Memorandum by the Environmental Services
Association (PI 27)
INTRODUCTION
The Environmental Services Association ("ESA")
is the trade association for the UK waste management sector which
contributes more than £3.5 billion (0.5 per cent of GDP)
to the UK economy.
ESA welcomes the opportunity to comment on the
Planning Inspectorate. Our Members have extensive, first-hand
experience of the current system for determining planning applications,
of subsequent and often protracted appeals and of the delays to
essential infrastructure that all too often result. ESA also participates
in development plan examinations and inquiries. The Inspectorate
also adjudicates over appeals into waste management licences.
Successful implementation of the Landfill Directive
and National Waste Strategy will require the planning system to
respond positively and expeditiously to meet the needs of the
UK for waste management capacity.
BACKGROUND
ESA recognises that many of the problems associated
with securing consent for provision of critical facilities are
attributable to flaws in the planning system as a whole. We therefore
welcome the Government's intention to modernise the planning system
and streamline inquiry procedures.
ESA recognises the value of developing constructive
and informative relationships. We are keen to work in partnership
with the Planning Inspectorate to develop a faster and more effective
system. This submission is informed by issues arising from our
liaison with the Inspectorate.
SPECIFIC QUESTIONS
1. The Relationship between the Inspectorate's
Internal Targets and the Quality of Decision-making
The internal targets must be transparent and
widely publicised if they are to assist in making the Inspectorate
more accountable to those who have everyday dealings with it.
Furthermore, ESA is concerned that in meeting targets there may
be a tendency to fast-track those decisions which can be made
relatively quickly whilst more complex and contentious applications
are delayed. This would have serious implications for the waste
management sector.
Targets should apply equally to difficult and
to less contentious decisions. However, as discussed below, in
setting targets there may be benefit in distinguishing between
major and minor decisions.
Availability of sector-specific data on decision
timescales needs to be improved and should distinguish between
decisions for major developments, eg new facilities, and those
that might relate to minor development on major sites, eg those
concerning weighbridges on landfill sites. Current statistics
do not appear to take account of this important difference and
by "masking" the overall performance may create an impression
at odds with reality.
Internal mechanisms—including the identification
and availability of suitable inspectors—need tightening
if delays in appeals are to be minimised. Currently the Inspectorate
may deliver decisions to the target but the Secretary of State's
determination process and internal administrative procedures within
the Inspectorate's offices may delay these decisions.
Determination of decision quality is inherently
subjective but ESA is concerned about inconsistency in approach
and outcome across the range of decisions in the field of waste
management.
The Consistency of Decisions Made
Consistency in approach to inquiry conduct and
decision-making (eg weight attached to specific issues) is important
to ensure that timescale and inquiry outcomes are reasonably predictable.
To assure improved consistency, the following
factors should be addressed:
— are suitable mechanisms and safeguards
in place, eg internal audit?
— are inspectors encouraged and enabled
to achieve best practice by sharing experience and opinions or
do they tend to work in a vacuum?
— has appropriate education and training—including
industry's offers to assist with site familiarisation—been
provided to inspectors?
In the interests of consistency, mechanisms
are needed to ensure that the results of decisions of the Judicial
Committee of the House of Lords are given proper weight in future
decisions.
The Relationship between the Inspectorate and
Government Offices
The Government Offices of the Regions (GOR)
have an important role in the determination process: they have
powers of intervention and may ultimately determine decisions.
Intervention Powers
The Inspectorate prides itself in its independence.
However it currently seems that the GOR may intervene in the determination
or appeal process on a somewhat arbitrary basis, leading to a
concern about the influence of local politics on GOR actions and
compromising the Inspectorate's capacity to be seen to act as
an independent arbiter.
The GOR may intervene on behalf of the Secretary
of State in the local decision making process by issuing an "Article
14 direction". This places the normal determination process
in abeyance pending a decision as to whether an application is
to be "called in" by the Secretary of State. Currently
these directions are not subject to time limits and this can result
in excessive delay in applications being determined. We propose
that the decision as to whether an application is to be "called
in" or not should be taken within three months of issuing
of the direction when all mechanisms are in place to allow determination.
Determination
The determination of appeals relating to waste
management developments often requires evaluation of decisions
on highly technical issues. The capability/competence of GORs
as currently resourced to undertake this must be examined.
The Ability of the Inspectorate to Adjust to Changing
Workloads, Including the Use of New Technology and the Volume
of Local Planning Inquiries
Substantial increases to waste-related workloads
should be anticipated with the arrival of the National Waste Strategy
and implementation of the Landfill Directive.
New technology has the potential to speed up
administrative processes, eg
— closing submissions conveyed electronically
could more easily be used as a source in the preparation of the
inspectors' final report;
— availability of inspector reports
and any associated decision letter on the Internet would aid in
disseminating the outcome of an inquiry, hence speed up the process.
This would be consistent with the DETR's approach and broader
Government targets on the use of IT.
Provision of guidance from HMG on the standardisation
of development plan formats and policy wording would greatly improve
the efficiency of the Inspectorate and planning authorities in
their development plan work.
The Treatment of Complaints to the Inspectorate
The following are needed:
An independently audited and publicly documented
complaints system;
— the desired format of complaints;
— the appropriate routing for complaints;
— the timescale within which a response
can be expected;
— the form responses are likely to take.
Mechanisms to ensure that feedback, eg from
judicial reviews, is incorporated into future decisions.
The work of the independent Advisory Panel on
Standards set up by the Inspectorate should be reported widely.
The Inspectorate from time to time carries out
customer satisfaction surveys of local government. For the sake
of balance it should now conduct a similar survey of industry/appellants.
The Impact of Human Rights Legislation
ESA is concerned about the potential adverse
impact this will have on inquiry conduct and outcomes. We are
aware that certain recent decisions have been significantly influenced
by public perception factors. However, we are unaware of what
advice the Inspectorate gives to inspectors on the weight to be
attached to these considerations in the overall determination
of appeals. An appropriate balance between the rights of interested
parties and the rights accorded to objectors must be struck in
order to minimise potentially negative impacts.
eg:
— Prolonging the conduct of inquiries;
— Undermining initiatives designed
to streamline the process;
— Encouraging a trend towards legal
challenge.
Recruitment, Training and Equal Opportunities
There is currently a perceived bias towards
recruitment of candidates from a local government planning environment
who have little or no direct experience of the need to provide
facilities which should be balanced against conservation imperatives.
Clarification is needed with respect to current
inspector training on all relevant issues—including site
familiarisation, a matter in which ESA is willing to provide assistance.
Publicising Public Inquiries
As suggested above, greater use could be made
of the Internet in making inspectors' reports and associated decisions
widely available.
Compliance with Timetables
Could be improved through implementation of
the following:
— A declaration by the Inspector of
what issues are to be covered.
— A pre-inquiry meeting to establish
the key issues.
— Clear rules fairly and consistently
applied to all participants.
— Careful management of third party
participation in inquiries.
— Appropriate monitoring and reporting.
Availability of Assessors for Specialist Inquiries
Technical assessors are sometimes needed due
to the technical nature of waste management appeals. ESA has been
concerned for some time about the ability of assessors available
to deal with the range of waste management options. Each option
presents distinct issues that may require different expertise:
for example, an assessor with experience of landfilling (or tipping
as used by the Inspectorate) may not be appropriate to advise
on an incinerator application.
We consider that the current system by which
assessors are identified requires further examination. The following
prerequisites must be considered:
— The criteria to be used to define
"Specialist" Inquiries.
— Establishing a "Register of
Accredited Assessors" to ensure appropriate competence and
qualifications.
— A transparent mechanism for judging
the need for and selection of assessors.
ADDITIONAL ISSUES
IDENTIFIED BY
ESA
Role of the Secretary of State
The Secretary of State often plays a key role
in the determination process of waste management decisions but
is currently not subject to delivery targets. Currently the Inspectorate
may deliver decisions to the target but these decisions may be
delayed by the Secretary of State for an unspecified period. ESA
considers that the inclusion of targets on Secretary of State
would be of substantial benefit and again in line with the broad
thrust of the Government policy of setting transparent targets.
In certain cases the Secretary of State has
ruled that applications for certain facilities are premature if
the relevant development plan has still to be adopted. This is
problematic and causes uncertainty and delay. This could be addressed
by the Secretary of State declaring within one month whether or
not an application is deemed to be premature. This would allow
agreement to be reached between the applicant and planning authority
on an extended determination period. If not agreed it would be
open to the applicant to appeal in the knowledge that the Secretary
of State considers the proposals premature.
Increasing Workload
We are aware that the Inspectorate's responsibilities
to advise and adjudicate on environmentally related appeals are
increasing. There is some concern that this ever-growing burden
may over-stretch the Inspectorate's specialist resources and divert
these resources from core activities where its principal competencies
are needed most. An example is the recently introduced Environmental
Impact Assessment Regulations where the Inspectorate may have
to intervene where local authorities are unable to make a determination
on the need for an Environmental Statement.
Role of the Environment Agency
Industry is concerned about duplication of control
between the two separate regimes of development control permission
conditions and pollution control permit conditions, that apply
to most waste management sites. The Inspectorate's understanding
of the relationship between these two sets of conditions and how
they interface needs to be made clear.
What status does the Inspectorate accord non-statutory
documents being produced by the Environment Agency such as the
Library of Licence Conditions and other emerging policies?
The Environment Agency should act as an independent
and authoritative source on technical issues of waste management
at public inquiries. This is an important role in that it should
reassure the inquiry on matters to be controlled by pollution
control permits that will need to be secured prior to commencement
of operation. It is not the current practice of the Environment
Agency on a consistent basis to make available to inquiries officers
competent to provide such expert evidence.
Conduct of Inquiries
ESA would welcome and encourage changes in the
way the Inspectorate manages planning inquiries. In particular
we would encourage better use being made of pre-inquiry arrangements,
particularly for major developments, and continuity of presence
of Inspectors. There are instances where a different Inspector
from the one handling the case in the pre-inquiry stage is present
at the Inquiry stage.
Awarding of Costs
The situation needs to be made clearer and there
should be a presumption to award costs against a Planning Authority
which has lost, having refused permission against its officers'
advice.
February 2000
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