Introduction

Recent decades have seen the emergence of a very widespread consensus that ‘public participation’ is a crucial element of good and democratically legitimate environmental decision making. Consensus around public participation can be seen at every level, international, regional, national and local. In Chapter 1, we discussed the public values inherent in an environmental decision, which mean that ‘experts’ have no monopoly on judgment. Public participation in decision making is very often put forward as a way through the tension between technical and popular input into decisions, and has become a conventional element of any discussion of ‘good governance’ for the environment. In the words of Sherry Arnstein, ‘The idea of citizen participation is a little like eating spinach: no one is against it in principle because it is good for you.’ Notwithstanding agreement on its desirability, however, the precise meaning of ‘public participation’ remains unclear. We might include the most basic form of political participation, voting in elections; this can be contrasted with highly visible unofficial forms of participation, such as mass public demonstrations, protests and civil disobedience. Sherry Arnstein's famous ‘ladder’ of citizen participation considers different levels of participation between these two possibilities.

Preface to Part V

In the preceding Part on regulatory mechanisms we examined the evolution of legal responses to industrial pollution. We observed that although the licence remains at the heart of much environmental regulation, other instruments have become increasingly important. This deployment of a range of instruments is an expression of sustainable development, particularly ideas about extending responsibility for environmental protection to various agencies, individuals and companies. In this Part we similarly explore the range of legal techniques employed in environmental regulation, but in the markedly different context of controls over land use and development. In Chapter 12 we discuss the history of land use controls, before turning in Chapters 13 to 16 to specific areas of current law and policy relating to land use, followed by a contemporary case study on wind farm development in Chapter 17. We emphasise that the focus of this Part of the book is the environmental protection aspects of land use controls, with the objective of exploring the regulatory techniques employed.

The licence remains the ‘instrument of choice’ in town and country planning (discussed in Chapter 13). In contrast, the controls employed to regulate the use of land in ecologically sensitive areas have been more diverse, and generally of a voluntary nature. The key example of this type of control is the management agreement. This form of regulation, commonly used in the case of land designated for special protection (discussed in Chapter 15), tends to support self regulatory and voluntary approaches to regulation.

As we explained in the preface to this book, environmental law demands that we engage with the context within which the law is developed. In this Part, we locate modern environmental law within contemporary discourses about the environment, and begin to identify the boundaries and contours of the subject. In Chapter 1, we emphasise that the subject matter and content of environmental law has traditionally been set by a scientific agenda – what we refer to as the ‘scientific paradigm’. We also discuss the prospects for a change in direction in environmental law, away from scientism, in order to embrace more wide-ranging values and concerns, including various ethical positions and philosophies about the relationship between humans and nature. This is a slightly unusual starting point for a book primarily, though not entirely, about environmental law. However, our teaching of the subject for many years has convinced us that a contextual and critical approach to studying this field of law cannot be sustained without questioning the dominance of a scientific approach, for example by considering different and opposing visions of human/ nature relations. In addition, various tenets of ecological thinking are slowly influencing mainstream environmental law, leading us to ask about the prospect of this body of law shifting in a more radical direction. One important aspect of this is the now accepted need to broaden significantly and enhance ‘real’ public participation in environmental decision making, an issue taken up in Chapter 3.

Preface to Part IV

In this Part we examine a range of different approaches to regulating for environmental protection. Rudimentary forms of regulation were developed in response to the pollution problems of industrialisation, and these provided the template for modern environmental regulation. In Chapter 8 we discuss both the Victorian origins of pollution control measures, and the development of the modern institutional architecture of pollution control. From the late 1960s, in response to the public and political attention turned to environmental matters, governments developed elaborate administrative systems and public law measures to control environmental degradation. Direct regulation by a government body was seen in many cases as the only rational government response to environmental degradation at this time – that a government response was required went almost without saying. It is this sort of direct government regulation, for example through a licensing regime backed up by criminal penalties, that most people have in mind when they think of ‘regulation’. The precise meaning of ‘regulation’ is, however, more problematic.

Introduction

In this Part, on the legal mechanisms for controlling land use and development, we have traced the roots of a division between controls over urban and country areas to the post-war land settlement (see especially pp. 479–87). We explained that the reason for the exclusion of agricultural and forestry activities from the scope of the Town and Country Planning Act (TCPA) 1947 (the title of the Act being something of a misnomer) was the assumption that there would be no conflict between the production of food and wood, and the protection of the environment. This has clearly proved not to be the case. In this and the next chapter, we focus upon the current state of law seeking to secure the conservation of nature, applying mainly to the countryside and developed primarily in response to what William Adams calls the ‘industrialisation of agriculture’. The consequences for nature of this phenomenon, in particular the fragmentation of natural areas, are described below. In the following passage, Adams also introduces the (imperfect) idea of designating areas of land for special protection, which constitutes the main legal technique in nature conservation law and policy.

Introduction

In this chapter we present a case study on wind farm development, reinforcing an idea of the planning system as a potential medium for sustainability. In discussing the law and policy relating to wind farms, we highlight the difficulties from a planning perspective of securing the support of local people and local planning authorities for this category of development – the frequently vociferous local opposition to such developments being at odds with central planning guidance in support of wind farm projects. This issue suggests the limits of the possible positive contribution of public participation to environmental protection. It is also a good example of the central difficulty facing environmentalism – tempering individual preferences or freedom for the common good (or encouraging communitarianism over individualism). Patsy Healey presents this as a central problem of modernity: ‘The challenge for public life in our present times is how to reconcile the individualisation of cultural identity with recognition of commonality between individuals with different frames of reference, as well as different interests, in ways which do not trap us in modes of thought and practice which suppress our individual capacity to flourish.’ The general nature of the problem suggests that the legal and policy methods aimed at securing support for wind farm development may well be applied beyond this type of development.

Introduction

Recent decades have seen questions of environmental protection become a significant issue for government, and part of mainstream public debate. Most jurisdictions now have government departments and independent agencies dedicated to environmental protection, as well as public interest groups committed to raising the profile of environmental issues. Whilst the need for environmental protection is virtually uncontroversial, however, the reasons for protecting the environment are rarely spelt out; in turn, and as foreshadowed in the Preface to this Part, the meaning of environmental protection, and the best way of achieving environmental protection, retain potential for real conflict.

Introduction

In the previous chapter we outlined a range of different approaches to environmental protection. The case of regulating agricultural biotechnology tends to highlight these contrasting approaches in a single policy context, in particular the potential for conflict between ‘scientific’ and ‘popular’ or non-expert forms of deliberation and decision making. We explore throughout this book the legal and policy dynamics of this area of regulation, beginning in this chapter with an introduction to the many ethical and practical dilemmas posed by genetically modified organisms (GMOs).

Biotechnology is variously perceived as the most frightening or most promising scientific development of the twentieth century; agricultural biotechnology has proved an extraordinarily fraught topic for environmental regulators over recent years.

Introduction

This chapter examines a phenomenon ‘so ubiquitous that we take it for granted: something that is legally mandated fails to happen. Deadlines are missed, standards are ignored or fudged, enforcement misfires.’ Simply putting the law in place does not lead by straight cause and effect to an improved or protected environment. Policy analysts and lawyers can misconceive the relationship between law and policy in the environmental arena, either seeing law as an ‘output’ of the policy process, or seeing policy as a precursor to law. This is nowhere clearer than in implementation and enforcement; policy decisions exercise a continuing and profound influence on the relationship between ‘law on the books’ and ‘law on the ground’.

Enforcement is what happens when regulated bodies fall short of full compliance with environmental law, but the question of ‘compliance’ is not straightforward. The definition of compliance is rarely obvious, but will be subject to discretion: think, for example, of the discussion of ‘best practicable means’ in Chapter 9 (pp. 359–62), and of the values inherent in much technical activity in Chapter 1 (pp. 40–7). In addition, it is rare in environmental law for there to be a moment at which compliance can be said to be ‘complete’: ‘The state of compliance is continuously changing. New companies are created and others go out of business, new technology or industries are introduced, markets shift, operational practices change and regulatory provisions are amended or updated.’

Introduction

In the previous chapter we introduced the idea that environmental protection and the regulation of land use and development are indivisible, through a historical account of legal controls and policies relating to land. The focus of this chapter is the significance for environmental protection of the current body of law and policy which provides the foundations of the planning system. In keeping with two of the main themes of this book – the move towards ‘integration’ (both of legal controls and of the consideration of environmental protection within a broader sweep of policy concerns), and enhancing participation in decision making – we analyse in particular the introduction of a system of integrated spatial planning by the Planning and Compulsory Purchase Act (PCPA) 2004 (pp. 522–9) and the apparent consensus in planning theory and policy on enhancing participation (pp. 530–45). We consider the strides that have been taken to open up decision making beyond the confines of expert opinion, so as to include local knowledge, and a range of viewpoints about landscape and the relative values of competing objectives. We also explore the implications for participation of the move towards spatial planning which will enlarge, but undeniably complicate, planning agendas.

Introduction

In this chapter we present the historical context of land use and development controls which, with those controls over industrial activities discussed in Chapter 8, constituted early environmental regulation. We include not just town planning but also controls over use and development in rural areas, and we trace the roots of the different legal treatment accorded to these: the licence in the case of town planning, and the dependence upon voluntary (and undeniably more lenient) mechanisms such as payments as part of management agreements in the case of countryside designations. The modern forms of these controls are then discussed in Chapter 13 on planning and environmental protection and Chapters 15 and 16 on nature conservation and biodiversity.

In keeping with our emphasis upon the influence of sustainable development upon environmental law, in Section 2 (‘Origins’) we highlight the continuity between the utopian and social movements which informed early town planning (and which tended to pursue a formative type of ‘sustainability’) and the challenges to this ethos during particular periods in planning's history in which economic regeneration and progress were more singularly advanced. The developmental phases outlined in Section 3 of this chapter – early planning law, the post-war land settlement, enhancing participation, entrepreneurial planning, and planning and sustainable development – provide a basic chronological framework and analytical markers for Chapters 13–17 concerning more current law and policy relating to land use (Chapter 13 on planning and environmental protection, Chapter 14 on environmental assessment, Chapters 15 and 16 on conservation and biodiversity, and Chapter 17 on wind farm development and environmental conflicts).

Nature and foundations of judicial review

The decision of a minister, local authority or other public officer or body may be challenged in court by recourse to the machinery of judicial review. Judicial review is to be distinguished from appeal, which is sometimes available as a means of contesting an administrative decision. Judicial review is the exercise of an ancient and inherent supervisory jurisdiction of the court, by which excess or abuse of public power may be restrained or remedied. On the other hand, appeal to a court against an administrative act is possible only where, exceptionally, provision for it is made by statute. Take, for instance, Quigly v Chief Land Registrar [1993] 1 WLR 1435. Quigly sought to appeal against an administrative decision of the Chief Land Registrar, but the court ruled that it had no jurisdiction to hear an appeal from such a decision. This ruling was upheld by the Court of Appeal. Hoffmann LJ remarked that ‘A right of appeal to the court is entirely a creature of statute’; there was no provision in the relevant legislation for a right to appeal against the decision in question. The judge continued: ‘This does not mean that the exercise of administrative powers by the registrar is altogether beyond judicial control. I should have thought that it would be subject to judicial review in the same way and on the same principles as any other public power.’

‘Successful constitutions and institutions’, says Ian Gilmour (Inside Right: A Study of Conservatism (1978), p 70), ‘are not mere pieces of machinery. If they work, it is because of the ideas and beliefs of those who try to work them.’ The British constitution, having evolved over centuries, does not embody any single constitutional theory. It is the product of a long period of kingly rule, parliamentary struggle, revolution, many concessions and compromises, a slow growth of custom, the making and breaking and alteration of many laws. Although we lack a general theory of the constitution, there has come down to us the idea of constitutionalism – of a constitutional order which acknowledges the necessary power of government while placing conditions and limits upon its exercise. The British version of constitutionalism has been shaped by a number of leading ideas or principles: some of these have crystallised as rules or doctrines of the constitution; others have influenced constitutional thought or have gained currency as explanations or justifications of particular features of the constitution. In this chapter we shall consider some of these commanding ideas or doctrines and their place in the modern constitution. We start with democracy and then move on to consider the sovereignty of Parliament, the rule of law, the separation of powers and accountability. It will appear that, at times, there is a conflict, or tension, between these ideas; between democracy, for instance, and parliamentary sovereignty, or between sovereignty and the rule of law.