Memorandum submitted by Kent County Council
Comments by Kent County Council as County Planning
Authority on the relationship with the Environment Agency on Strategic
Planning Issues
INTRODUCTION
1. These comments relate to the effectiveness
of the Environment Agency (EA) as a statutory consultee to Kent
County Council as a strategic planning authority. Specifically
it explores the input by the EA to Kent County Council in its
role as:
Waste Planning Authority both for Development
Control and Waste Forward Planning, Minerals Planning Authority,
Development Control Authority for applications under Regulation
3 of the Town and Country Planning General Regulations 1992 and
Enforcement Authority for Minerals and Waste.
2. KCC'S ROLE
AS WASTE
AND MINERALS
PLANNING AUTHORITY
2.1 Development Control
Under the GPDO the EA is a statutory consultee on
a substantial proportion of "County" matter proposals.
Like other statutory consultees the EA is obliged (under Section
54(4) of the Planning and Compulsory Purchase 2004 Act) to provide
a substantive response to consultations within 21 days.
County Councils, like District Councils, have
strict Development Control performance targets (measured by national
BVPI 109). In a recent government consultation it has been proposed
that an element of Planning Delivery Grant to County Council's
(for 2006-07) be linked to improvement in the speed of determination
of waste applications.
2.2 KCC has been experiencing problems with
obtaining satisfactory responses from the EA within reasonable
deadlines. The issue was raised locally via the Area Office in
summer 2005 and was subject to a joint EA/KCC workshop in October
2005. However, this has failed to resolve the issues that have
since been discussed at national level and with ODPM.
2.3 The principal issue relates to waste
proposals that require a second stage permit from the EA (whether
a Waste Management Licence or an IPPC permit.) Specific difficulties
have arisen when such permits are dealt with by a "virtual"
EA national permitting team, known as the Strategic Permitting
Group (SPG). Specifically, there is a view within the EA that
to offer detailed comments at the planning stage on pollution/health
issues would "fetter" their decision making at the subsequent
stage. The outcome has been to cause significant delay in the
determination period for a number of significant planning applications.
The Committee may be aware of assertions by some sectors of the
waste industry that the planning process has been too slow to
deal with important proposals. The KCC position which was also
referred to by a number of experienced figures at the recent DEFRA/ODPM
PPS10 Regional Planning event is that the delay is being caused
by the delay in planning authorities receiving appropriate advice
from bodies such as the EA. KCC fundamentally disagrees with the
EA view on the fettering of their permitting role and it is understood
that other strategic (County) authorities support the KCC position.
Specifically, pollution and public health are material planning
considerations (both national advice and Court cases support this
view). The EA of course owes its origins to a number of discreet
organisations, all of which originally had a public health or
pollution remit. Secondly, whereas the planning process deals
with the acceptability of particular sites for a particular use,
the EA has the role of determining the acceptability of a detailed
process, and of the operator to undertake the process. As part
of this permitting process they are also charged with applying
strict controls on emissions to atmosphere. In carrying out this
role the EA can also take into account tests of technical competence,
financial security and previous convictions, which are not planning
considerations.
2.4 KCC urges that this issue be resolved
expeditiously with explicit advice to the EA of its correct role
in the planning process. Without this clarification the delivery
of the large numbers of waste facilities required to meet Government
targets will be delayed.
2.5 Nature Conservation
Unlike with pollution/health issues, the EA
is constantly providing detailed responses to minerals and waste
consultations on "nature conservation". Despite KCC
advice that we do not need such advice (as it duplicates advice
from English Nature) often responses on consultations predominantly
cover nature conservation. KCC in the past has attempted to obtain
EA agreement to a protocol whereby they only provide such advice
on species or sites for which the EA is a lead authority under
the Kent Biodiversity Agreement, ie those species predominantly
water based.
Clearly there is a need for the Agencies such
as English nature and the Environment Agency, which have a duty
of regard to biodiversity to work in a far more integrated manner.
KCC would request that a protocol is adopted or preferably an
agreement is entered into (see Natural environment and Communities
Bill, Part 8, Charter 1, paras 71&72) by the EA and EN nationally
to ensure that there is a more consistent approach and to avoid
duplication of efforts and waste of resources providing information
which the Planning Authority is not seeking.
3. MINERALS AND
WASTE FORWARD
PLANNING
3.1 KCC as relevant authority for preparing
Minerals and Waste Development Frameworks are finding it difficult
to engage the EA in the process. Specifically, the EA appear to
have a lack of specialist "hydrogeological" resource
to offer comments on site allocations within a reasonable timescale.
4. KCC'S ROLE
AS PLANNING
AUTHORITY FOR
REGULATION 3 DEVELOPMENTS
4.1 KCC is also experiencing difficulties
in the degree of confidence, it can assume on EA responses particularly
in response to flood risk. Our experience is of confused responses,
which fail to distinguish between outline and full applications
and do not make the EA position clear. Whilst we recognise the
difficulty the EA is in, in relation to areas at risk of both
fluvial and coastal flooding, the inconsistency of responses is
a cause of concern and again leads to delay in determination periods.
4.2 The EA also provides excessive comments
on nature conservation issues on Regulation 3 developments.
5. KCC'S ROLE
AS ENFORCEMENT
AUTHORITY
5.1 KCC operates to a published Enforcement
protocol. A large proportion of KCC cases relate to unauthorised
"waste" activities. Whilst we are aware of the Protocol
Number 6 between the LGA and EA dated January 2005 our experience
is that it is not being followed "on the ground" by
the vast majority of EA officers. Our experience is that EA officers
are rarely interested in taking enforcement action and take many
months to reach decisions on cases that are having a severe environmental
impact.
5.2 Secondly, we have major concerns that
in dealing with applications for exemptions under the Waste Management
Licensing Regulations that the EA is not undertaking the "relevant
objectives" as set out in Regulation 17(4). If they are doing
so, the process is not open and officers of Kent CC more often
than not would not have reached the same conclusions. We have
case examples of sites for which the EA has issued an exemption
for which KCC has subsequently had to resort to formal Enforcement
action to have waste materials removed. This raises serious questions
as to whether EA officers are appropriately qualified to form
such judgements. It is recommended that further consideration
needs to be given to how effective the "exemption" system
operates. The KCC view which is, we understand, supported by many
other waste planning authorities that it is being abused to avoid
landfill tax on inert materials. This has resulted in significant
quantities of apparently "inert" materials being wasted
at inappropriate locations in the countryside as opposed to being
directed to sites requiring such materials under the terms of
their planning permissions to achieve the approved restoration
scheme.
6. CONCLUSION
KCC firmly believes that there is considerable
desire within the community for a powerful Agency being seen to
carry out its role in an open, transparent and efficient manner.
With a move to increased public engagement in planning, this desire
can only increase. However, the EA is increasingly viewed by the
public as an organisation that lacks a political will to use its
powerful enforcement and regulatory powers. Whilst understanding
the desire in terms of efficiency to move towards a risk based
regulation policy this appears to have swung too far in terms
of the impact it is now having on public bodies and especially
local authorities in the performance of our duties. We believe
that this reflects a total under-resourcing of its front-end environmental
protection functions. Our experience is that the EA also needs
greater public accountability and a step change within the corporate
body to meet this higher public expectation. KCC is willing to
expand upon these comments if further elaboration would be useful.
Kent County Council
December 2005
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