UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1465-iii

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Environment, Food and Rural Affairs Committee

The draft National Policy statement for hazardous waste

Tuesday 11 October 2011

Lord Taylor, sabine mosner, andy howarth and alison gadsby

Evidence heard in Public Questions 130 - 207

USE OF THE TRANSCRIPT

1.

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.

3.

Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.

4.

Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Environment, Food and Rural Affairs Committee

on Tuesday 11 October 2011

Members present:

Miss Anne McIntosh (Chair)

Thomas Docherty

George Eustice

Barry Gardiner

Mrs Mary Glindon

Neil Parish

Dan Rogerson

Amber Rudd

________________

Examination of Witnesses

Witnesses: Lord Taylor of Holbeach, CBE, Parliamentary Under Secretary of State, Department for Environment, Food and Rural Affairs, Sabine Mosner, Deputy Director Waste Strategy and Regulation, Andy Howarth, Head of Hazardous and International Waste, and Alison Gadsby, Senior Hazardous Waste Policy Adviser, gave evidence.

Q130 Chair: Good morning and welcome. My Lord Taylor, first of all may I congratulate you on your appointment and the move to Defra, which I know is a subject very close to your heart? Thank you very much for being with us today participating in our inquiry on hazardous waste and the National Policy Statement inquiry. For the record, may I ask you to introduce your team?

Lord Taylor: I will be delighted to. Sabine Mosner is Deputy Director of Waste Strategy and Regulation, Andy Howarth is Head of Hazardous and International Waste and Alison Gadsby is the Senior Hazardous Waste Policy Adviser. May I say that I am very pleased to be here? This is the first time I have been before such a Committee, so hesitancy and uncertainty, I hope, will be forgiven while I find my feet.

Chair: We will try and be gentle with you. We are very grateful for you being here so early. I would like to ask Thomas Docherty to start.

Q131 Thomas Docherty: Thank you, Madam Chair. Congratulations, Lord Taylor, on your new post. What evidence has been used to establish the needs case as set out in the National Planning Statement?

Lord Taylor: The needs case has been assessed: it is part of the National Policy Statement. The purpose of the new powers under the Planning Act is to provide for strategic sites. As an example, while 160,000 tonnes of waste oil are suitable for regeneration, there is currently just one plant, which is capable of recycling 50,000 tonnes per annum. The NPS has identified this as an area where we think there is further need in the UK to deal with it.

Q132 Thomas Docherty: I do not know if you have seen the evidence we took from the industry prior to today. One concern raised with us was that the last assessment of the existing capacity was carried out in 2008; I think that I am right in saying that-apologies if I am wrong. Is that correct or has Defra done an assessment since then? If that is correct, are you satisfied that is a recent enough review to furnish you with the correct information?

Lord Taylor: No, it is not sufficient to use as the database we would like to use in the publication of the final document. The document is currently out for consultation, and the 2008 data was the only reliable data on which we had to build. There is going to be data available from 2010, and we will be incorporating that into the Needs Statement, which will form part of the final document. We hope to be more up to speed, and indeed the policy itself will be revised in 2015. We see this as a continuing process, just providing some fixed points about which the need can be assessed.

Q133 Thomas Docherty: I am grateful for that answer. When preparing the NPS there has been an assumption that not all the current sites would seek to have their current licences renewed or extended. Has the Department done any detailed analysis of individual sites in order to reach that conclusion?

Lord Taylor: Not that I know of, but I will ask if any of my colleagues are able to refute that.

Andy Howarth: Linking back to your earlier question, Defra produced a summary of needs in 2010, in the Strategy for Hazardous Waste Management for England, which is a document available on Defra’s website. In putting that needs case together, we discussed with industry, in stakeholder engagement directly, the sorts of needs that they thought were in place. In some cases the industry will have used their own facilities as examples of where they think there is either a need or there is sufficient capacity existing. In terms of looking at individual facilities-for example, in ship recycling-it would be to understand what already exists, and then weighing up the need based on that.

Q134 Amber Rudd: Will applications to renew planning permission for existing facilities that are over the Planning Act thresholds be determined under the NPS procedure?

Lord Taylor: Yes. The current thresholds as defined will be 30,000 tonnes for conventional hazardous waste and 100,000 tonnes for landfill.

Sabine Mosner: In relation to extensions of existing facilities, the NPS only applies if the increase in that capacity is a further 30,000 or 100,000. However, there is a facility under the Planning Act for an extension below the NPS level to be considered under the NPS.

Q135 Amber Rudd: I have not quite got that last point.

Sabine Mosner: If you want to extend a planned facility by 20,000 tonnes, in principle that would be taken under the Town and Planning Act, because it does not meet the 30,000 tonne threshold. There is an option in the Planning Act that would enable Ministers to decide that it should be considered under the NPS processes if it was considered sufficiently significant.

Q136 Amber Rudd: Do you think the NPS is clear enough on that?

Lord Taylor: In the sense that the answer we have given is complex and quite nuanced, we could consider looking at that and making it more explicit if you feel the current wording is not clear. We all know the Town and Country Planning Act procedure is a bit long winded and does not necessarily fit the case we are trying to present under these proposals in every circumstance. Where facilities have a strategic purpose, we are hopeful that we can use the Planning Act as the mechanism for speeding up the process. As Sabine made clear, this is certainly what we want to do where it is expanding an existing site.

Q137 Neil Parish: Good morning Lord Taylor, and welcome to your new ministerial role. In terms of new technologies, we are moving in a very fast world. Do you think the NPS should more clearly emphasise the role of emerging technology in regards to hazardous waste management and being able to seek planning permission if it is a new technology? We are moving in a much faster world than before.

Lord Taylor: Yes. The schedule of what consists of hazardous waste is associated with the EU directive.

Neil Parish: We will talk about that in a minute.

Lord Taylor: It is not a UK Government definition. Undoubtedly products and technologies are being developed all the time, and that is very important. There is flexibility built into the system, so there should be no delay. If we, as a Government, are persuaded that something is hazardous and ought to come under these arrangements, we would not hesitate to make representations to add it to the schedule.

Q138 Neil Parish: Can I press you on the flexibility? Government and planning authorities are not noted for their flexibility. How would it work? Suppose that I am a company and I have come up with a new system of recycling a particular waste that is very innovative, but it is new. How are you going to deal with that?

Lord Taylor: I see. You are thinking of the actual processing?

Neil Parish: Yes.

Lord Taylor: I was answering, in effect, about the arrangements.

Sabine Mosner: The NPS is technology-neutral. The Needs Statement is based on the forecasts of hazardous waste arising that we need to process. It is neutral as to the technology best capable of doing that, as long as it pushes the processing of that waste up the waste hierarchy. That leaves it open for developers to come forward with whatever new technology they might want to use. As the Minister said, it is not neutral in relation to the hazardous waste arising, because that is part of the process of establishing needs.

Q139 Neil Parish: If it is a smallish application, as often new technologies are, it will not necessarily be dealt with by Government but by a planning authority.

Q140 Neil Parish: How can you influence a planning authority? Often they say no, because that is the way they are.

Lord Taylor: It is actually not part of the process that Government should seek to influence the planning policy.

Q141 Neil Parish: It is all localism, is it?

Lord Taylor: Indeed. You are on message, if I may say so, Mr Parish.

Neil Parish: Almost, yes.

Lord Taylor: The key element is that there is nothing to stop new technology being used in an existing facility, and I suspect that is where new technologies will probably be housed. All waste, whether hazardous or not, should be seen as a resource rather than as a problem. It is, of course, a problem, but by moving it up the waste hierarchy we increase its value and provide an economic incentive for people to develop new technologies by making that process as efficient as possible and moving it as far up the hierarchy as possible.

Q142 Dan Rogerson: If I cast my mind back to the passage of the 2008 Planning Act, although the two parties now in coalition, then in opposition, had some concerns about some aspects of it, one of the things we were all in agreement with was that we wanted a process where as many of these overarching questions as possible could be settled in the NPS, so that what we were looking at were specific local issues around the facility. This issue of technology is an interesting one. If the NPS does not make any judgment as to what the technology is, might it be possible for those who were opposed to the facility to oppose it on the grounds of the technology being dangerous, untried and untested? We are then back to square one: multiple court cases, appeals, and inquiries, which the NPS was supposed to get us away from.

Lord Taylor: The whole process is designed to reinforce the waste hierarchical upward movement. I do not say that this is going to be friction-free; I do not think anyone could say that the development of hazardous waste facilities in the UK is going to be friction-free. However, under the Planning Act the powers vested in the Infrastructure Planning Commission are being abolished as part of the Coalition Government’s programme. The Secretary of State for Communities and Local Government will be the responsible person taking decisions under the Planning Act in respect of this, and many other similar processes.

Q143 Neil Parish: Lord Taylor, you referred to Europe and the fact that Europe has its sticky little fingers over the Waste List, and is increasing the number of substances that are going on this Waste List all the time, because of the socalled precautionary principle. Is this desirable for businesses or is it just adding another burden?

Lord Taylor: I have my own views on the precautionary principle as applied to a whole range of activities. It certainly has its deficiencies. The place for that argument is in Europe itself, and winning that argument is part of the strategy the Coalition is determined to get over. It is not in our interest to inflict unnecessary burdens on industry or on the waste recycling industry as a whole.

Q144 Neil Parish: It is about getting the balance right between safety and what is necessary to recycle.

Lord Taylor: It is hazard and risk; it is that argument you will find popping up under all sorts of heads. Quite a lot of things are hazardous, but the question is what risks are involved.

Q145 Neil Parish: Lithium batteries may be required to be dealt with as a hazardous waste during the lifetime of the NPS. Have you made assessments of the possibilities and how to deal with that?

Alison Gadsby: Lithium batteries, as you have just suggested, are not currently defined as hazardous, but the review in Europe may make them hazardous; we do not yet know. We cannot make provision for them in the NPS, because the NPS is based on hazardous waste as defined in the Hazardous Waste Regulations 2005, and lithium batteries are not yet hazardous waste. However, there is scope for flexibility, and we are exploring the possibility whereby we can put some wording in the NPS to show it is possible that applications for other waste streams not covered by the NPS may appear in due course, and these would have to be considered on a case-by-case basis.

Q146 Neil Parish: It fits in with my first question about emerging technologies: if the lithium can be recovered through a process, surely we should be encouraging that. I do not see much encouragement going on.

Lord Taylor: I hope the opportunity to recover any particularly useful materials is incentivised by moving materials up the waste hierarchy. It does not matter how it is dealt with; there is an incentive for people to handle these things. The fact that a site is used for hazardous waste does not mean to say that something not currently identified as being hazardous cannot be processed at that site. There is more flexibility to allow for technology than perhaps-

Q147 Neil Parish: At existing sites, probably, yes.

Lord Taylor: Yes, at existing sites. If one is looking at lithium batteries, to get up to the 30,000 tonne threshold you would be looking at an awful lot of batteries. Realistically, it is more likely to be a bolton to an existing facility, unless it is a Town and Country Planning Act-type application, which is also possible. There is a belt and braces type of opportunity here. The NPS is there to provide a framework that is certain for the industry and certain for the operators in that industry in knowing how they will fit in to the Government’s strategy. Within that, we are confident that the industry itself will respond to new needs, and I do not think that is an unreasonable expectation, given their past record.

Q148 Thomas Docherty: Lord Taylor, you will be familiar with the disagreement between some of the bodies about the timing of applications for permits. While the NPS recommends that it would be appropriate to submit for environment permits at the same time as development rights, the IPC suggests that in some cases it might be appropriate to do that earlier, particularly if there are pollution concerns. Do you agree with the IPC that that approach should be adopted?

Lord Taylor: Our general view is that the planning and the environmental permitting systems have different objectives. They are two parallel processes, but they are not synchronous. Our general view is they should be kept separate.

Q149 Thomas Docherty: In terms of the timing, do you think there is merit in the IPC’s suggestion that, where there are particular environmental issues, prior submission to the regulator would be appropriate before applying for developmental permits?

Lord Taylor: It may be. The objective of the environmental permitting system is to protect human health and the environment by controlling emissions and discharges through the lifetime of a facility. However, it does not consider the wider impacts involved, and, given the different objectives, it is entirely reasonable that they should be kept separate. As far as the timing is concerned, you make a point that is worth us considering.

Q150 George Eustice: The IPC in their evidence have raised an issue about some of the terminology used in the document, in particular the lack of consistency-for example, in using terms such as "liaise", "consult", "seek advice" and "co-operate". Do you think there is a good reason for using different terminology or should it be standardised so it is clear what their relationship with other agencies, like the Environment Agency, should be?

Lord Taylor: I suppose there are nuances with these words. However they are used, the semiotics of meaning is quite interesting: what is the difference between a consultation and a liaison? We will look at these sorts of comments. The whole point of the document is to try to be as unambiguous as possible, so we will try to ensure the language reflects that.

Q151 Chair: In terms of educating the public about the environmental benefits of hazardous waste infrastructure and improving public perceptions, what steps are you taking to reach that goal?

Lord Taylor: A very important aspect of any planning is to try to reassure the public about the safety of the facilities, the purpose, and that factors such as access and traffic have been taken into account. I would expect all applications that come forward under these provisions to take those into account, because reassuring people is a very necessary part of getting a buyin to the process.

Q152 Chair: Do you not think that by raising it as an issue you are going to increase anxiety? As a constituency MP, whenever there is an application from a developer for an energy-from-waste plant, before you even cross hazardous waste there is a public perception in the UK that we do not accept them. That is widely different in other countries, like Scandinavia, Austria and Germany, where they realise there are benefits to energy from waste, or hazardous waste. My concern is that, by requesting that the developers raise this issue, you are going to put the community against the project. Is there a role for Government to go out and say why we need hazardous waste plants?

Lord Taylor: Indeed. If you take the role of someone like me, it must be that this needs emphasising. I am not in favour of this sort of development being achieved under the radar; that is not good public policy. Good public policy is achieved by being transparent and open, and demanding we can be satisfied that there is no risk. We need this documented and evidenced before the Secretary of State is able to approve such a facility. There is no method that fits with the Government’s current agenda that could force such developments on local communities.

We all know about the problems of nimbyism. We can see it in a whole range of activities. Even in the Localism Bill, which I was helping on before I got this lofty promotion, we see this is an underlying problem of British politics. It is often about being patient, and building people’s confidence. The fact that we have the words "hazardous waste" on this document makes most people prick up their ears, and say, "This must be dangerous." We have to get over that.

Q153 Chair: Could you explain to the Committee the processes that a developer has to go through to assess community anxiety and stress, and how that process will be managed?

Lord Taylor: Prospective developments have to address the anxiety and stress by providing clarity about the technologies they will be using, and how any potential risks will be managed. This aspect of health and reassuring is built into the NPS. We need to know that the applicants have taken this factor into account, and it will form part of their submission.

Q154 Chair: In Paragraph 4.10 it says, "Where relevant, applicants should carry out an assessment of community anxiety and stress," but it does not set out what the process should be.

Lord Taylor: We were of the view that it was not necessary to have a rigid format for doing this. If we receive a considerable amount of opinion to the contrary, we will look at this in the light of the consultation process and see if a more formalistic process is desirable. The nature of these applications is that they are going to be slightly different: a landfill site taking building rubble with asbestos is going to be different from something involving chemicals, which people might be more on alert about, because it is less familiar. The less familiar people are with things, the more anxious they are.

Q155 Chair: If the developer were to approach the parish council at the earliest possible stage, would that satisfy the Department?

Lord Taylor: It would not satisfy the Department in the sense that it is not the only thing they need to do, but it would be a very wise strategy.

Q156 Chair: This is one of those areas where there seems to be a bit of ambiguity for both the developer and the community. The process could be clarified.

Lord Taylor: There are two schools of thought about that. There is a school of thought that says you should lay everything down, so that everybody knows and can start at the beginning and come out at the end. On the other hand, there is a recognition that circumstances are different, locations are different, and perhaps the process is best left to the judgment of the individual applicant and the community. What is key is that a dialogue is going to be necessary, and how that takes place, whether it takes the form of a consultation or a liaison-if I may use our previous discussion-is a matter for them.

Q157 Chair: Are you satisfied that the current level of ambiguity is more likely to give rise to a legal challenge?

Lord Taylor: I do not think so. A legal challenge can occur at any time; a successful legal challenge is what I think you, Madam Chair, are more concerned about. A successful legal challenge would have to show that the process did not allow proper process. You do not need to define the proper process to observe whether the requirements of the NPS have been taken into account, which is that the issues involving public anxiety and health have been properly addressed by whatever process has been used.

Q158 Dan Rogerson: On the subject of providing as much information as possible, there are a couple of things that applicants have been asked to carry out as part of the application process, and we have had evidence to say that they are concerned about the lack of detail about how that should be done. That includes whole-life costing, and the measurement that ties into community anxiety and stress assessments. That is quite a variable thing. It is not dissimilar to what you have just been saying, but there are particular concerns around those two areas.

Lord Taylor: I put a point of view in response to Madam Chair’s question to me, which was putting the other side of the argument, because I feel it needs to be presented, and it shows you where we were when we wrote the document. As I said earlier, we are prepared to look at this in light of consultation if there is a feeling that perhaps it ought to be more structured. I cannot emphasise enough that there is an alternative way of looking at it that provides for a more suitable process, depending on the proposal concerned, its location, and the nature of the hazardous waste facility.

Q159 Chair: Do you have any evidence in the Department that there has been a delay in some of the applications coming forward until the NPS is in place?

Lord Taylor: We do have a particular anxiety expressed by one applicant, who is in the process of going through a Town and Country Planning Act application and now faces the prospect of having to reapply under the Planning Act process. We are aware of that and seeing if there is a way of dealing with that in this phase of changeover. I just put that on the record. I do not know that there is any backlog of people waiting for the whistle to blow. There is no evidence available to us.

Q160 Chair: Do you think there is a possibility that developers may submit applications for larger facilities than they would otherwise have thought of, just to bring the applications within the Planning Act?

Lord Taylor: That is not impossible. If somebody applies for a 30,000 tonne facility, they do not necessarily have to reach that capacity immediately. The risk comes if they seek to renew and they have not reached their target, in which case they might not get that renewed. We assume there will be some dynamics in this process-that people will be allowing for some growth in their enterprise as part of the development. We do not expect this to be a significant issue, but we will keep ourselves alert to this situation should it emerge as a problem.

Q161 Chair: Is there any evidence at all of any crossborder implications? With the streamlined procedure under this applying only in England, will developers gravitate towards sites in England rather than the devolved Administrations?

Lord Taylor: Currently 80% of the sites are in England. It is a pretty Englandbased facility extending across the whole of the UK. We do not see this process changing particularly as a result of this proposal.

Q162 Chair: What do you believe the average cost of preparing an application under these new procedures would be?

Lord Taylor: I cannot say; I do not know if any of my team can.

Sabine Mosner: We have something, don’t we, Alison?

Alison Gadsby: We do have some figures. They are indicative figures provided by industry and we are not totally sure what they include. They are the development costs, but I do not know whether they include the planning fees or not. We have an example of a soil treatment centre where we have been given an indicative cost of £2.5 million. A stabilisation and solidification centre, which is also soil, would be a little less, at £1 million to £2 million. The most expensive one we were given was landfill, which could go up to £12 million.

Sabine Mosner: Those are the figures for the facilities-

Alison Gadsby: Yes, the facilities.

Sabine Mosner: -not for taking them through the process?

Alison Gadsby: We do not think so, no. They are some indicative figures that we were given by industry for the development, but they did not provide a breakdown of what was included in them.

Q163 Chair: If industry put to you that the average cost of preparing an application was six to 16 times more than the other procedures, would you accept that as an accurate figure? Is that the level of cost that we are talking about to get a streamlined decision?

Lord Taylor: I cannot judge that. It would seem to me highly unlikely. One of the biggest cost elements of a Town and Country Planning application must be the time delay alone, and this is a much more streamlined process. It may be demanding, but where we are dealing with facilities of this size you would expect people to be prepared to justify their application properly by providing the Secretary of State with the necessary evidence. I cannot judge the figures.

Q164 Chair: If you have any comparative figures between the current costs and projected costs of the new planning procedure, it would be helpful to have that in writing.

Lord Taylor: It might be quite difficult to assess, I have to say.

Q165 Chair: It does seem quite substantially proportionately higher.

Lord Taylor: We will see what we can provide, but we would be dependent on input from industry. We have no details ourselves.

Q166 Chair: What is the status of the NPS to the National Planning Policy Framework?

Lord Taylor: The National Planning Policy Framework does not include hazardous waste, because it a separate operation we feel we need to keep discrete. They are compatible; we hope that there is no disharmony between the objectives of the NPPF and the NPS that we are considering today. They both have this rather controversial presumption in favour of sustainable development at their core. The NPPF sets out Government planning policy in the context of the Town and Country Planning regime, whereas the NPS for waste is part of a strategic planning process built on the Planning Act 2008.

Q167 Chair: Will Planning Policy Statement 25 apply to the new procedures?

Lord Taylor: Could someone help me on that?

Sabine Mosner: Yes. The way I would explain it-and I would look to my colleagues to correct me if necessary-is that the NPS is designed to substitute for the normal Town and Country Planning, and therefore statements like PPS 25 or PPS 10, because it is a different system. However, it is entirely consistent, as the Minister said, with the tests applied in Town and Country Planning. PPS 25 addresses flooding, where the definitions are very close and run parallel, and presumes against development in the highest-risk areas, but allows, under certain circumstances, an exceptional development of facilities where that might be necessary. That would be governed not by PPS 25 but by what you see in the NPS.

Q168 Chair: Do you think it is acceptable, given the potential environmental and health risks that will be posed by the flooding of a hazardous waste treatment facility, that such facilities could be approved in areas where there is a greater than 1-in-100 risk of flooding in any one year?

Lord Taylor: There was a lot of discussion about development on flood plains, and we have moved on from the early phase of that argument to acknowledge that some development on flood plains is necessary. The key thing is the process of flood protection and the fact that the site is adapted in such a way as to mitigate the risks that might arise from flooding. We have the classic example of what to do about ship breaking, which is by definition maritime and prone to flooding, but the key thing is that the application needs to acknowledge that and show satisfactorily to the Secretary of State that the risks that arise from such things as flooding are taken into account by the developer. That is a reasonable position to take on all these issues.

Q169 Chair: Is there a case for ruling out any development of hazardous waste facilities in an area with a flood risk higher than Zone 1?

Lord Taylor: I would not say so, for the reasons that I have suggested. Often the most suitable sites may well be in areas that, in general geography, might be prone to flooding, but where strategic transport or reuse of brownfield sites may be adapted to provide a risk-free environment for the development of these facilities. I would not be as categorical as you have been, Madam Chairman, in saying that it could never take place in such areas.

Q170 Barry Gardiner: Minister, you are trying to sound very reasonable in all this.

Lord Taylor: I am a very reasonable man.

Q171 Barry Gardiner: Of course you are, but you are leaving this openended and the Committee would like to tie you down a bit more. You said, "It may be a suitable site; we do not want to block this off, and the debate has moved on." What would give us a lot more confidence in what you are saying is if you were to give us some examples of the sort of mitigation profile that developers would have to incorporate to give the public, and you as the Department, assurances that, given a flood event, we were not going to see real damage caused to the environment and to people’s well-being and livelihoods in the surrounding areas. Can you give us those specific additional protections that might be included?

Lord Taylor: I am not an engineer, but I am a fenman, so I am well aware of what you have to do to try to keep water managed, and we are talking about water in this heading. One of the most frequently used systems is bunding to physically impede the entry of water. A second important facility is to ensure that any egress from the site itself is properly protected, so that any structure that allows flood water to come in is dealt with. In many ways, you only have to go along the river here to see what has been developed in housing, on the south bank of the river in particular, around Rotherhithe where houses are on stilts, in the sense that they have got garages underneath. One of the things about flood management is to build the structure so that it incorporates these features as a matter of routine.

The only reason why it is worth arguing this case is that it is important to remember that there may well be certain circumstances where these facilities are best situated with marine or river access. It is important that we should not rule out a low-lying site just because of this reason. Adapting and militating against floods is something we are going to have to live with in relation to a lot of other facilities.

Q172 Barry Gardiner: The Committee would not wish you to rule out anything that was potentially a suitable site; that is not the intent here. The intent is to ask, given that you have just suggested eminently sensible mitigation and protection solutions, what steps will you and your Department be taking to ensure that those are conditions of development going ahead, that they are stated up front to be so, and that they are not just the sort of things you might be looking for, but could potentially be overlooked?

Lord Taylor: In the Statement, at 5.7.16, there is a whole chapter under mitigation, which I think the Committee would find useful. The whole of 5.7 is about this particular area, and I would like to draw that to the Committee’s attention.

Q173 Chair: We are asking you the questions because we do not believe they are sufficiently clear to give the protection. For example, would you be prepared to distinguish within the NPS an approach being taken to flood risks by infrastructure type? You mentioned earlier there are many types of hazardous risks, and it is how we manage the hazard.

Lord Taylor: Yes. Perhaps this reinforces what I have been saying: the whole purpose of the session today is for the Committee to express its view and we are here to listen to it. It is probably useful for me to explain where the Government is currently, part way through the consultation process, which ends on 20 October. We currently think there are sufficient safeguards in the NPS to balance the flood risk with the need for any developments. As it states in the NPS, "Applications for hazardous waste projects of 1 hectare or greater in Flood Zone 1 and all proposals for hazardous waste projects located in Flood Zones 2 and 3 should be accompanied by a flood risk assessment (FRA). A FRA will also be required where a hazardous waste project [is] less than 1 hectare".

Q174 Chair: We have that. If the Environment Agency asked you to rule out a particular development, would you do so?

Lord Taylor: We would have to bear in mind the advice we received from the Environment Agency. We would have to have a very good reason for seeking to override that, but that is for the Secretary of State to decide. Ultimately, decisions on these matters are political decisions taken by an accountable Minister.

Q175 Barry Gardiner: You have focused our attention-helpfully, thank you-on page 45, Clause 5.7.16. Is it not just a statement of the blindingly obvious? Is it not just a statement of fact? It says, "To satisfactorily manage flood risk, arrangements are required to manage surface water and the impact of the natural water cycle on people and property." Yes, of course they are, but the point that we would like to get from you is some clarity about intention and about conditionality. It is about ensuring that there are more stringent conditions around this matter-as contained in the previous page on assessment of applications-such that no application would be granted unless there were clear, mitigating measures such as that incorporated. It is putting it from a statement of the blindingly obvious to a statement of conditionality that an application will not be approved unless they have dealt with those issues.

Lord Taylor: I can reassure you on that point. The Secretary of State will need to be satisfied of that. I hope you are not regretting finding common sense in this document, because it is built on common sense. If common sense is blindingly obvious, we do not mind restating it occasionally, because it is the foundation of the process. It will be up to the Secretary of State to be satisfied that these factors have been properly taken into account. He will act on the advice of the Environment Agency and of my Department on this matter, but ultimately the Secretary of State has to make a decision.

Earlier I started talking about bunds and sumps. The NPS is not the place to be putting those; it is for the engineers making the submission to be able to build those into the application so that it meets the requirements.

Q176 Barry Gardiner: And it is a requirement?

Lord Taylor: Yes.

Q177 Barry Gardiner: The only point of dispute between us is whether it is at present a requirement. If it is, and you have just told the Committee it is, then we would all be happy.

Lord Taylor: Yes, it is in here under the IPC decisionmaking on page 44. It says, "The IPC should be satisfied that where relevant", and then it goes on to catalogue them.

Q178 Chair: The IPC will not be there.

Lord Taylor: No, but the Secretary of State is in effect taking on those functions. That is the succession in practice; for IPC read "post-IPC, Secretary of State". In flood risk areas the project is appropriately flood resilient, according to the paragraph.

Q179 Barry Gardiner: It does not say that, does it?

Lord Taylor: It does.

Q180 Barry Gardiner: No. It says, "The proposal is in line with any relevant national and local flood risk management strategy."

Lord Taylor: If, Mr Gardiner, you could look at page 44.

Q181 Barry Gardiner: I am.

Lord Taylor: At the bottom of the bottom column it says, "In flood risk areas," and we have defined those as 1, 2, and 3, "There is appropriate flood resilience and resistance, including safe access and escape routes where required, and that any residual risk can be safely managed over the lifetime of the development." I think that is pretty specific.

Q182 Barry Gardiner: I am happy.

Lord Taylor: Yes, so am I having found that.

Barry Gardiner: It took a long time to get there, but I am happy.

Q183 Neil Parish: I very glad to see Mr Gardiner is happy. That has made me much happier. Minister, insects and insect infestation: normally hazardous waste does not attract insects, for obvious reasons; they probably do not live too long after being attracted by it. Why has insect infestation been included in the generic impact section of the NPS? Is it a belt and braces process? Do you know?

Lord Taylor: No, I do not know. I will ask somebody who does.

Alison Gadsby: It is a belt and braces approach. It is in there as it would be for other planning applications.

Q184 Neil Parish: Is it the idea that the insects, if they did survive the hazardous waste, could then spread it? What is the logic behind this?

Alison Gadsby: Just that it might be a nuisance, I guess, if there were insects at the site.

Lord Taylor: When people see waste, they think of insects. They think of rubbish, rats, mice, and flies and those sorts of things. Some satisfactory consideration of this aspect might be considered wise.

Q185 Thomas Docherty: The Prime Minister has placed great emphasis on reducing regulation and bureaucracy as part of the Government’s drive. Is this an example where you may wish to go back and see if it is really necessary, because it sounds as if there is some ambiguity as to whether or not this is needed?

Lord Taylor: The question of the insects?

Q186 Thomas Docherty: Yes.

Lord Taylor: Page 41 lists dust, odour, artificial light, light pollution of the site, smoke, steam and insect infestation: this is all public general nuisance, which it is reasonable to say should be taken care of by any developer. The public would want reassurance that these things were being dealt with-noise and all the sorts of things that could be considered to bring distress to neighbours in the operation of such a site.

Q187 Amber Rudd: Given that the Government’s localism agenda is intended to decentralise as much as possible, it is surprising to find that local communities do not have any power of veto. Do you think that is a contradiction?

Lord Taylor: I do not think the Localism Bill is designed to give local communities a veto on anything; it is designed to give local communities a role. The whole concept from neighbourhood planning upwards is about empowering local communities in the process. As local communities become more used to involvement and accepting this role, any development will have to take account of local sentiment. It would apply both to the developer’s consideration of the project in the first place, and the Secretary of State’s consideration of the application when it was made.

Q188 Amber Rudd: Local communities might respond to that by saying, "If we have no voice in this to stop it, we do not really feel consulted. What is the point of consulting us if we cannot actually say no?"

Lord Taylor: They certainly have a voice: that is very much part of what the development process would allow for. What I was trying to express, perhaps inadequately, was the notion that local communities are going to become much better at expressing themselves. It will not need the creation of a "no waste near here" type campaign, because there will already be structures in place through which the local community will already have been involved in dialogue. That has been overridden by the current process, and the reason why the Localism Bill has been introduced has been to formally put local communities into thought processes. They do not have to be formally, institutionally involved-that is not necessary.

Q189 Amber Rudd: Local communities will be able to engage, insofar as influence the structure of the site, but they will not be able to say no?

Lord Taylor: I do not think they can at present.

Q190 Amber Rudd: No, they cannot. There is no change there?

Lord Taylor: No, there is no change there.

Q191 Chair: Where does localism fit in? What level of commitment do we give to localism?

Lord Taylor: I hope I said, Madam Chairman, in my answer to Ms Rudd, that empowerment of local communities means what it says: it gives local communities a sense that they have a real say, and not just a tokenistic say, in what goes on in their local areas. The fact that they do not have the power of veto does not reduce their voice.

Q192 Amber Rudd: They can influence design, location-that sort of thing?

Lord Taylor: Yes.

Q193 Amber Rudd: Whereas they cannot at the moment. There is more input allowed through the Localism Bill?

Lord Taylor: Well, on all planning applications under the Town and Country Planning Act. It is going to make a difference to the way in which local communities feel they can influence outcomes. Some of these facilities will be on existing sites. Some of these applications will be about the extension of a site that is already in existence. I would have thought this would give local communities a big opportunity-they may have grown to love their local site, I do not know-to be involved in a way they would not currently have.

Q194 Chair: Does it have to be in the neighbourhood plan? If it is not in the neighbourhood plan, will it be foisted on?

Lord Taylor: We are using words that are restrictive, like "veto" and "foisted". I do not see that as being the process. I hope this process is based on reason, argument and persuasion. After all, the applicant has every interest in making sure that the local community is supportive of the application. If I were an applicant, it would make the application that much more persuading if the local community were on side.

Q195 Mrs Glindon: Clearly, you have already touched on the role of Ministers, but what is the rationale for making the CLG Ministers responsible for deciding whether to approve largescale hazardous waste infrastructure applications? Would it be better if Defra Ministers made these decisions? As the decisions on waste water infrastructure projects are to be made jointly by CLG and Defra Ministers, could the same joint approach be taken to the decisions on hazardous waste infrastructure?

Lord Taylor: Currently, planning applications are a matter for Communities and Local Government, so it would require a change if this were to become a Defra responsibility. I am not sure, frankly, whether Defra is keen to undertake this responsibility. We do not have the skill base for doing it, and while we might have the technical base for considering the needs case, we would not necessarily have the capacity for dealing with the actual planning application itself. There is bound to be crossdepartmental consultation on such applications. They are strategically important-that is why there is a specific process for them-but it is probably best to define one individual, and in this case it is the Secretary of State for Communities and Local Government.

Q196 Mrs Glindon: We have talked about the confidence of the public in the process. Given the technical role of Defra, as opposed to the role of the Local Government Minister, would that joint approach give more confidence to the public that the process was being carried out in the best possible way for public safety? In keeping with the spirit of the Localism Bill, should not people feel that everything has been done to the utmost?

Chair: Minister, just to remind you that waste water infrastructure is treated on a joint decision basis.

Lord Taylor: Yes. One of the things that has already become clear to me in Government is the amount of crossdepartmental consultation there is. Many issues are not clearly defined; they do not fit into neat boxes. Departments of State have to be discrete, but ultimately they can only work in consultation. It would be unusual for CLG not to involve Defra in consideration of things; because of the technical nature of some of the applications involved, the Defra skill base would be important.

The permitting process, which derives from the actual use of the site, is under the control of the Environment Agency. We mentioned the Environment Agency before in considering flood risk, and other matters. I cannot see this process being run away with by CLG without Defra being very much involved.

Q197 Neil Parish: What will be the role of Defra through the planning decision process? Will they just be a consultee? If they said, "We believe the system this company wants to operate to deal with hazardous waste is not safe," how would that then be dealt with by the planning authority? Could the planning authority overrule Defra’s position?

Lord Taylor: If you say the Secretary of State for CLG is the responsible Minister, that means what it says. As I said in my previous answer, I cannot imagine this process ignoring Defra’s input, because of the nature of the technical expertise involved, the nature of the Environment Agency’s involvement in many of the things and Defra’s role in producing the NPS in this area. Defra would not have a veto.

Q198 Neil Parish: I am not saying Defra should have a veto. What is the formal process through the planning system? Is there a role? The local government departments may not have the necessary expertise: that is what we are talking about. I do not think they should have a veto, but they should have a strong role in this.

Sabine Mosner: We need to remember that the process itself is a new process, but it is a new process that will change again by the time this comes into effect. Not everything will have been tied down to every degree at the moment, but Alison may be able to shed a bit more light on the process.

Alison Gadsby: The Minister has already explained why it will be CLG that takes the decisions, and they are the experts on the planning system. We are talking about hazardous waste here, but there are a lot of wider planning aspects, which they have the best expertise to deal with. They will make their decisions on the basis of this National Policy Statement, which has been drafted by Defra, so that is a big Defra input. If, when they are considering an application for hazardous waste infrastructure, there is not sufficient clarity for them to make the decision, there is something difficult they want to discuss with Defra, then it is my understanding that they can do that under the new system.

Q199 Chair: Why has one procedure been decided under the same NPS structure for waste water infrastructure projects, where there will be joint decision making by Defra Ministers and CLG Ministers, and a separate procedure has been agreed for hazardous waste?

Lord Taylor: I can only surmise, but I think I might be able to help you Madam Chairman. The responsibility for water rests with Defra. Water is not going up a waste hierarchy.

Q200 Chair: Waste is Defra-they are both exclusively Defra.

Lord Taylor: Yes, but waste is not the end product in this process, whereas water is the end product in the case of waste water, and that remains with Defra.

Andy Howarth: Traditionally, CLG has had a role in waste planning. It is not unusual for them to continue to have a role in waste planning in this situation. I am not familiar with the water, but it might be slightly different. Certainly for waste, they have always had a role in waste planning.

Dan Rogerson: To give an example local to me, it was the Secretary of State at CLG who granted the final approval for the incinerator in Cornwall.

Q201 Amber Rudd: The Environmental Services Association was concerned that operators might be discouraged from developing new facilities if they feared that they could be undercut by operators using cheaper but possibly sub-optimal methods, either here or abroad. With this in mind, are you confident there is sufficient incentive for the industry to develop the new infrastructure set out in the NPS?

Lord Taylor: This goes right back to the whole business of whether the NPS is technologically neutral or not. It is indeed neutral, so there will be an incentive on operators to find methods that are effective and costeffective in the process. I will accept that, but I do not see that as being undercutting; I see that as economic efficiency.

Q202 Amber Rudd: How will you ensure that the Environment Agency has sufficient resources for the enforcement procedures it will need to follow up with? Do you see that as an area of concern?

Lord Taylor: Not currently, but resources are an area of concern across the whole of Government at the moment. The advantage of this process is that it puts a framework in place whereby the participants have every incentive, through the committee process and everything else, to ensure they run tight ships. That must be in the interests of having a light inspection regime, based on proper selfmanagement of these sites by the operators. Frankly, the risk of abuse of this process by an operator would involve huge financial consequences. Therefore, it is the right approach.

Q203 Chair: We will still observe the requirements of the European Union-the standards are very high-to ensure that there are no emissions and such.

Lord Taylor: The Environment Agency will have responsibility for ensuring that European regulations are met in respect of the operation of any waste plants.

Q204 Barry Gardiner: Minister, we rapped your Department over the knuckles when we looked at the waste water NPS and said that we thought there should be a higher profile in the discussion of any future NPSs. Can you indicate to us how you have taken that on board with the hazardous waste NPS? In particular, how was that helped by embarking on the consultation one week before Parliament broke up for its summer recess?

Lord Taylor: My experience of consultations is that they are never at the right time. It does not matter when you set them up-there is always a reason why it does not fit people’s diaries.

Q205 Barry Gardiner: The code of practice is what Defra has to adhere to, not somebody’s idea of the right time. The code of practice says that "formal consultations should take place at a stage when there is scope to influence the policy outcome. Consultations to influence the expected costs and benefits of the proposals should be designed to be accessible to, and clearly targeted at"-and so on and so forth. It is often a criticism that consultations are begun just when Parliament goes off on holiday, or, in this case, just when the public goes off on holiday. That cannot be amenable to getting the maximum input and raising the profile of the consultation on this NPS in the way we asked the Department to do when we made the recommendation previously.

Lord Taylor: You may have had an impact; you underestimate your influence, Mr Gardiner.

Barry Gardiner: I doubt it.

Lord Taylor: This particular consultation has gone on for 14 weeks, not 12, which is the statutory requirement, bearing in mind that two weeks’ holiday is the customary amount of time that most people would be away. So there is a longer window than would normally be the case. It is not in the Government’s interest to appear to steamroller this through. It wants maximum buyin and it wants stakeholder involvement.

Q206 Barry Gardiner: My question was quite specific: what are the specific measures you have taken to ensure that this time, this consultation on the NPS has a higher profile than the waste water NPS?

Lord Taylor: We have had stakeholder events, we have had leaflets, and we have had evidence in libraries across the country at a public level. The stakeholder engagement has been considerable. From Parliament’s point of view, we are having this session today within the consultation. The points raised by hon. Members will be taken into account as part of the consultative process. We take this Committee seriously because we recognise the expertise that it has.

I was not being facetious when I mentioned your influence. For the Government to extend the process by two weeks does not happen by chance; it must have happened as a response to the prompting you may well have given it. Parliament has been here for two weeks in September, so there has not been a total oasis of nonparliamentary involvement either.

Q207 Barry Gardiner: Could you provide the Committee with the details of those consultations and events that have taken place, in particular the numbers of people that have been involved, and how that has grown since the NPS on the waste water?

Lord Taylor: That would be very interesting. I cannot give you the figures at the moment, but at the end of the consultation it is normal for those individuals and organisations that have contributed to the consultation to be listed in the response to the consultative process. It would be interesting to see what impact taking a higher profile, as we have with this, will have had on the outcome. I would like to think that a lot of people have been involved, and that it has been productive. Documents such as those that have been produced are there to be improved.

Chair: Minister, we thank you very much for being so generous with your time and for participating, together with members of your team. We will obviously publish our report. We are still waiting for the formal response from your Department to the waste water policy strategy, which I understand is going to be given to us at the same time as the revised strategy. I am sure you will be interested to see our conclusions, and we will get them to you as quickly as possible. Thank you very much indeed. Thank you also to the Committee.

Prepared 14th October 2011