Managing Landscape Quality within the Existing Legislative Framework

Abstract
The principle legislation available at local authority level is the family of Planning Acts
from 1963 onwards. They provide us with both policy making and operational role for
managing landscape quality.

The policy making role is provided through the Development Plan system and the
main operational role through the Development Control system.

The legislative framework for policy making at local level is very broad, but it exists in
the vacuum of a national integrated landscape policy framework. Each local
authority defines its landscape of value and policy proposals entirely in accordance
with local criteria and objectives.

The operational arm of the planning system is primarily through the development
control system. This is limited to dealing with what is defined as "development".
Many activities which impact on the landscape are outside this definition and are
therefore not part of the development control system.

A broader range of policy instruments are necessary at local level to manage and
facilitate the management of the landscape resource. These may require legislative
changes, but most certainly will require cultural and skilling changes in local
authorities.

In summary, local landscape policy making must sit within a national policy
framework, and local operational tools must be widened beyond reliance on the
development control system, to focus on more proactive integrated management of
the landscape in its broadest sense.

********

My presentation is built around the comments I gave to Terry in response to his Survey and
they are included in Terry's compilation of the survey replies, which is in your information
pack.

My presentation is very much based on my perspective as a spatial planner in a local
authority, Donegal County Council, in what is a predominantly rural county possessing some
of the highest quality scenic landscapes in the country. And I deliberately use the word
spatial planner rather than land-use planner, because I believe the term "spatial planning" is
much more than two-dimensional and that it recognises that economic, social and cultural
activities interact with land to shape our space and proactively interacting with the
management and development of these activities is very much a part of managing landscape
quality.

I was very interested in hearing what the previous speaker had to say because that is a very
practical example of what I mean by that - you have to interact with farmers and the way
they function, in order to see the implications for landscape quality.

So my presentation, starting from that perspective is built around the principal legislative
measures available to the local authority which are those available under the family of
planning acts dating from 1963. There are two key arms to planning - what I call the policy
making arm through development planning and there is policy implementation, primarily
through development control system. There are also other specific action measures such as
special amenity orders, conservation orders, tree preservation orders etc.

At a policy making level, (and my presentation will focus on those two arms - policy making
and policy implementation), the legislative framework is very generous in relation to
landscape! It allows each local authority complete freedom to define the range of landscape
types and the quality of same within its jurisdiction and to propose whatever range of policy
options it sees fit.

The recent habitats directive has set certain boundaries to that freedom, but by and large the
situation is as I say. I regard this freedom in the policy making area as a very mixed blessing.
It allows local innovation, it allows local responses and the recognition of unique local
characteristics. On the other hand, if you take into consideration that we have, I think, 28
county councils producing county development plans, each one of those has total freedom to
produce its own policy prescription for landscape protection within its area of jurisdiction, so
that if you were to take a bird's eye view, looking down on what emerges from that you will
get a very varied kaleidoscope of categories, of names, terminology and policy proposals.
This, in part reflects the diversity of the landscapes within which we live, but more
importantly it reflects the fact that local landscape policy making occurs in the absence of a
national landscape policy framework, and this is of course the theme of this Forum and
previous Fora by Landscape Alliance.

The existing planning legislation is, I believe, quite adequate to allow for a much greater
integration of national and local landscape policy goals and objectives. I am referring in
particular to the fact that the Minister for Environment and Local Government may issue
planning policy directives to each planning authority, but in the almost sixteen years since
that legal power has existed, there have been only two policy directives issued to planning
authorities and both of those related to retail activities.

My point is that the legislative framework at a policy making level is very wide in terms of
making local policy. There is also a mechanism there to allow local authorities to incorporate
any national policy directives provided national policy has been formulated.

The development of a national policy framework may in itself give rise to some legislative
changes. I personally believe that we must move more towards the approach of the I.U.C.N.
in recognising a range of protected areas and a degree of protection within them. Some
additional forms of designation may emerge from this, particularly a category of protected
landscapes and this in turn, may give rise to even further legislative changes. But until the
policy is actually formulated, we cannot really second-guess this.

The issue of compensation constantly arises at local policy making levels. Well, I would
prefer to see an approach which built on the range of support systems which are now coming
into play and that have been referred to earlier this morning, the REPS, the assistance
available under the S.A.C.s and I would prefer to see those utilised in a more proactive
landscape management policy driven approach, rather than largely focusing on the more
regulatory aspects and the whole question of compensation.

Moving on to the question of the development control system, which is the other arm of the
planning legislation. That is the principle instrument for implementing policy, but it is
limited by the fact that the development control system only comes into action in relation to
what is termed development under the planning act, and there are very many activities which
impact on landscape that are outside the definition of development as it is at present defined.
Examples include most turf cutting operations, forestry below the 75ha limit, aquaculture
activities below the high water mark, erosion by people and by animals. These are all forms
of activity that impact very much on our landscape and they do not fall within the definition
of development.

The way forward, I believe, at the operational level is to considerably broaden the range of
policy instruments which local authorities may use to achieve their policy objectives. In
essence that we need a proactive resource management focus, rather than development
control, as such, which is in itself reactive in that it only comes into action when a planning
application is received. This will require quite considerable cultural and skilling changes
within local authorities as they move towards a more holistic approach to implementing
policy and forming partnerships and other working arrangements with the relevant agencies,
D£chas for example and Teagasc. The issues that Bill Roper raised with the idea of Land
Trust - these are similar types of partnership to what I have in mind, proactive approaches to
landscape management which I believe at the operational level are part of the way forward.

The extent of legislative changes which made it easier to achieve this are not quite clear. The
1991 Local Government Act gave local authorities very wide powers to become involved in
all sorts of activities in the interests of their community. I know in Donegal when we made
our submission to the Review of the Planning System, we specifically asked for certain
changes that would allow local authorities to become more proactively involved in this type
of management of resources, because we see this as an addition to the development control
system which is very badly needed.

Examples of management issues which will arise, include for example managing the impact
of visitor numbers on vulnerable landscapes; or managing access to uplands - anyone who
visits Donegal from a hill-walking point of view will realise that access to Errigal and access
to Slieve League are now extremely heavily eroded by visitor numbers. There needs to be a
management agency mechanism to work both for the land owner and with D£chas in order to
restore the eroded landscapes in both of those areas.

Managing the visitor numbers to our offshore islands is something we are becoming very
conscious of as Tory Island off the coast of Donegal gains a very large and modern new
harbour, so there will be opportunities there for ferries, privately operated, to bring more and
more day trippers to the island. These are all of a type of managing our resources which I
believe are part of what a local authority has to move towards in the future.

The dichotomy lies in the fact that at local policy making level we have very wide flexibility,
very wide freedom, but we do so in a vacuum in the absence and the vacuum of a national
policy framework. So for me, what is particularly needed at policy making level is the
national framework rather than at this point in time more legislation at policy level.

But at the operational level I believe we have to expand considerably on the traditional
development control system and incorporate much more flexible proactive, integrated
management of the landscape in its broadest sense, and the investment should be not just in
the natural landscape but also the built environment.

Q & A Session

Terry O'Regan: Thank you very much Gaye, there was so much in what you said in such a
short time that I think we could stop everything else and talk just about that. It points up the
value of what the Forum has been doing and the value of the Survey, and I think you used the
words proactive landscape management. This really brings up the whole point of looking at
our landscape as a resource from urban, suburban and rural aspects, rather than a potential
development site or a site with potential for exploitation and it's a huge change in mind-set
that we have to go through and it bears out the conclusion of the Survey that we carried out.

The replies we received demonstrated that there is a legislative framework in place, and in
that context I have to acknowledge that while we have been calling for landscape policy since
1994, there has effectively been a landscape policy in place by default. No-one would admit
to it, though each letter from the ministers will tell you there is no provision for landscape
policy, but obviously there is a policy with very limited application. There is a legislative
framework in place at the various levels which has the potential to impact positively on
landscape quality.

There is also the implication within many of the replies that some of the existing legislation
has not been as fully utilised as it might be and this has come out in the two or three papers so
far this morning. However, there is a strong indication that there is a need to develop our
knowledge and awareness of landscape quality to a higher level and that guidelines and more
detailed surveys of our existing landscape are required, which again links with what Gaye is
saying. There would appear to be an inadequate framework in place within which existing
legislation can function effectively. There is a strong level of support for the value of
interdepartmental /interdirectorate approaches when dealing with landscape issues, and
contrast this with the fact that the only interdepartmental meeting that took place in this
country on landscape policy, met on 30th April 1997. and it has not been reconvened since. I
think this is a great tragedy and a sad reflection on the limited vision of so many of our
politicians that when they come into power there is a juvenile unwritten rule that you must
ignore everything that came before in so far as you can and you must reinvent the wheel over
and over again.

This is so sad, it's so wasteful, it's anti-constitutional I would suggest to you because the
government is put in place by us and financed by us to utilise the resources of the country as
effectively as possible in the interests of the people of the country and to continually reinvent
the wheel in this way is to show contempt for our intelligence and our taxes. It applies to all
parties to one degree or another over time and it's a tragedy that so much of how we approach
government is so wrong. I am inclined to suggest that the present structure of government in
this country is actually out of date, obsolete and needs total review. It no longer reflects
democracy.

The Survey did a rather valuable exercise in focusing attention on the legislative framework.
I am sure these letters must be a great nuisance arriving on people's desks, and then they are
referred on down the line, until someone, somewhere finds it of significance and that's the
important thing. Those whose hands it has passed through have suddenly had to think in
some fashion about what was happening to our landscape and the potential value of the
interdepartmental approach.

The whole exercise is to prepare the way for the development of a more improved overall
integrated landscape policy, appropriate to the rapidly changing landscape of today.

I believe furthermore that the survey will assist in identifying weaknesses within the existing
framework. This is important, the framework is there, we may not have to throw the whole
lot out, but we should look at it, analyse it, find out where its weakest points are and start
rebuilding from that, as part of the formulation of an overall landscape policy.

I would suggest to you in relation to the legislative framework that our constitution should
reflect the policy of the people of Ireland vis a vis the island of Ireland and indeed the world
in general and its role within it. It's a terribly limited constitution because it was written at a
time when we were coming out of being colonised and reflecting a time when people were
penalised, but there are two very important articles, to which I would draw your attention.

Consider Article 43 which I have referred to before, and which has to do with a person's
private property balanced by the references within it to social justice and the common good.
And under personal rights, the government are required by the constitution to guarantee the
personal rights of each of us. I tried to get a constitutional lawyer here to speak at the Forum
on this area, because the cost of going to law to prove such arguments is so high.

I would also raise 'the right of the unborn' which has been very controversial, and I would
ask does the right of the unborn being guaranteed by the state extend to the unborn of all
future generations? Because if it does they are entitled to a clean environment, clean air,
clean water, clean earth and a biodiverse landscape now and into infinity..

Now that would be an interesting basis for a constitutional challenge in relation to
environmental/landscape change.

That's a clause that you can apply for a long way into the future - the unborn need not be a
combined sperm and egg, it need not even be the uncombined sperm and egg that can be
considered, just the potential unborn. It's worth thinking about.

Roger Garland: I represent Keep Ireland Open. Both speakers made various passing
references to REPS schemes - I find this quite common. Most people listening would say
'oh yes, that must a good idea', but I would like to disabuse those people here that REPS in
upland areas is anything but a good idea, in fact it's a total disaster for the landscape and for
the ecology.

If you will just bear with me for a moment, I know it's a little off the agenda but I think it is
important to lay this lie that REPS is good. It may be good in lowland area, but in upland
areas, it has been responsible for the division and fencing of commonage, you have these
wretched sheep fences going up all over the place with barbed wire on the top, which no-one
can get across - there are no stiles. The latest solution of course, where there are too many
sheep on the hills, is to bring them down in the winter and put them in these wretched slatted
sheds which are creating pollution, are a visual eyesore and usually do not require planning
permission because they are below the agricultural footage required.

So let us be quite clear when you look at REPS one should look at it critically and not just
accept it as being a good thing. I think this conference should be made aware of that.

Cllr. Alex Perkins: I would like to go back to the paper presented by Dr. Dillon, especially
about EISs. She mentioned just briefly in her address that developers have to provide the
EIS. Now usually the developer gets a consultant to do it. I have read through dozens of
EISs and I am not satisfied with the contents of most of these. Or perhaps not so much the
contents, as what is omitted from them.

The objective of the developer is to get planning permission. He is paying the consultant to
do an EIS, in other words the consultant is his servant and I have a feeling that anything
which would interfere with him getting his planning permission will be omitted or it will just
be glossed over in the EIS. And unless individuals, organisations or other people that know
the area can vet an EIS I don't think it can be vetted by the Local Authority.

The County Council has a certain amount of time in which to make a decision on an
application. They do not have for example botanists and entomologists or zoologists etc. to
vet the environmental impact statement.

So it's just a document which is not really examined and there is nobody capable of
examining it.

I would like to ask Dr. Dillon if she would go along with me in so far as I think there should
be an independent body established to prepare EISs and the fee from the developer goes to the
independent body. If, for example there is an EPA or some other alternative instead of going
to the consultants, we would have an EIS which would be independent and upon which we
could depend, the Local Authority could take it as read that what they are reading in the EIS
is fact and that it is comprehensive. It would also be an advantage to the developer in so far
as if it was properly done it could not be challenged as a lot of EISs are now by
environmentalists and the whole process would be shortened.

Response[Sara Dillon]: I think it's a marvellous idea, far more enlightened than what's
actually in the legislation. Unfortunately it's the directive itself which suggests that the EIS
should come from the developer and I think it's a serious conceptual error.

Given that it is in the directive, I didn't bring a copy of the directive so I can't pull out the
exact wording, but property developers would squawk if they felt that they were to be
disadvantaged. Everyone would discover ways of enforcing European law in a negative sense
if money interests were involved. Though perhaps alternatively, even given the consent of
the directive it might be possible for a substitute mechanism to be set up along those lines,
perhaps there could be some consultant to suggest to the local authority what must be in the
document and perhaps a minimum standard of investigation or something like that.

I agree fully however with the general thrust of what you said.

Erik van Lennep Hyland: Two points that are related spring from the first two presentations.
One has to do with the whole process of planning and permit granting which has continually
annoyed me in the United States and it seems like the same situation exists here. What we
really need in my opinion is for some kind of documentation or proof that we need the
development proposed to proceed in the first instance! I think about how the pattern in the
United States is for the best farmland to be continually paved and turned into shopping
centres. It is very frequently the case that after one centre is built in an area, that a few years
later the same corporation will come and build another centre which puts the first one out of
business because there simply is not the need, nor the capacity to support an additional
shopping centre in this area, but you can't farm the asphalt of the redundant centre!

So clearly there is a necessity for the developer to prove that there is a need for that
commercial development, or that new housing project. This leads to the second point, and
that is the role of education in the longer term resolution of all this, because both Sara and Bill
commented about the almost standard conflict which is seen between environmental interests
and farming interests and between environmental interests and business interests, but if true
education was really happening then this deeper division, which I think is basically the
common good versus the rights of private profit, would be addressed.

Stephanie Bolton: I live in West Cork. When Bill Roper is talking about farmers planning
for the future I was a bit concerned, because in my experience of West Cork farmers they are
not interested in selling land as housing sites, they are more interested in cutting down trees,
taking away walls, and if they see someone from the Land Trust coming along and offering
them thousands of pounds not to build on their land they will just rub their hands with glee
and I would like to know more about the Land Trust's goals, in that I think the mindset of the
Irish farmer and the mindset of the American farmer could be quite different. I think
pressures on land development might be different in Ireland and I would love to discuss that.

Response (Bill Roper): In Vermont when the farmer sells his or her development rights they
impose restrictions on their property and those restrictions embody almost a code of farming,
something that is similar to some of the requirements in REPS but are actually a lot more
restrictive, a lot more demanding of the farmers and so in that document there are a variety of
safeguards that prevent a farmer from taking the money and using that money to actually
increase the adverse impact on the landscape.

Your concerns are very real, there are farmers in Vermont as well that try to take that
approach, but within the document itself there are typically enough protections and
restrictions so that that which you fear can't happen.

Tony Cohu: Just three brief points, one on the question of E.I.S.s and E.I.A.s. I think the
suggestion that the cost of the E.I.S. cannot be, if you like, taken on board by anyone else but
the developer has to be examined. and we have made a suggestion in fact that it's the Planning
Authority who should commission the E.I.S.s instead of being the assessing authority. In fact
the Cork Local Authority have already done this in relation to the half a dozen or so wind
farm proposals that have come into West Cork in the last year or so. They have looked at
E.I.S.s which were submitted with each application and they have then gone to a separate
consultant to look at those E.I.S.s and also to look at the proposals, so they are in fact taking
up that idea (themselves) of looking at the E.I.S.s independently.

I don't see why costs then can't be charged to the developer as part of the normal planning
process.

Secondly in relation to the Land Trust, you should know that there is a scheme in England
where farmers who have farms in areas of outstanding scenic landscape get tax breaks. Now
is that a possible revenue source for a Land Trust, because it would seem to me that the whole
idea of a Land Trust will rise or fall on the matter of finance.

The third point, in relation to what the last speaker was saying is that I would like to ask her
how, as a Local Authority, they can incorporate the National Sustainable Development
Strategy into their Development Plans and into development control, because it's there, we
have used it as a basis for making appeals, it's the first plank in making an appeal to An Bord
Pleanala and An Bord Pleanala have accepted sustainable development strategies as
legitimate planning issues, so I am interested to know how the Local Authorities can
incorporate that.

Gaye Moynihan: The way to incorporate sustainable issues is through the Development Plan
process and that is the approach we have taken. I am not sure how effective that is going to
be, because the word sustainable, as Terry said at the outset, is a word that can mean many
things to many people and I think until we have more precise indicators of sustainability,
which can actually be incorporated into policy documents, we will not begin to get real
sustainability whatever it may mean. I am not over enthusiastic about wonderful words,
'sustainable this and sustainable that'.

Pippa Pemberton: I live in West Cork, for a couple of years I have been involved in
professional archaeology in England and I wish to voice a word of caution - with regard to
developers, E.I.As and E.I.S.s much can be learned from England where a serious situation
has developed where it is now standard practice for archaeologists to be tied by
confidentiality clauses that they will not tell anybody about the archaeology they are doing for
an E.I.A. for a pre-development fight and they are instructed to pretend to be a tree if anybody
asks them what they are doing, inferring they are not an archaeologist at all. I am very happy
to see the situation is different here arising from my involvement in professional archaeology
here, but a situation is starting to evolve where this is now about to happen and this is
something that needs to be looked at, in relation to the involvement of the developer in the
pre-development assessment.

Gaye Moynihan is a Senior Executive Engineer in the Planning Department of Donegal
County Council.