Written Evidence to the Richard Commission by Sue Essex AM, Minister for Environment

Evidence for the Environment Portfolio

Annex 1

There is a considerable variation in the extent to which the Assembly has devolved powers in these areas, since the nature of the legislation varies widely. In planning, for example, the primary legislation gives broad powers and important policy is determined by secondary legislation and guidance. At the other end of the scale much of the environmental protection field is governed by detailed European regulation, leaving limited scope for exercising different policy choices.

My responses to the questions illustrate this, supported by Annex 1 which summarises the powers available and Annex 2 which lists functions delegated to the Environment portfolio.

The questions

The Assembly’s powers include direct responsibility for motorways and trunk roads in Wales, and general grant aid mechanisms to local authorities’ highway schemes and transport plans including public transport, road safety, walking and cycling and also to fund directly private sector developments.

Trunk road construction and maintenance powers generally stem from the Highways Act 1980. The Assembly is engaged in some secondary legislation associated with the New Roads and Street Works Act 1991. Together these give comprehensive powers to build and manage the network. Other legislation such as Construction and Use Regulations, Traffic Signs Regulations and General Directions, are dealt with by central government on a UK wide basis and the Assembly is consulted. Powers are also available under the Land Compensation Act 1973, the Road Traffic Regulations Act 1984 and other statutes.

The Transport Act 2000 enhanced the Assembly's responsibilities enabling it to provide guidance to local authorities on the preparation of Local Transport Plans, bus strategies, and quality bus partnerships and to approve quality bus contracts. Local authorities have the primary responsibility for supporting bus and community transport services but against a background of a largely de-regulated market.

The Transport Act 2000 also enables the Assembly to set penalties for the Traffic Commissioner to implement and approval for proposals from local authorities on workplace or congestion charging.

The Assembly has power to provide Concessionary travel on buses, grants to support local bus services and community transport, grants to off-set the cost of fuel duty incurred in providing registered local services.

The Assembly's relationship with the Strategic Rail Authority (SRA) has been enhanced under the Transport Act 2000, requiring the SRA to consult the Assembly on matters affecting Wales.

The Assembly has powers to give grants to rail and inland waterway freight facilities where this would remove goods from travelling by road; towards the provision of industrial access roads in the Assisted Areas; and to promote sustainable forms of travel.

In accordance with the Local Government Finance Act 1988 the Assembly has powers to give transport grants to local authorities to fund integrated packages for bus, cycling and walking. Funding can also be given to organisations and individuals to promote road safety and sustainable forms of travel.

Development of planning policy of specific relevance to Welsh issues is by both administrative and (secondary) legislative means. The main framework of powers and functions are set out in the Town & Country Planning Act 1990. This enables the Assembly to set the format of development plans, to decide planning appeals and to call in planning applications to determine itself. These powers in turn give force to the Assembly’s statements of planning policy. There is power to issue strategic planning guidance, a power to 'call-in' a draft Development Plan, and a range of powers in relation to setting the framework for dealing with applications for planning permission and the handling of associated appeals. In addition there are default powers to take over local authority planning functions or revoke planning permissions.

The Assembly Government is also committed to preparing a spatial plan for Wales. At present this is being prepared under Section 40 of the Government of Wales Act 1998 which permits the National Assembly to do anything which is calculated to facilitate, or is conducive, or incidental to, the exercise of any of its functions.

Both the UK Government and the Assembly Government have recently consulted on proposals for significant changes to the planning system, which would require further primary and secondary legislation to implement.

The majority of Secretary of State powers and functions contained in primary legislation relevant to my environment portfolio have now transferred to the Assembly. In general, those powers and functions have transferred on an ‘all Wales’ basis, the main exception being those associated with the licensing and regulation of the water industry (which have transferred in relation to the areas of water undertakers operating wholly or mainly in Wales). Much of the policy operates within the framework of European Directives.

Listed in the Annex are what I consider to be the more important of those powers with regard to the development of environmental policies. They include:

My portfolio includes responsibility for a wide range of environmental and countryside policies including access to the countryside and sponsorship of the Countryside Council for Wales and the Welsh National Park Authorities.

A range of legislative powers are available to me to influence and direct environmental policies in Wales, as set out in the Annex.

With very few exceptions, functions vested in the Secretary of State in relation to nature conservation are vested in the National Assembly in relation to Wales, either under the Transfer of Functions Order or directly by primary legislation.

Much of the statutory framework for nature conservation derives from international obligations, notably under the EC Birds Directive (79/409/EEC) and the Habitats and Species Directive (92/43/EEC). The National Assembly is designated to make subordinate legislation under the European Communities Act 1972 for the purposes of implementing most obligations arising from these Directives.

The Assembly does not have powers under the UK legislation that implements the Convention on International Trade in Endangered Species of wild fauna and flora.

Each Minister in the Welsh Assembly Government is responsible for sustainable development within his or her own portfolio, but I have the particular additional responsibility of championing sustainable development across government.

These responsibilities flow from section 121 of the Government of Wales Act 1998 (GOWA), which requires the Assembly to make and publish a Scheme setting out how it proposes to promote sustainable development in the exercise of its functions. We are also required:

I have responsibilities for the historic environment of Wales and all of the former Secretary of State powers and functions contained in primary legislation, which are relevant to this part of my portfolio, have now transferred to the Assembly. Cadw: Welsh Historic Monuments an executive arm of the National Assembly undertakes my responsibilities in this area on a day-to-day basis. Cadw was established to protect, conserve and to promote an appreciation of the historic environment of Wales and in addition to having a range of statutory duties Cadw also has a number of monuments of national importance in its care. Listed in the Annex are what I consider to be the more important of those statutory duties and powers to achieve the main objectives of our aims in this area. They include:

We have developed a framework of policies for developing an integrated and sustainable transport system in Wales. We set these out in the 'Transport Framework for Wales" published in November 2001. The Framework reflects other key strategies including the Assembly's Sustainable Development Scheme, Winning Wales and the development of the Spatial Plan.

Within the policies set by the Framework we have developed:

The Assembly issued guidance under the Transport Act 2000 on the preparation of Bus Strategies and used this opportunity to emphasise the role of public transport within the overall transport provision. The Act requires each local authority to produce a separate bus strategy; the Assembly is seeking to encourage the 5 regional consortia to do this in the context of regional public transport strategies.

Examples include:

Using powers under Section 40 of the Government of Wales Act 1998 to "do anything… to facilitate… the exercise of any of its functions" the National Assembly was able to establish a public investigation into the Nantygwyddon landfill site. This allowed an independent, public investigation into public concerns about the development and operation of the site without the expense and delay of a full public inquiry.

The National Assembly inherited the production of a joint Wales and England strategy Waste Strategy 2000, with the expectation that the Assembly would replace this with its own strategy in due course. The process was highly inclusive of the main stakeholders in Wales through the establishment of a Wales Waste Forum, and included full public consultation. Wise about Waste: the National Waste Strategy for Wales was published in June 2002. The Strategy includes significantly higher targets for recycling and composting of municipal waste than the Waste Strategy 2000; it contains targets for waste minimisation and for other waste streams. The strategy is consistent with the Assembly’s sustainable development responsibilities and is required to meet a wide range of EU obligations.

The direct payment of grant-in-aid to the Environment Agency for its activities in Wales has allowed the Assembly to promote additional functions by the Agency in respect of its waste activities in Wales. Increased monitoring of illegal waste operations and enhanced monitoring of polluting sites has been supported.

Following designation under section 2(2) of the European Communities Act 1972, the Assembly has been able to adopt a targeted approach to the designation of new nitrate vulnerable zones in Wales under the EC’s Nitrates Directive. The Assembly has also introduced a straightforward procedure enabling farmers to require a reassessment of whether their land should be designated as a nitrate vulnerable zone.

Since the flooding which occurred in the autumn of 2000 the Assembly has simplified arrangements in order to improve the assistance offered to operating authorities to help them deliver improved flood defence services within Wales. Increased funding and grant rates and the provision of specific grants for high priority flood defence tasks such as the preparation on catchment flood management plans have been made available.

Two examples are:

The Sustainable Development Scheme we made in November 2000 commits us to take sustainable development into account in all our functions. For instance:

Throughout, we have been keen to work with external partners in formulating and putting into effect our Scheme, and in our preparations for the World Summit.

A review of our approaches to the historic environment in Wales is currently underway, but any changes in emphasis or direction are likely to be achievable within the powers of the Assembly.

Cadw has sought views on the possibility of establishing local heritage strategies, to be agreed bi-laterally by Cadw and the local planning authority, which might draw together areas where they each work together in partnership. They might also cover initiatives distinctive to particular authorities and establish aspirational objectives for the care of the historic environment in local authority areas. There was universal support for this proposal and further consideration is being given on how this could be taken forward.

Both the UK and Assembly governments are committed to delivering an integrated transport policy. But there is a sharp contrast between the Assembly'’ wide powers over the trunk road system and its lack of powers relating to public transport. At present there is no power to require local authorities to act together on a regional basis for transport planning. Indeed the Transport Act 2000 requires each to prepare separate Local Transport Plans and Bus Strategies. Informal arrangements have worked relatively well to date but delivery of improvements to transport would be quicker if the present informal arrangements had a statutory basis.

This would build on the recommendations of the Assembly's Environment, Planning and Transport Committee's review of public transport that identified a need to strengthen cross local authority border planning and delivery of transport services. On 2 July 2002 I informed Plenary that in order to implement the vision set out in the Transport Framework it would be necessary for the Assembly to strengthen its statutory powers so that it could set priorities and work in partnership with local authorities and the private sector to deliver them. Powers similar to those available to the Mayor of London under the Greater London Act 1999 would form the basis for legislation. The Mayor and Authority can develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities.

The Assembly does not have regulatory powers affecting the bus or rail industry (and the degree to which these should transfer to the need to be considered further). Responsibilities for bus regulation rests with the Department for Transport in terms of such issues as vehicle standards and implementation of legislation affecting disabled people. The Health and Safety Executive has responsibilities for both bus and rail and report to the Department for Transport, while the Office of the Rail Regulator has statutory responsibilities especially for Network Rail's (formerly Railtrack) operations. All these require a standard approach and it would be difficult to work up a practical case for handling them differently.

There is however potential for a greater involvement in rail strategic and operational matters handled by the Strategic Rail Authority (SRA). The Assembly is seeking powers of direction over the SRA similar to the powers available to the Scottish Executive in the Transport Act 2000 and to appoint a member of the SRA directly.

Potentially, there is a case for ensuring that there is greater synergy between the Assembly and local authorities in the case of the Traffic Commissioner. There is no statutory control over the Commissioner but the Assembly maintains informal links. An office in Cardiff would provide a visible presence although the Commissioner does hold all hearings in Wales.

There are no specific powers relating to air and ports development but the Assembly Government has a role in their development through planning and economic levers. In the case of air it has a role in consideration of providing any funding support for internal Welsh flights.

The development of planning policy has not generally been constrained by legislation. Some proposals in "Planning: Delivering for Wales" will require new primary legislation or for that primary legislation to operate differently in Wales.

Difficulties have been encountered in relation to consents for power generating facilities and associated infrastructure under sections 36 and 37 of the Electricity Act 1989 which carry deemed planning permission under section 90 of the Town and Country Planning Act 1990. The current arrangements

The direction under section 90(2) of the 1990 Act is discretionary and could be amended with the agreement of DTI by administrative means, the result of which would provide for the planning merits of such development to be considered, in Wales, by the appropriate planning authority in accordance with current procedures.

The Autumn of 2000 saw significant flooding across Wales. The Assembly was keen to support operating authorities to address flooding problems across Wales and to reduce flooding problems in the future. The Assembly made more funds available and looked at ways to simplify existing procedures and structures. Currently grant rates can and do vary significantly for each Flood Defence Committee and for local authorities. Wales is unusual in having a relatively large number of local flood defence committees (6) with a consequently limited resource base. Rationalisation of this structure by the Assembly requires primary legislation.

One example where the existing powers provide a constraint is in relation to the appointment of members to the National Park Authorities. The main appointment arrangements are set down in primary legislation (Schedule 7 of the Environment Act 1995). This means that any significant changes - for example in the balance of members appointed by the Assembly and by the constituent local authorities or in appointing method adopted – would require amending primary legislation first of all.

The National Parks in Wales will be subject to a review in the near future and one of the key questions to be addressed will relate to the adequacy of the current membership arrangements and whether having directly elected members (or other such steps) would assist in improving the democratic accountability of the Park Authorities. If this course were to be recommended and agreed (as has already happened in Scotland), then the need for new primary legislation would be a constraint on implementation.

Our section 121 duty is not to promote sustainable development (though that is a frequently used shorthand description). Rather, it is to make a Scheme saying how we will promote sustainable development in the exercise of our other functions. The statute places specific responsibilities on us but does not give us any general power of promotion. Our supplementary powers attach to our functions, including the functions of making, publishing and reporting on the Scheme, but they do not extend our functions. For all activities we undertake in respect of sustainable development, we have to be sure that there is statutory underpinning either in terms of the precise requirements of section 121 or in terms of some other statutory function.

Arguably, we would have more freedom of action, and more scope to foster partnership working in sustainable development if we had a general power to promote sustainable development in addition to our existing specific responsibilities to make a Scheme.

The primary legislation which underpins the management of the historic environment is on an England and Wales basis and we would like to see some minor revisions – for example, removal of the anomaly whereby local authorities can deal with listed building consent cases to properties which they own by inviting a developer to submit the application, rather than doing so themselves.

We secured flexibility within the provisions of the Transport Act 2000 to enable free concessionary travel on local buses to be introduced in Wales. It has been possible to contribute to several transport policy reviews (e.g. on the provision of public transport information, and on bus subsides) offering a specifically Welsh perspective.

I periodically have bilateral meetings with the UK Environment Minister which provides the opportunity for me to debrief on the Assembly’s priorities and to raise issues regarding powers and functions not available to the Assembly

The Assembly was influential in the considerations within Government leading up to the creation of Glas Cymru – a non profit making company which now owns the main water undertaker operating in Wales, Dwr Cymru. There were concerns within Government about this type of structure and the possible precedent effects for the structure of the wider water industry in England and Wales. The proposal to establish Glas Cymru was also given full and careful investigation by the water industry regulator – the Director General of Water Services – and in reaching his decision to allow the Glas Cymru acquisition of Dwr Cymru to proceed the Director General made public reference to the support for the proposal from the Assembly and that this was a factor in his consideration and eventual decision.

The limitations of our sustainable development duty have constrained only our own operations, and the issue of influencing Whitehall has not arisen.

Generally these issues are appreciated and shared by colleagues in England but dealing with them awaits a legislative opportunity.

The creation of a Wales and Borders rail franchise was significantly influenced by the Assembly’s strong promotion of the concept. We have also had a continuing influence on the Strategic Rail Authority’s policies towards services in Wales.

The provision of public transport information through the traveline system was prompted by a central government initiative. It is being implemented in Wales, Scotland and on a regional basis in England. This has enabled the policy to be implemented in Wales reflecting Welsh needs and circumstances (e.g. with a greater involvement of the bus industry than is the case elsewhere), while being consistent with the initiative’s overall objectives.

We have encouraged the DfT and the Traffic Commissioner for the Traffic Area for Wales (part of the Department for Transport's Traffic Area Network) to investigate the scope for re-establishing a presence in Wales. The Commissioner is considering the options.

Through ministerial discussions we have been able to influence the priorities for trunk road improvement in England to take account of cross border priorities.

The UK Government has been sympathetic to our promotion of a different approach planing procedures and has not opposed proposals for primary legislation to implement that. The proposals in "Planning Delivering for Wales" were considered by the Commons Select Committee when it examined the Planning Green Paper. The Committee particularly commended aspects of the Welsh proposals as meriting consideration in England.

In taking forward the waste strategy, the Welsh Assembly Government has identified the need for local authorities in Wales to prepare Municipal Waste Management Strategies in an approved form and to submit them to the National Assembly for approval. We have successfully worked with DEFRA to ensure the inclusion of relevant Wales-only clauses within a draft Bill that we hope will get Parliamentary time in the near future.

Composting of separately collected green and food wastes from municipal waste to produce a product fit for the open market is central to the national waste management strategy for Wales. The Assembly Government has played a major part in ensuring that the review of the animal by-products order currently within DEFRA takes account of the need to allow practical composting activities while safeguarding animal and human health and will consult shortly on the proposals.

Assembly Ministers supported DEFRA Ministers in influencing the Large Combustion Plants Directive during its final passages within the EU so that the position of the Aberthaw Power Station was recognised and it could be afforded some degree of protection if it was required.

The current funding and institutional arrangements which support the delivery of the Flood nd Coastal Defence service in Wales is set out in primary legislation. The existing system is currently being reviewed as part of a national (England and Wales) review which is being lead by DEFRA. Assembly officials have been represented on the Review Steering Group and have contributed to the Review’s development ensuring that Welsh issues are taken into account. Assembly officials have promoted clauses in the Water Bill that would facilitate changes to the flood defence committee structure in Wales (to include the boundary change issue) together with changes to the funding mechanisms

The main area where sustainable development policy as such is not devolved is international negotiation. We contributed to the UK Government’s preparations for the World Summit on Sustainable Development, and the First Minister was a member of the UK delegation in Johannesburg. Similarly, I am consulted or informed by the Secretary of State for Environment, Food and Rural Affairs about the UK’s position in EU discussions on sustainable development. We have on occasion been able to influence the UK’s position, for instance on the response to the European Commission’s initial proposals for an EU Sustainable Development Strategy.

Responsibility for enacting all of the legislation by which the historic environment is managed has been devolved. One area where Whitehall retains responsibility is in the selection of candidate sites for enrolment by UNESCO on the World Heritage List, but we believe that through liaison with DCMS Welsh interests are satisfactorily met – and indeed, Blaenavon Industrial Landscape was recently put forward and awarded World Heritage status.

The Assembly works well with DfT on road safety policy development and the disabled parking badge scheme.

Achieving the goals we have identified in the Transport Framework is proving difficult because key powers are held by Whitehall or by local authorities. The Assembly's role (excluding in respect of trunk roads) is largely confined to funding).

The absence of powers of direction over the SRA is the key one in terms of developing a fully integrated policy and currently the good relationships built up with the SRA are providing a way forward. The critical issue relates to the Public Service requirement of subsidised services. The Assembly does not receive funding to subsidise rail services and therefore achieving its aspirations for modal shift in south east Wales are subject to the judgements of the SRA.

The multi modal study of routes between London and South Wales/ the south west of England is an example of the difficulties we face in joining up major infrastructure initiatives across our boundaries.

Joint sponsorship of the Planning Inspectorate between ODPM and the Assembly Government works very well, and this has been extended to encompass work on the Planning Portal, which is already showing potential to deliver a significant contribution towards e-government targets.

The Assembly and the Office of the Deputy Prime Minister have separate research budgets but close liaison enables us to share research findings. Assembly officials are often represented on Steering Groups that oversee research studies, resulting in mutual benefits, and there are regular (though infrequent) research programme liaison meetings. ODPM retains overall responsibility for research that has a GB wide remit.

In general, relations between the Assembly and Whitehall Departments have remained very good and there is frequent contact at working level over the wide range of environmental responsibilities both of Whitehall and the Assembly.

For example, while the Assembly sponsors the Environment Agency’s activities in Wales, DEFRA remain the lead sponsors for the Agency and consequently it has been essential to maintain good working relations with officials there. During the Assembly’s first term DEFRA officials appeared before EPT Committee and officials of both organisations meet regularly to discuss the full range of sponsorship issues.

The five-yearly review of water company prices is an activity where there needs to be close co-operation and links between Whitehall and the Assembly. We saw that demonstrated in the final stages of the last review which concluded shortly after the Assembly assumed its functions and we’re seeing that level of co-operation as the process of the next review gets underway.

Research into a wide range of issues on an England and Wales (GB/ UK) basis is undertaken by DEFRA. The programme and projects are managed by DEFRA but with the results available to inform in Wales. Our direct engagements are selective, reflecting available resources and priorities. Areas where we have been particularly engaged, sometimes enhancing the Welsh element of the research, include eutrophication and acidification.

Implementing the main provisions of the Countryside and Rights of Way Act 2000 is the responsibility of the Assembly in Wales and of DEFRA in England. We have established strong and effective liaison arrangements with key organisations on both sides of the border. This has proved very helpful in identifying early on potential problems and solutions to those problems and in assisting progress towards the full implementation date of 2005.

There is also generally good co-operation at the UK level on the implementation of nature conservation obligations between the UK administrations and the respective statutory nature conservation agencies, whose advice is co-ordinated at the GB-level through the Joint Nature Conservation Committee.

Our Sustainable Development Scheme explicitly endorses objectives of the UK Sustainable Development Strategy, and our intention all along has been to build on the UK strategy not seek to replace it. This stance has provided a basis for amicable relations with Whitehall.

We joined with Whitehall and the other Devolved Administrations to establish the Sustainable Development Commission. All appointments to this are decided jointly, but it was agreed in advance that at least one member from Wales would be appointed. (In fact 2 were: one whom we nominated after advertising, and one identified by a trawl conducted at UK level.) The Commission reports to all home country First Ministers, but in practice is sponsored and paid for by DEFRA on behalf of us all.

We are invited to benefit from other UK-level initiatives supported by DEFRA, for instance the UK Sustainable Development Research Network.

By agreement, we were not represented on Whitehall’s Green Ministers’ Committee (now reconstituted formally as a Cabinet sub-committee, ENV(G)). However, we have received papers and are at liberty to draw upon them.

Similarly, our work on indicators has been informed (though not determined) by previous developmental work undertaken by the former DETR.

Arrangements for reporting on the UK’s progress towards sustainable development work adequately. We are invited to contribute to the UK Government’s Annual Report, and our website is linked to and from theirs. However, our main means of reporting is through our own statutory annual reports on progress in implementing our Scheme.

Historic Environment

We are not aware of any areas where a formal division of responsibility exists. Generally the level of consultation is good.