Select Committee on Transport, Local Government and the Regions Memoranda

Memorandum by the Environmental Services Association (PGP 25)


  ESA welcomes the opportunity to comment as the sectoral trade association for the UK's waste and secondary resource management industry. The industry contributes more than £5 billion annually to the UK economy, turnover which compliance with the UK's existing legal duties would cause to double, through very substantial investment in infrastructure and otherwise, within a decade.

  An effective and efficient planning process is a pre-requisite to achieving greater economic and environmental sustainability and to enable the Government to meet its legal duties resulting from the Landfill Directive and other requirements as interpreted in the Government's National Waste Strategy.

  These legislative drivers impose very challenging timetables for delivering compliance and have significant planning implications for producers and managers of waste. Over the next five years progressively more waste streams such as end of life tyres and liquid wastes will be banned from final management in landfill, requiring alternative treatments and the delivery of new infrastructure.

  However, the regulatory process provides neither the strategic framework nor the efficiency and certainty that is required. For example, planning applications for composting plants and recycling facilities are as least as likely to be rejected as those for landfills.


  ESA is pleased that the Government proposes to retain at a County level the responsibility to prepare and make decisions on topic based plans for minerals and waste. We suggest that the Government makes it clear that Local Development Frameworks (LDFs) prepared by District Councils should not include policies on waste and minerals.

  However, we are disappointed that the Government does not propose any new reforms to improve the preparation of waste plans of which two thirds are still incomplete. If the Government believes the planning process is too slow it must also believe that applications are subject to unnecessary and unreasonable delay.

  Whilst we are pleased that the Government suggests that good practice would be to produce LDFs in less than a year, based on the time it has taken to complete waste plans, we do not believe that most will be prepared within this timescale. This may mean projects too small to be classified under the "nationally important infrastructure" but nevertheless of a significant size may continue to face delay.

  The Government must therefore make it very clear that delay in preparing Action Plans will not be regarded as consistent with the objectives of the Green Paper and does not constitute a valid reason for rejecting an application.

  It is vital that wherever practicable the Government assists local authorities to develop these new plans. For example, to promote consistency and good practice the Government may be attracted to issuing model LDF policies.

  ESA also sees merit in including in the guidance on the production of LDFs clear and detailed criteria to help local authorities determine when Action Plans might be necessary. Otherwise, some authorities might produce very few resulting in a vacuum between core policies and development control whilst neighbouring authorities could develop very many plans that might cause unnecessary complexity.


  ESA recognises that the Government intends to consult shortly on Regional Government. However, such is the environmental significance of waste, recently identified in PIU's, report on resource productivity as the Government's second environmental priority, and the challenging legislative timetable we support a greater regional dimension for waste management planning than has been proposed.

  We believe that the regions are best placed to take hard, strategic decisions and to apply Best Practicable Environmental Option to deliver the most sustainable and integrated regional solutions to the regional environmental challenges created by waste producers. ESA therefore suggests that the Government should significantly strengthen the regional framework by establishing a regional waste management planning body to facilitate provision of planning consents for new infrastructure. We envisage that this body would include elected officials and receive advice from experienced planning officers.

  If the Government were to put this framework in place, ESA sees merit in providing waste management developers with the right to regional determination for all waste management facilities likely to manage over 30,000 tonnes of waste per year. This would be likely to include composting, recycling and energy recovery facilities, which may be able to serve several authorities. Alternatively, these facilities could be automatically classified as regional matters to be determined by the regions.

  Without a greater role for the regions we believe that considerably more waste applications will be determined only through an inquiry which will place considerable demands on the resources of the Planning Inspectorate, further extend the planning process and perhaps generate concerns of democratic deficit.


  For the planning process to work effectively it must be supported by the political process. However, short-term administrations (particularly where there are annual elections) often do not have the foresight or political will to take necessary long-term decisions on sustainable waste management.

  Whilst we warmly commend the Secretary of State, DEFRA, for initiatives she has taken with the Prime Minister in her first year of office HMG's support for an approved range of safe and proven waste management technologies capable of enabling the UK to achieve compliance with the Landfill Directive has, to put it at is lowest, been muted.

  The PIU is expected to complete its review of waste policy by summer 2002. To provide the necessary framework in which decisions can be made, it is vital that the PIU makes vigorous recommendations to modernise the planning regime so that it is consistent with the UK's compliance with its legal duties. Such recommendations need to be followed by the Government's action and issuance to local authorities of clear and unambiguous guidance on the range of acceptable waste processing technologies. We suggest that this be done via HMSO so that it is formal Government policy which must be considered as a material consideration in determining planning applications and appeals.


  The Government is incorrect to assume that pre-application discussion with the public can improve overall planning efficiency as it typically begins outside the statutory procedures. Many years can therefore elapse from the starting of pre-application consultation and the delivery of the decision.

  There is an inherent contradiction within waste management planning: public opposition to new waste management facilities is growing at a time when they operate to higher environmental standards, there is widespread public support for a more resource efficient economy and our Members engage more with the public, than ever before.

  ESA's Members take very seriously their responsibilities to engage effectively with the public and ESA has recently published a best practice guide reflecting some of the innovative techniques that are employed.

  However, the overwhelming experience of ESA's Members is that engaging with the community can extend the process considerably. The Green Paper does not take into account that in the communities our Members serve there is neither a growing awareness nor a greater civic responsibility towards the waste they themselves produce. This can be exacerbated further by the sensationalism, distortion and irrational material regularly circulated within communities by some media and NGOs.

  The public needs to recognise that all waste management developments are based on some form of public need and without a greater degree of consumer responsibility the vision of the Landfill Directive and the National Waste Strategy will remain as words rather than deeds.


  ESA believes the planning process could work more efficiently by reducing the regulatory burden for certain waste management applications through the introduction of a separate use class for waste.

  ESA's Members want to be enabled to deliver far greater and more sophisticated processing of waste to facilitate its return back to the productive economy as a secondary resource, either as a raw material or as energy. The Government might therefore see merit in clarifying the status of B2 through introducing a use class for waste management. The use class would need to be tightly regulated, comparable with general and industrial storage use B2 and B8 and cover processes such as materials separation—including materials recovery facilities—and the storage of waste prior to treatment.

  We suggest that there would be need for interchangeability between B2 and B8 and waste one (waste activity) and waste two (waste transfer). We do not here suggest that composting or incineration should be included and ESA suggests that a limit of 100 tonnes processing per day should be introduced.

  The environmental impacts resulting from the activities we propose to include in a use class are typically less than other industrial activities and will fall under the control of the Environment Agency. This proposal also fits with the planning trend of encouraging certain waste and secondary resource management facilities to be sited in industrial estates.

  ESA also sees considerable merit in introducing national permitted development rights for the waste and secondary resource management industry. We believe that this would liberate significant resources and enable our Members to focus on working with the local authority, the wider public and other partners in delivering high-quality, state of the art facilities sustainably to manage waste. Because of the importance we attach to this and because we believe that it will improve overall planning efficiency, ESA attaches in annex one our proposals for national permitted development rights for waste management.


  ESA welcomes the following proposals: the introduction of delivery contracts, the establishment of the Planning Portal and the new efficiency targets—although we believe that the Government must closely monitor the management of applications to ensure that the targets are not met through prematurely curtailing debate and discussion.

  We also commend the Government for avoiding the potential legal quagmire of third party rights of appeal. We do not believe that this power would consistently be used in the public interest. We have very serious concerns that proponents do not appear to recognise that this proposal, particularly in relation to certain NGOs, would effectively grant them the status of a guardian or watchdog over the democratic process, a wholly disproportionate amount of power.

  However, there are proposals which cause us great concern. For example, we believe that the suggestion to reduce to three years the maximum period for the implementation of consents is far too restrictive and could prejudice many waste and secondary resource management developments including almost any facility that requires an IPPC approval.

  ESA also opposes the proposal to reduce the appeal deadline from six to three months as we do not consider three months to be sufficient effectively to judge the implications of a refusal and to prepare a properly reasoned appeal. We draw attention to a Parliamentary Written answer dated 12 February 2002 to a question tabled by Mr John Burnett MP. This stated that in 2001-2002 nearly a third of all planning appeals against the refusal of a planning permission were submitted during the final month of the six-month time limit.

  ESA is concerned at the proposal contained within paragraph 5.69 that a breach of planning control should become a crime. ESA supports very robust and effective risk-based regulation against those who aggressively and deliberately flout planning control. However, the Government must be careful to demarcate this from, for example, a disagreement over whether there has been a transgression of a condition. In our view this proposal would overload the criminal justice system and fetter the overall operation of the planning process.


  For ESA's Members, pre-application has been considered good practice for some time and ESA is therefore surprised as to why it is proposed that local authorities be given the powers to be able to charge for a clear example of good practice, particularly given the employment opportunities developments bring. To provide an incentive for developers to continue to engage in pre-application, ESA suggests that relative to the size of the application fee, developers should be given a set number of hours "free" pre-application discussion. Alternatively, there could be a discount on the eventual planning application fee.

  ESA's Members do not have an ideological opposition to higher fees providing that it is matched by a significant improvement in service. However, we encourage Government to make available resources necessary to planning authorities and statutory consultees from sources other than the developer.


  The Government rightly acknowledges that statutory consultees can contribute to many delays and add to uncertainty. ESA therefore warmly welcomes the proposal to introduce a statutory responsibility on statutory consultees to respond to consultation requests within a statutory timescale.

  However, for this proposal to effectively deliver more timely and substantive responses, the Government must introduce a very rigorous definition of what constitutes a response and prevent consultees from merely issuing a list of questions designed to extend the timetable. Responses should be relevant and substantive and directly facilitate the determination of an application.

  The Government must also make available the resources statutory consultees such as the Environment Agency require. Whilst we agree that performance of the Environment Agency should be improved and acknowledge that the Agency has tended to stray beyond its regulatory role it is difficult for the Agency to retain suitably qualified personnel if they do not receive commensurate salaries.

  We do not see why planning authorities should be able to refuse an application because it is deemed that the facility will not operate to standards determined by the Environment Agency. It would therefore be helpful if the Government would reinforce the demarcation of responsibilities proposed by PPG10 and PPG23. ESA is very fearful that the planning and PPC regimes will further de-couple and that each will produce separate and entirely uncoordinated guidance on topics such as noise.


  ESA recognises that a low number of applications is "called in" each year. However, we remain to be persuaded that all are necessary and we believe that the system would be much more efficient if the criteria were to be tightened to the national interest or national security. The regional planning body could effectively manage the remainder, which could also help to improve the transparency and efficiency of the use of Article 14 Directions.

  ESA also believes that for large and complex applications liable to be "called in", the relevant Government office should be required at an early stage to meet the developer to discuss the application and suggest amendments as appropriate. We recognise that this may only be effective if discussion occurs over a limited period and are also aware that this may also create legal issues in terms of the Government Office participating in such discussions when it is the decision-taking body. However, we believe that this proposal does warrant further discussion and consideration.

  We also suggest that a mandatory requirement be placed on the relevant Government Office to visit the proposed development site.


  ESA suggests that for every planning inquiry and analogous to the Secretary of State "call-in" cases, the Inspector should be required to set out a list of issues which he considers to be particularly relevant. The parties could then focus on this list although each would be able to raise such issues, as they considered relevant. As is the case now, the Inspector would have the discretion to decide what weight to give such issues.

  ESA believes that pre-inquiry meetings can considerably assist the efficient running of public inquiries by allowing all parties the opportunity to understand the procedure and identify key issues of contention. In this context, we believe the current requirement for pre-inquiry meetings only to be convened for inquiries which are scheduled to last more than eight days is too restrictive. This policy can often exclude complex cases and frequently results in the first day of the hearing effectively becoming a quasi pre-inquiry meeting.

  ESA would therefore like to propose that pre-inquiry meeting should be obligatory where it is anticipated that an inquiry will last longer than four days. We also believe that this should be supplemented by a requirement that all pre-inquiry meetings have to be held a minimum of 10 weeks before the start of the inquiry. This would enable both parties to prepare a case based on the agreed issues of contention and facilitate a more efficient, focused and expeditious inquiry.

March 2002

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