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Part 3 - Chapter I: Articles 1-5 - General Provisions

Article 1 - Subject-matter and scope

Content

3.1 This is an important Article as it determines the scope of the proposed Directive and how other provisions are interpreted, even though it does not impose any express obligations itself.

Issues raised

3.2 This proposed Article places emphasis on protecting soil, preserving its capacity to perform soil functions, and preventing certain degradation processes. This raises an issue as to whether the needs of the current generation to make use of soil in the present are given adequate recognition.

3.3 No distinction is made between soil degradation processes that are caused naturally and those caused by human activities. The implication that "natural processes" need to be addressed raises issues as to the extent to which this must and can be done. Our initial view is that Member States will, under the proposed Directive, have some discretion as to the extent to which such processes need to be controlled when drawing up their programmes of measures, but we remain concerned about the way in which the wording could be interpreted possibly requiring us to address such processes when we consider this detrimental or unnecessary.

3.4 The definition of soil leaves it unclear whether riverbanks, riverbed sediment, lake sediment and coastal areas are covered.

Questions

• Q.1 What are your views on the scope of the proposed Directive, in particular the definition of soil and the soil functions which are listed?
• Q.2 Do you think the proposed Directive seeks the right level of protection for our soils?
• Q.3 Do you think it is important for Member States to address natural degradation as well as that caused by human activity?

Article 2 - Definitions

Content

3.5 This proposed Article lays down definitions of:

• sealing, relevant to the proposed Article 5; and
• dangerous substances (referring to a previous definition under Directives 67/548/ EC and 1999/45/ EC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labeling of dangerous substances), relevant to the proposed Articles 9-14 on soil contamination.

Issues raised

3.6 The definition of sealing relates to the permanent covering of the soil surface, it is unclear what "permanent" means and there could be a time limiting issue to this. Additionally, this definition does not appear to cover sub-surface sealing.

Questions

• Q.4 Do you have any comments on these definitions? Do you think it is important to clarify any other terms in the proposed Directive?

Article 3 - Integration

Existing EC/domestic legislation

3.7 The Strategic Environmental Assessment ( SEA) Directive ⁸, requires an assessment of the environmental impacts (including on soil) to be conducted, when drawing up certain plans and programmes which are likely to have significant effects on the environment ⁹¹⁰. Requirements under the proposed Article 3 broadly replicate this but also mention some sectors not specifically mentioned in the SEA Directive, including raw material extraction and climate change. As this proposal sets out a non-exhaustive list of sectors, the effects of all policies which may have an impact on soil will need to be considered and a decision made as to whether an assessment is needed.

3.8 The SEA Directive has been implemented in the UK in various ways including through the sustainability appraisal of planning strategies and local plans. Sustainability appraisal ensures that choices made during the plan making processes at regional and local level are based on clear evidence of their economic impacts, as well as those on society and the environment, which includes consideration of the implications for soils.

Issues raised

3.9 There is an overlap with the SEA Directive, which will mean two overlapping regimes that may have to be implemented slightly differently. This could give rise to complicated, potentially inconsistent regulatory approaches to assessing impacts of policies - where some policies will only be scrutinised for their effect on soils (unlike the holistic environmental assessment under the SEA Directive), and different consultation requirements may apply in different cases. For example, in respect of soils, it would be necessary to carry out an assessment in relation to a broader range of sectoral policies but there will be no duty to consult in relation to these policies. We are uncertain as to why it is considered necessary to add this duty in relation to the impact on soil but not other environmental media such as air and water.

3.10 Such broad sectoral coverage as proposed in the Soil Framework Directive may also mean that consideration of the impact on soils is carried out as a matter of course without sufficiently in-depth analysis. This may dilute the effect of the SEA Directive.

Questions

• Q.5 Do you consider there is a significant benefit in expanding the duty, as provided by the proposed Directive, to carry out an environmental assessment in so far as soil is concerned, so that it covers all other sectoral policies which may have a significant impact on soil? If so, which particular sectors of policy do you think impact on soil and need to be covered? And what are your views on leaving out the duty to consult in relation to these additional sectors?
• Q.6 What are your views on how this provision could be improved, for example, should it instead only refer to the SEA Directive in the recitals and include this additional duty in respect of soils only in respect of policies not already covered by the SEA Directive?

Article 4 - Precautionary measures

Content

3.11 This proposed Article sets out a very broad duty on Member States to ensure all "land-users" take precautions to prevent or minimise the adverse effects of any actions which can reasonably be expected to hamper significantly the soil functions in the proposed Article 1.

3.12 This proposal requires Member States to take measures, possibly in addition to those under the proposed Articles 8 and 9, in respect of agricultural and rural soils, as well as in relation to other sectors.

3.13 There is a lack of clarity in respect of several issues including:

(a) whether all soil pollution is covered by the proposed Article 9 rather than the proposed Article 4. If soil pollution is covered by Article 4 as well as Article 9, then pollution by way of air deposition might be covered by the proposed Directive.

(b) which activities, and what scale of activity, should be regarded as significantly hampering soil functions.

Existing EC/domestic legislation

3.14 The Environmental Impact Assessment ( EIA) Directive ¹⁰, as implemented in the UK, requires, in relation to projects above a certain scale, an assessment of the environmental impacts of the proposed project (which should include consideration of the impacts upon soil) before the consent is given. So this provision overlaps with the EIA, in relation to projects above a certain size, but also brings in similar requirements in relation to activities which do not amount to projects and possibly also to projects below established EIA thresholds if they "significantly hamper soil functions".

3.15 There is a wide range of legislation at an EC and domestic which covers such activities from regulation of waste to land, use of pesticides and veterinary medicines. Domestic legislation has also been introduced to implement CAP cross-compliance ¹¹. This lays down a broad set of measures for farmers and land managers who claim the Single Payment or Single Farm Payment in Scotland.

Issues raised

3.16 As drafted this provision requires an assessment, such as under the EIA Directive, for activities and other projects without setting clear de minimis levels. It is likely therefore to require extensive work to decide which activities must be regulated and also in terms of enforcement.

3.17 There is a lack of certainty as to when an activity should be regarded as "hampering significantly the soil functions" and exactly which land-users the proposed Directive intends Member States to regulate.

3.18 There is also a lack of certainty as to whether the proposed Directive might be interpreted as requiring action to be taken to prevent rather than simply minimise adverse effects, as well as the extent to which such effects must be mitigated. This may mean that certain activities will have to be restricted even where their impact is low but could be considered 'significant'.

3.19 In respect of the agricultural community, revision and tightening up of CAP cross compliance type measures to cover those outside the CAP might also be needed.

3.20 There are some additional questions such as whether this proposed Article covers soil pollution. If so, this may require restrictions in relation to deposition from air pollution.

3.21 The relationship with issues already addressed by other legislation is also unclear.

3.22 This provision could however provide a means of ensuring comprehensive protection of our soils. It may be that clarity and specific exceptions are what is needed.

Initial Regulatory Impact Assessment - costs and benefits

3.23 We have not yet identified the costs and benefits of this provision but it is considered that the administrative burden on Government in terms of having to legislate to cover many sectors, as well as to inspect and enforce could amount to several million pounds per annum. The costs depend on exactly what additional measures will be required under this provision. This is still under consideration.

Questions

• Q.7 There are a number of ways in which this proposed Article could be adapted. Please let us have your views on how this provision could be amended. Some possibilities you may wish to consider are:
• • inclusion of an appropriate de minimis threshold, in terms of area of land affected.
  • leaving it to individual Member States to decide which land-users are covered and which activities should be regarded as likely to result in significant harm. This may mean differing levels of care in different Member States but with more flexibility to deal with relevant local issues that may change with time.
  • leaving this outcome to be achieved by the EIA and other Directives, and simply requiring Member States to encourage action by land-users more generally to minimise their impact on soil functions.
  • exceptions or limits to the duty to prevent or minimise, for example, because some uses serve important social or economic needs, and minimising adverse effects may be technically infeasible or involve excessive cost?
• Q.8 What activities, which are not already regulated in the UK, if any, do you consider may have a significant adverse impact on soils?
• Q.9 Do you have any comments on the issues we have raised, and on our initial analysis of costs and benefits?

Article 5 - Sealing

Content

3.24 This proposed Article requires Member States to take measures to limit sealing (defined in the proposed Article 2 as permanent covering of the soil surface with an impermeable material) or where sealing is carried out to mitigate its effects using construction techniques and products to preserve the soil functions as referred to in the proposed Article 1. The provision relates to the construction of buildings, roads, pavements and any other impermeable materials that cover the surface of soils. Hence, it is directly applicable to domestic planning systems and has repercussions for new development as well as soil protection.

3.25 The purpose of this proposal is to preserve the soil functions listed in the proposed Article 1, including in practice ensuring aquifer recharge, enabling water run-off to be filtered, reducing contamination risks to ground and surface water, reducing flood risk, and protecting good quality agricultural land and biodiversity. The proposed Recital 13 explains the reasons for the provision on sealing. In doing so, the Recital points to the impact of "urban sprawl" on soil functions and the need to promote brownfield development so as to reduce the use of greenfield sites.

3.26 Member States would be required to regulate sealing. This would involve limiting it, possibly by preventing some proposed developments or reducing their coverage. The proposed Articles 1 and 4 are important to the interpretation of this proposed Article. These suggest Member States should prevent or minimise adverse effects on soils. Where sealing does occur Member States should ensure the effects of sealing are mitigated; for example, through the use of permeable pavements and Sustainable Urban Drainage Systems.

Existing EC/domestic legislation

3.27 The Strategic Environmental Assessment Directive requires a formal environmental assessment of certain programmes and plans which are likely to have significant effects on the environment. This includes assessing the effect on soil, water and the interrelationships between these factors. In England, sustainability appraisal of regional spatial strategies ( RSSs) and local development documents ( LDDs) is required by the Planning and Compulsory Purchase Act 2004 and incorporates the requirements of the SEA Directive. This is where the content of RSSs and LDDs is tested and the implications for soils considered. Sustainability appraisal focuses on the full range of social, environmental and economic effects and integrates environmental concerns with the other pillars of sustainable development. Local planning authorities must determine planning applications in accordance with the statutory development plan which comprises development plan documents (a type of LDD) and the relevant RSS, unless material considerations indicate otherwise. Relevant and recent national policy, particularly where this points to a different decision than suggested by the development plan, can be a material consideration.

3.28 Projects which are likely to have significant effects on the environment are subject to Environmental Impact Assessment ( EIA). This involves an assessment of how the proposed project will affect certain aspects of the environment including soils. Development consent for a project subject to EIA cannot be granted without the decision-maker first taking into account the environmental information before them.

3.29 In terms of the specific soil functions which this provision seeks to protect, the Water Framework Directive requires Member States to protect the quality of ground and surface water, and the quantity of groundwater. In the UK, one of the means of implementing this might be to introduce measures to promote sustainable drainage systems to manage run-off from roads and buildings. This is a valuable role in preventing the flow of pollutants, which may include soil material, to surface waters.

3.30 The proposed Floods Directive requires Member States to develop flood risk management plans for areas considered to be at significant risk of flooding. This includes establishing measures and objectives for managing flood risk, focusing on reducing the potential adverse consequences of flooding and/or reducing the likelihood of flooding. Amongst other issues, flood risk management plans will need to take into account the environmental objectives of Article 4 of the Water Framework Directive (environmental objectives) and soil and water management. Negotiations on the Floods Directive have concluded and formal adoption is expected in the autumn, from which time Member States will have two years in which to transpose its provisions.

3.31 To implement the Habitats Directive and to meet domestic biodiversity targets, planning authorities already have specific responsibilities on biodiversity, and should therefore already consider implications of sealing for this soil function.

Issues raised

3.32 To a large extent this provision replicates existing environmental legislation including that on water and biodiversity but it goes further by specifically requiring sealing to be limited or mitigated. The provision does not make clear how far Member States must go to limit sealing or the scale of development to be affected. This lack of clarity and the potential impacts on desirable and sustainable new development causes us concern.

3.33 As drafted, this Article does not recognise that soil sealing can arise from socially and economically beneficial development. Equally, it does not recognise the contribution sealing makes to achieving environmental outcomes through developments such as waste water treatment works or wind farms or flood prevention schemes. This proposal could have a significant impact on new development on any site, brownfield or greenfield, where there is soil, even where the development is not automatically ruled out. This would arise through adding to its costs (and viability) by requiring specific designs and materials, and by requiring additional studies which may delay consent procedures.

3.34 There is no de minimis in terms of physical area in the provision so it could affect very small developments such as the paving over of front gardens which currently fall within the scope of permitted development rights which permit certain small scale developments without the requirement to submit a planning application.

3.35 In terms of the preference for brownfield development, the UK already has a policy of encouraging development on brownfield site. For example, national planning policy in England is for local planning authorities to make effective use of land by re-using previously developed land, with a national target that at least 60% of new housing should be built on such land.

3.36 Overall, we are concerned that this proposed Article would have a significant effect on all development and have major implications for control mechanisms currently in place. Taking England as an example:

• provisions may have to be applied to small developments, such as extensions to domestic property and paving in front gardens, currently within the scope of permitted development rights ( PDRs). These permit small scale projects without the requirement to submit a planning application. Reducing the scope of permitted development would significantly increase the number of planning applications dealt with by Local Planning Authorities ( LPAs), the time taken to do so, and the burden on those required to submit these.
• the provision would lead to the loss of some development land, with consequential effects on house building, hospitals, etc, unless they are to be built on brownfield site, because soil sealing provisions are likely to mean that certain land can no longer be developed, and to increased construction costs if more expensive materials and construction techniques are needed to mitigate the effects of soil sealing.

Initial Regulatory Impact Assessment - costs and benefits

3.37 We have not been able to quantify these as yet but key points to note are as follows:

• Less flexibility for Member States on use and development of land in accordance with the principle of sustainable development. This could mean that otherwise suitable development land could no longer be used. This would have adverse consequences for the sustainability of communities, including on the affordability of housing.
• As drafted, the Directive would increase the number of proposals which require the submission of planning applications. In aggregate, this would be costly in terms of the time and resources required to make them, and the extra demands on the administration of the planning system.
• Reducing sealing of soils can have some environmental benefits, through the protection of particular soil functions. For example, if members of the public wishing to pave drives and gardens required planning applications, the occurrence of such activities might be reduced, thus decreasing run-off rates and reducing flooding, although as discussed above such a measure would significantly increase the burden on LPAs.
• It could also strengthen protection for biodiversity, soils for food and fibre production and green space. However, the issue can be complex as developments requiring sealing can, as already mentioned, bring both environmental and social benefits, for example, through the construction of a sewage treatment works or a hospital.
• Construction costs may increase as the materials and construction techniques required to mitigate the effects of soil sealing may be more costly than standard techniques.

Questions

• Q.10 Do you consider there to be significant benefits in having new EC legislation that deals with soil sealing? If so, what are the benefits and do they in your view exceed the potential costs?
• Q.11 Do you think there would be value in amending the draft Directive, for example, to:

1. make it clear that Member States in considering the need to limit soil sealing should do this as part of their overall consideration of a proposed development's environmental, social and economic impacts;
2. provide for exceptions to the requirement to limit sealing, for example, where the proposed development/sealing serves an overriding public interest;
3. insert de minimis provisions in line with the thresholds in the Environmental Impact Assessment Directive?

• Q.12 What are your views on amending this provision so that it only requires mitigation of new soil sealing through use of permeable construction materials?
• Q.13 Do you agree with our concerns and our assessment of the costs and benefits as set out in our initial RIA?

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