continuity and it affords construction managers the temptation to re-shuffle the terms of reference of the consent based on their own priorities.
- ‘Don’t look back’ syndrome
Related to 1 above is the common perception or preconception amongst implementation teams that the consenting process is “water under the bridge”; a gateway stage that is now in the rear-view mirror after someone else has already dealt with it. Even where implementation teams are aware of the matters that were engaged at the planning stage, they may feel they need no longer concern themselves with them and are therefore relatively free to decide how to build what’s on the drawings that they are given most quickly and cost-effectively. For their part, the planning team in the same company may feel that their work is done on discharge of the last pre-commencement condition and that it is enough to hand over volumes and volumes of complex planning documents to a construction manager and walk away (or they may not be given the time and resources to do anything else). Even in the instances where a more meaningful attempt at informed hand-over is made, all that is bridging the gap between these teams is often a slim-line document that attempts to distil down multiple residual requirements set by a planning consent into a summary that does little more than cross-reference back to the mountains of planning paperwork. It is not hard to see why a construction manager is reluctant to delve into what he or she may perceive as ‘ancient history’. Add to that the natural inclination to be a ‘new broom’ and the route for departure from the planning consent is set.
- Contractor tail wagging developer dog
The problem of shifting perceptions and understanding may be further compounded when complex documents submitted for planning and to discharge reserved matters and conditions are distilled into procurement packages: this can result in contractors quoting for construction projects on the basis of an approach that is much simpler and less restricted than the planning permission actually allows for. If and when omitted details emerge at a later stage, the stage is set for arguments over contract variations and the related financial burden of meeting them. At that point, pressured construction managers may feel obliged to weigh up the relative risks of being on the end of enforcement action from resource-starved planning authorities and regulators (see 4 below), against having to answer to their superiors about overspend and breaches of budgetary constraint. It’s not hard to see which of these two is generally considered to be the lesser risk. All too often this can cultivate a culture of ‘tail wagging dog’ where contractors are emboldened to constantly stretch the envelope, take short-cuts or even disregard requirements entirely by using the threat of additional costs invoked by contractual clauses as a Sword of Damocles. In the author’s experience, this is one of the biggest causes of departure from the terms of a planning consent and it is vanishingly rare for it to be called out – in large part because of (4) below.
- Lack of proper regulation, monitoring and enforcement
On the occasions where the scenarios painted under 1 to 3 above result in planning commitments being missed or disregarded, the safety net for the environment most obviously comprises the various regulatory authorities. However all planning authorities and environmental regulators are cash starved, now arguably more than ever. This has direct and obvious consequences for the amount of resource channelled into regulation and enforcement, and consequently the scrutiny given to construction projects. Where scrutiny is applied at all, there is often a mismatch between the relative attention given to environmental issues as opposed to more easily measurable and quantifiable elements or those that are made impossible to ignore because of loud public complaints. The care given by contractors to keeping a promise to retain an area of habitat within a construction site, especially one screened from the public eye by hoardings, is always going to be lower than the stringency applied to ensuring that mud tracked onto the adjoining public roads be swept off twice daily. But while natural public surveillance can do much to enforce and regulate on the bigger and more obvious transgressions, even where specific checks from the relevant authorities are absent, who picks up on the less tangible or obvious condition breaches unless someone from the local authority is a) tasked to do this; b) has the necessary experience to understand what is required and c) actually does it?
- Setting of unrealistic, impractical and/or throwaway commitments
Examples of this include the use of extremely loose (to the point of meaningless) phraseology in order to tick a box. A construction environmental management plan (CEMP) that states that noisy activities will be sited well away from sensitive receptors “where possible” or that consideration will be given to the possible presence of noise-sensitive species prior to commencing piling or concrete crushing is effectively meaningless if there is no further incentive for construction firms to do it, or if the construction project happens to be in a sensitive area in the first place.
Overly complex, overlapping and repetitious conditions also do not help to set parameters that are easily understood by construction managers and practical and achievable to meet. This tends to become a particularly acute problem with large and complex developments that are phased over an extended timescale, such as urban extensions that may involve multiple land-ownerships.
What can be done?
The factors touched upon above are not a comprehensive diagnosis but a mere illustration of how the thread connecting a planning permission to what actually happens on the ground is currently weakened by multiple points of potential failure. Those reading this may be able to think of other examples and means by which good intentions or hard-won concessions at consenting stage get sidelined or abandoned at implementation. I would go so far as to say that in my experience it is generally the exception, rather than the rule, for a planning permission to be implemented in strict accord with the parameters and terms of reference set down by the actual consent. Many or even most of these departures go unnoticed, and in any event the consequences arising from those are picked up by regulators rarely amount to an incentive to change behaviours. This does a disservice to the planning system and erodes the public’s faith in it at a time when its efficacy in delivering sustainable development is being questioned perhaps more than ever.
Further, it is the larger, more complex and potentially more environmentally risky projects where this mismatch between on-paper expectations and assumptions and construction site reality is most likely to arise, and most likely to be significant. Of course there are instances where each and every departure from a written consent is unavoidable and justifiable, and duly checked and sanctioned by the regulating authorities, but in the author’s experience such scenarios are vanishingly rare.
Short of pumping a lot of Government money into local authorities and regulators for the express and ring-fenced purpose of improving monitoring and enforcement (a somewhat adversarial approach), improving this situation is likely to require unilateral and industry-wide improvements to professional practice, both in planning, regulation, and within the development and construction industry itself. A number of obvious areas for improvement are:
- Improved continuity between planning and construction teams so that those who secured the consent have a close role in implementing it. Amongst other things, this may help militate against the ‘throwaway commitment’ made just to get across the consenting ‘finish line’.
- Recognition at board and finance level that construction and implementation budgets and timescales must be cast in realistic cognisance and appraisal of planning commitments, what they involve and in recognition of other legitimate constraints.
- Similar recognition at project management level.
- Improved accountability, and individual and corporate responsibility to the environment as a universal ethos, not merely as something to put in PR literature.
- Ensuring implementation teams are properly informed, resourced and monitored, and that projects are costed on a realistic and representative basis. This would avoid situations where construction managers feel unsupported and are encouraged to cut corners or turn a blind eye to out-of-control contractors in order to achieve unrealistic targets.
- Better resourcing of regulators and planning authorities by Government or by developers via CIL-type levies that are ring-fenced to the project. The latter may be justified by cost- benefit analysis of pre-empting problems versus cleaning up afterwards, and could be set on a sliding scale relative to the scale of the development and the sensitivity of the development site and adjoining areas. This will only work if regulators are sufficiently empowered – ‘Planning Performance Agreements’ that ostensibly perform this function often boil down to little more than a graduate seconded into a big development organisation with little incentive or stomach to put the job above the risk of making themselves unpopular.