Memorandum by the Environmental Services
Association (PGP 25)
THE GREEN PAPER ON PLANNING
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
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
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
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 separationincluding
materials recovery facilitiesand the storage of waste prior
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 targetsalthough 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
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
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
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.