HC 1465-ii

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

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

 Environment, Food and Rural Affairs Committee

The draft National Policy Statement for Hazardous Waste  

Wednesday 14 September 2011

Jan Gronow

Ed Mitchell, Andrew Coleman and Gill Ross-Jones

Evidence heard in  Public Questions  59 - 129

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Oral Evidence

Taken before the  Environment, Food and Rural Affairs Committee

on  Wednesday 14 September 2011

Members present:

   

Miss Anne McIntosh (Chair)

George Eustice

Mrs Mary Glindon

 

________________

 

Examination of Witness

Witness: Jan Gronow, ViceChair, Waste Management Technical Panel, Chartered Institution of Water and Environmental Management, gave evidence.

Q59 Chair : May I welcome you, and may I apologise for the delay in starting? Thank you very much for your patience. It is just with the Parliamentary programme and trying to keep everything together. We are very grateful to you for participating in this inquiry. As you are aware, we are taking evidence on the Hazardous Waste National Policy Statement inquiry. Just for the record, would you like to give us your name and position?

Jan Gronow: Thank you. I am Jan Gronow and I am ViceChair of CIWEM’s Waste Management Technical Panel. I am a visiting chair in waste policy at Imperial College, London and an independent consultant. I am not actually a hazardous waste specialist; I am afraid our hazardous waste specialist cannot be with us today, but I did represent the team in the UK that negotiated the hazardous waste directive in Brussels, and I was a member of the technical adaptation committee that produced the European Waste Catalogue, which was the first waste list.

Q60 Chair : Excellent. We are very grateful to you for being with us today and contributing. Could I ask whether you agree with the National Policy Statement’s assessment of the need for large-scale hazardous waste facilities, including the need for hazardous waste landfill?

Jan Gronow: Yes, in general we do. I am not sure that the assessment could not have been done rather better, but I do agree with the outcome.

Q61 Chair : Do you believe that, under the new provisions of the NPS, there might be a flood of applications?

Jan Gronow: I really have no idea, I am afraid.

Q62 Chair : Do you believe there might be any crossborder implications of the way that it applies in England, Scotland and Wales?

Jan Gronow: No, I would not have thought there would be serious problems.

Q63 Chair : As an organisation, do you believe there has been sufficient consultation of proposals from Brussels and that you were given both sufficient notification and knowledge of what is coming in, and a sufficient lead time? Do you feel that there was sufficient and adequate consultation?

Jan Gronow: I think so. Particularly with the implementation of the Waste Framework Directive, I think DEFRA were absolutely fantastic just recently. They really were interested in people’s views and they ran lots of meetings for us. One of the problems is that if you look at the terms of reference of the TAC, Technical Adaptation Committee, there is something in there about keeping what we were doing private, which seems very silly in this day and age. I do not think they have sorted it out completely yet. It seems essential that we come home and talk to stakeholders about it, but there is this little niggle at the back about how you do that.

Q64 Chair : Do you have any views yourself what would be the best forum for this dialogue?

Jan Gronow: We all have the opportunity to see what is coming up and it is not as though it does not take very long. I helped to negotiate the Landfill Directive and that took 12 years, so that is plenty of time for people to keep up with things, isn’t it?

Chair : That is an interesting example; thank you very much.

Q65 Mrs Glindon: Good afternoon. Should applications to a new planning permission for existing facilities that are over the NSIP threshold be dealt with by the IPC or under the local planning regime?

Jan Gronow: This issue is debatable, but I think generally we are of the view that it should come under the new regime.

Mrs Glindon: Thank you. Did you say under the IPC or under the local planning?

Jan Gronow: Under this new regime, the IPC.

Q66 Mrs Glindon: Thank you. In your evidence, you mentioned that the NPS is unclear in its explanation of how the amount of hazardous waste dealt with at the facility is to be defined, citing the example of ship-recycling facilities. Do you have a view on what the definition should be?

Jan Gronow: It is probably not necessary for all types of facility. I think ship recycling would probably suffer from this the worst, but there are limits set in the COMAH Regulations and we wondered whether they could perhaps be something like that. It might be worth looking at the COMAH legislation and seeing whether for those hazardous substances that are likely to occur, which I think would probably be a relatively short list, one would be able to set some limits in the same way.

Q67 George Eustice: One of the things that has come out in earlier evidence is some of the duplication between planning and environmental permitting. Are there arguments for and against merging that or integrating those procedures in some way, because they tend to be considering similar factors?

Jan Gronow: First of all can I say there is a mistake in our evidence, which is completely my fault? I have quoted PPS 26 and it should have been 23, so it would be useful if we could correct that. We think there are a lot of pros for putting them together because you are asking an awful lot of the IPC in knowledge to go very far with an application without a great deal of help, I suggest, from other agencies. I know it is difficult because we are dealing with two different pieces of legislation, but it does seem to me that, quite honestly, other agencies, particularly the Environment Agency, are going to have to do a lot of what they would need to do for permitting right up front with the IPC to provide sufficient advice to the IPC. I think this is true for other agencies as well. I do not think you can expect a body to have that range of knowledge on the variety of environmental issues, particularly, without a lot of advice from the various agencies. Therefore, why not do it all together?

Q68 George Eustice: Either do it all together, or are you suggesting that one should come before the other-the environmental permitting comes first and then the IPC consider the planning aspect after?

Jan Gronow: I can see why it needs to be two separate things, but we managed to implement the Landfill Directive through the IPC legislation, which was not easy, but we did it. It is difficult now because, when I was in the Department for the Environment, it was one Department and you could have knowledgeable conversations with those responsible for waste planning and it was easier. I just think it is a waste of resources; we just muddle along.

Q69 George Eustice: So on balance you think there is a case for just integrating the two?

Jan Gronow: Yes, but you have to find the time to do that properly, of course.

Q70 George Eustice: One of the things that has come back from the IPC in their evidence is that some of the terminology used in the NPS-and I know we have come across this in other NPSs as well-is perhaps a little bit too vague, with terms like "liaise", "consult" and "seek advice", and that perhaps more tightly defined terminology would lead to more clarity about where responsibility lies. Is that something you would agree with?

Jan Gronow: Absolutely, and there are a couple of instances when it says the IPC "shall take notice of this guidance and other things", and I do not think they would find it terribly helpful. If you are going to set out what they should take note of, then let’s put it all in one document.

Q71 George Eustice: In part five of the NPS, it sets out all of the relevant generic impacts of hazardous waste. Are you satisfied that it covers all the areas necessary and defines them clearly enough?

Jan Gronow: Yes, we are satisfied. I am not sure that it does it as well as it might have done, but yes, I think it covers all the necessary issues.

Q72 Mrs Glindon: I just want to ask you about perception. Is there a danger that public perceptions of health risks could hinder the development of new facilities that would actually improve overall environmental outcomes for hazardous waste?

Jan Gronow: I am not sure I quite understand, but the issue of public perception is an extremely difficult one.

Mrs Glindon: Does it have any influence on it?

Jan Gronow: There is very little overlap between fact and public perception, and it is an enormous problem. It is very rarely that planning permission is given for a waste management facility of any sort without there being an appeal. You only have to look on the websites with the strange things that are being said about the various incinerators proposed in Wales to see how the public feel and perceive the risks. The wording in the document is quite dangerous in dealing with public perception. That really needs thinking about.

Q73 Mrs Glindon: It is a big issue.

Jan Gronow: It is a big issue, and I think it opens the door for some large problems.

Q74 Chair : Do you think it is partly that some of these sites are not necessarily appropriate and that they are being put in more rural rather than more urban, industrial areas or is just on principle?

Jan Gronow: I do not know, but I do not think it is anything to do with actual reality or anything like location. I think it is just general perception that we do not want to live near these things.

Q75 Chair : Who do you think should be trying to improve the public’s knowledge or perception?

Jan Gronow: That is extremely difficult. The waste management industry and the Environment Agency has done quite a bit of work on how you approach communities about this sort of thing. It is not a science; it is an art, really, of whom you approach: you approach small groups; you send academics and not consultants because people think that academics do it for love and consultants do it for money; and you send women and not men to talk to them. You talk to small groups-the Women’s Institute-and not have huge public meetings. That smells slightly of manipulation, although it is what you have to do if you want to bring people onside, so I think it is extremely difficult.

Q76 Mrs Glindon: Is there anything that you think Government could do in education in this area with the public?

Jan Gronow: It is difficult. Since foot and mouth, BSE and these things, Government science has taken a bit of a knock in credibility, and people do not understand the nature of risk. They want a yes/no answer, so I still think it is very difficult. Both sides need to work on it-Government, the agency and operators-and need to use best available techniques, but it is an uphill struggle.

Q77 Chair : The incinerator you mentioned in Wales, is that a hazardous waste incinerator or a general energy from waste incinerator?

Jan Gronow: No, I think it is a municipal waste incinerator. There is more than one; there are several of them being considered.

Q78 Chair : Do you think we can learn from other countries? I have family in Denmark-and it might again just be municipal waste-where there is a substantial community benefit through distance warming. With new build, you can place an incinerator perhaps with some new housing, so they get reduced costs of hot water and heating.

Jan Gronow: Yes, I certainly think so. There was a rumour around some time ago that Treasury was looking at the sorts of benefits that might be provided. I do not know what happened to that or whether it was just a rumour, but certainly in other countries they do this better and they do it differently. France does it completely differently and they do not seem to have too much trouble siting nuclear power stations in France, do they? One of the issues we never think about though is population density. It is much easier to retrofit stuff in Scandinavian countries than it is here or in the Netherlands, where we have high population density. That makes a difference. If you talk to waste management operators at the moment, they say retrofitting these facilities is just not financially viable for them at the moment.

Q79 Chair : Do you have a ballpark figure of what an individual facility would cost?

Jan Gronow: I really do not know.

Q80 Chair : Do you believe that the National Policy Statement clearly sets out its support for the development of new and emerging technologies?

Jan Gronow: Yes, I think it does.

Q81 Chair : And is it flexible enough to accommodate new treatment methodologies that may come forward in its present form?

Jan Gronow: Yes, we think so. I would go back to this: do we really expect the IPC to have sufficient expertise to be able to determine whether a suggestion is viable? That is our only concern.

Q82 Chair : I understand that in line with the European Directive on strategic and environmental assessment, Defra has undertaken an appraisal of sustainability of the hazardous waste NPS. The Environment Agency has questioned the number of minor positive findings contained in this appraisal of sustainability. Do you agree with that analysis?

Jan Gronow: Yes, I think so. Reading through it, I found the appraisal a little bit short on water resources and groundwater protection, but I think it would be worth revisiting that table towards the end of the connections between the key policy and the particular issues.

Q83 Chair : Do you think that the appraisal process has been sufficiently robust?

Jan Gronow: Yes, I think so. It could have been better, but I think it is good enough.

Q84 Chair : Just returning to your concern about public perception, do you think we are going to face a crisis in the country, in the sense that there is such a public outcry every time a planning application comes through that we will not meet the requirements of hazardous waste disposal, even under the NPS?

Jan Gronow: That’s difficult, isn’t it? I do not think so. Perhaps if it is taken in the form it is at the moment and nothing is done about having to do an assessment of people’s fears then that does open the door for a lot of problems, and you cannot see the cutoff to it then. It just seems wide open. If that is not changed then there is a possibility that setting up something like this has no benefit.

Q85 Chair : Earlier you questioned the expertise that the IPC has. Once the IPC is abolished, will your concern disappear?

Jan Gronow: Not exactly. I have a tremendous regard for the planning inspectorate and the care they take over the work they do. Let’s leave it at that. I just do not think any one person or any small group of people have the breadth of expertise to do this work without the advice of the experts-who are going to provide advice; it is just whether they provide it soon enough and whether they have the time to provide sufficient advice at the planning stage, and do not leave it until it comes to their permits, etc.

Q86 Chair : You did say that the appraisal of sustainability process could have been better. Could I press you? Could you be more specific on how you believe it could be better?

Jan Gronow: One of the arguments about moving to this new process was that at the moment the Secretary of State would have to make the decision, which I think was rather a silly thing to put in seeing that in a little while the Secretary of State will be making the decision. I would have left that out as a reason, I think. I do find it difficult to say exactly what was wrong, but I just did not put it down and think, "Yes, that is a really good job."

Q87 Chair : Thank you. I just noticed in your written evidence you confirm that, while from time to time incidents do occur, the safety record of the industry is pretty good, isn’t it?

Jan Gronow: Yes, it is.

Q88 Chair : Is there anything else you would like to add?

Jan Gronow: One of the things that concerned us most was the issue of flooding and the issue of not being able to provide guidance on location. This is not in a specific sense, but the Environment Agency provides flood risk zones and the Environment Agency provides groundwater protection zones. I know that they are only general and advisory, but why could they not be used to move the issue along a little way? I really see no reason for not doing that. They would still have to be investigated in great detail, but I think it would help.

Q89 Chair : That is helpful. Just one last question if I may: in your written evidence you talk about grounds for refusal of consent and that "the IPC should not refuse consent on the basis of regulated impacts unless it has good reason to believe that any relevant, necessary operational pollution control permits or licences, or other consents will not subsequently be granted." You say that "this may lead to a potentially confusing and even harmful situation". Is there anything alternative you would propose?

Jan Gronow: I used to work for the Environment Agency, and it is a long time ago-I retired six years ago-but at the time the Environment Agency did not have the resources to respond in any great detail to planning applications. I am not sure it is a resource thing because what it seems needs to happen now is the resource that goes into permitting comes right up front at the planning stage and needs to be done at the planning stage. What worried us was if that continued and is still rather a generic response to planning from the Environment Agency and other agencies, who do not have the resources to do this thing until it comes to them properly, then you have a potentially difficult situation.

Q90 Chair : Could I just be clear? Is it the case at the present time that planning permission is in two stages?

Jan Gronow: Yes.

Chair : You have the outline planning permission and it is only at the subsequent stage. I tend to agree with you because there was a planning application for I think a general energy from waste proposal in my previous constituency, and the Environment Agency said we should have a bigger chimney. That was not what the residents wanted to hear. So are you saying you think they need more resources or that the resources they have should be used at the first stage, when the outline planning permission is?

Jan Gronow: Again, I might not be up to date with this, but at the time the Environment Agency was not paid to respond to planning applications. Therefore, the responses were generic; the money came with the permitting. This may have changed-I do not know-but I just think it is slightly dangerous.

Q91 George Eustice: Just going back a step on what you said about flood risk, could you just explain what it is you would like to see included? It is obviously listed as one of the generic impacts in the NPS, but are you saying there is already data and much clearer guidance available somewhere else that should be imported into the document?

Jan Gronow: No. Everybody will use the Environment Agency’s stuff on flooding. It is just that we feel that if you look at PPG 25, which is all about how you deal with flooding in the planning aspect, they have procedures for working through the various flood risk zones. Actually, I would have thought there is a case for saying that you do not put this large infrastructure in anything else but flood zone 1-this is a very low risk of flooding-simply because it is not necessarily vulnerable but is actually a hazard to the local environment and people if it is flooded. You will have hazardous waste sloshing around inside houses and goodness knows what. It seems to me that it is sufficiently important, particularly when we are ringfencing this larger group of facilities, that you would say, "No way" anywhere else.

Q92 George Eustice: It does depend slightly on the type of waste, I suppose, doesn’t it? Is that why they kept it generic, do you think?

Jan Gronow: Perhaps. I just think they have taken PPG 25 and said, "We will do it that way. We have done it that way before." I may be wrong.

Q93 Chair : Do you believe the sequential test and exception test are sufficient?

Jan Gronow: Personally, I would not use either. I would just say "No way" in this case. If you look at the fire in Gloucestershire in 2000 that subsequently became flooded, you realise what a difficult problem you can have.

Chair : We are very grateful. Can we thank you very much indeed for contributing? We apologise again for the delay, but it has been a pleasure to have you before the Committee this afternoon. Thank you very much indeed.

Examination of Witnesses

Witnesses:  Ed Mitchell, Director of Environment and Business, Andrew Coleman, Senior Environment and Business Advisor (Planning), and Gill Ross-Jones, Senior Environment and Business Advisor (Waste and Illegals), the Environment Agency, gave evidence.

Q94 Chair : Can I thank you very much for joining us and participating in our inquiry on the National Policy Statement for Hazardous Waste? For the record, Mr Mitchell, would you like to introduce yourself and the positions of your colleagues?

Ed Mitchell: Thank you very much. My name is Ed Mitchell and I am Director of Environment and Business at the Environment Agency, and I have brought with me Gill RossJones and Andrew Coleman who are both senior advisors-Gill on the waste-site permitting side and Andrew on the planning side.

Q95 Chair : Excellent. Thank you very much, you are very welcome. Your initial analysis of data on hazardous waste arising in 2009-10 suggests that the National Policy Statement’s assessment of the need for infrastructure facilities should be changed. Is that correct?

Ed Mitchell: No, the NPS was based on the latest data to hand when it was drafted, which is 2008 data. The 2009 and 2010 data does show a reduction in hazardous waste arisings, but there are two comments on that. One is that the amount of hazardous waste produced is quite lumpy year to year depending on big infrastructure projects, because a lot of it comes from contaminated land. For instance, something like the Olympics development generated a large amount of hazardous waste that showed up in the 2008 year. The other thing is that the types of hazardous waste that are covered by the statement of need in the National Policy Statement showed an increase in 2009 and 2010. Overall, whilst the figures do go up and down year on year depending on economic situation and other things, I do not think it undermines the case for the need for infrastructure.

Q96 Chair : Is there a concern that some applications are pending, being held back waiting for the NPS, and there might be a flood of applications once the NPS comes into effect?

Ed Mitchell: I might ask my colleagues whether we know of any that are pending in that way. I would observe that the number of hazardous waste facilities of the sort of size that are caught by the threshold in the Planning Act is small currently, so I am not really expecting a large number to come through. I do not know if my colleagues have any specific information on that.

Andrew Coleman: The IPC’s website indicates that there are no applications in the preapplication or the application stages with them.

Q97 Chair : So you would not be aware if developers-?

Ed Mitchell: If somebody has come to us to start preapplication discussions, we would be aware. I am not aware that anybody has. To give you an example, I think there are currently seven hazardous waste landfills at the threshold of 100,000 tonnes a year. I think that is right?

Gill Ross-Jones: It is about 13.

Ed Mitchell: Sorry, but only seven actually met that threshold in the last year?

Gill Ross-Jones: Indeed, yes.

Ed Mitchell: So the likelihood of there being more than one or two coming up in the next five years is quite low.

Q98 Chair : Are you aware of any crossborder concerns of the way that hazardous waste will be treated postNational Policy Statement in England as opposed to Scotland and Wales?

Ed Mitchell: I am not aware of any. The NPS is quite clear on the policy framework around crossborder issues and the socalled proximity principle and the need for strategic facilities. If the question is about whether you think because of our process as compared with the devolved administrations we might somehow draw in hazardous waste from other places, I think it is unlikely that that would be significant.

Q99 George Eustice: You mentioned hazardous waste landfills. I think Northamptonshire County Council have been critical of that being included, on the basis that they did not think there was enough evidence to suggest that you needed any. You yourself have just said you do not expect any to be coming. As I see it, there are only about eight. How satisfied are you that there is a need to have that actually referred to in this particular NPS?

Ed Mitchell: The NPS is very clear on the waste hierarchy and the fact that the first place you start is in not producing hazardous waste in the first place. The last place you go to dispose of hazardous waste is landfill. The need for facilities higher up the hierarchy is, I think, greater than for landfill. However, a number of existing landfill sites have time-limited planning permission, and they will need to renew that time limit in their planning. I imagine there is a possibility some would decide not to do that, which would mean we would need replacement facilities. I think it is wise the NPS covers hazardous waste landfill, but as I say, I think the likelihood of significant numbers coming forward is low. I do not know if colleagues want to add anything on that.

Gill Ross-Jones: I would agree with that.

Andrew Coleman: I would agree.

Q100 Mrs Glindon: How likely is it that there is a need for an NSIP facility for the recycling of lithium batteries in the near future, based on the popularity of hybrid and batterypowered vehicles?

Ed Mitchell: I think I will pass on to Gill on that one. At the minute, lithium batteries are, as I understand it, not classified as hazardous waste, so outside the scope of this. However, there may be changes in those classifications.

Gill Ross-Jones: That is right. At the moment, they are not classified as hazardous waste and so they would not fall under this particular NPS. It could be, with the changes that are happening with the European Waste List and the classification, in the future they may become hazardous, but obviously we cannot predict exactly what will happen in the future.

Ed Mitchell: One of the things I would just add is that, in commenting on some of the previous NPSs, we have made the comment that suggesting an appropriate review time scale would be a good thing. I think some of the other ones were more openended. This one is very clear that it considers about five years to be the right time. That reflects the fact that technologies, demand and production of hazardous waste does vary, so it gives the opportunity for something like that to be incorporated at a future revision.

Q101 Mrs Glindon: So if there is an increased volume of these batteries over the next few years-perhaps in a way of having to have it classified-it is not something that would need to be looked at immediately but just monitored until such a time?

Ed Mitchell: Yes, at the moment, because they would not be classified as hazardous waste. I think there is a need for recycling facilities, but they would not be covered by the NPS because they are not classified as hazardous waste at the minute. If that classification changes, then I think we would need to revisit the scale of the need and how it fits within the NPS.

Q102 Mrs Glindon: Should applications for renewal of planning permission for facilities over the NSIP threshold be dealt with by the IPC or the local planning authority?

Ed Mitchell: The Government’s policy intent on this is fairly clear, which is that they do not think that extensions of the time limit, for instance, under the planning system should be caught by this. We are part of Government, so I share that view in terms of that policy steer.

Andrew Coleman: I do not have anything to add to that. It is quite clear from the thresholds in the Planning Act, not just for hazardous waste but for the other types of nationally significant infrastructure project, that their aims are construction of new facilities or physical extensions to existing facilities, not to the renewal of permissions.

Ed Mitchell: The only thing that I would add is there is a possibility of a bit of a legal debate about whether a renewal of a time period counts as a new application or not. One thing I think we might talk to colleagues in Government about is just being very clear about the policy intent, so that this is not resolved through case law but is clear on the face of the NPS.

Q103 Mrs Glindon: The removal of any ambiguity so it is very clear. Thank you. Is the NPS clear about the circumstances in which a facility dealing with both hazardous and nonhazardous waste meets the threshold for an NSIP? Should it be the total volume of waste treated that determines whether the facility meets the threshold or only that proportion of waste that is hazardous?

Ed Mitchell: I am going to look to my expert advisors on that one.

Gill Ross-Jones: Are you asking about a facility that takes in hazardous waste and nonhazardous waste separately, or are you talking about a quantity of hazardous waste totally that might have a slight nonhazardous facet to it?

Q104 Mrs Glindon: It is looking at one taking in both, I would imagine, from the information that we are trying to find out about this.

Gill Ross-Jones: I think the NPS is quite clear it is concerned with the hazardous waste taken into the facility.

Q105 Chair : You think it is quite clear the way it is drafted?

Gill Ross-Jones: Yes.

Q106 Mrs Glindon: For example, how would that work in a ship-recycling facility? How would it apply?

Gill Ross-Jones: It is my understanding that the ship is classified as hazardous waste, so it is quite clear about the whole ship being hazardous waste.

Q107 Chair : That is helpful. Mr Mitchell, could I just take you back to something you said about whether a detailed assessment is being made regarding hazardous waste landfill and that after a period of time they come up for future planning permission? Are you aware of whether any detailed assessment has been made of whether those hazardous waste landfill sites whose planning permission will lapse in the next five years will be unlikely to seek or to be granted a renewal of planning position? Do you have any such knowledge?

Ed Mitchell: No, I have no specific information on that, but I guess that will be a commercial decision for the operator and owner of the landfill. Clearly, it is a possibility that one or more of them will choose not to.

Q108 Chair : I think we will come back to this later, but could I just ask what the implications are for the NPS of the national policy planning framework?

Ed Mitchell: I am not sure there are particularly significant implications. They are sort of separate.

Andrew Coleman: Yes, the draft national planning policy framework does not contain policies about waste in it.

Q109 Chair : But it does in the sense that we just heard from the previous witness as regards to building in a flood plain. If I have understood it correctly, my understanding is PPS 25 will go. So is this something we should be looking at as part of this piece of work? I am representing an area that is very prone to flooding and a little bit of coast, and colleagues will be in similar positions. This is our opportunity to look at this.

Ed Mitchell: We have been involved in advising the Department for Communities and Local Government on their draft national planning policy framework and are satisfied the parts of the existing planning policy documentation around flooding are adequately represented in the new slimmed down version. The sequential test that was mentioned earlier, for instance, lives on in the new planning framework and is in here. There are parallels between the two processes, but nothing that we are particularly concerned about in that respect.

Q110 Chair : This is a personal view: would it not be better not to build these facilities on land prone to significant flood risk?

Ed Mitchell: As I remember, it is very clear that you should not build these facilities in the active parts of the flood plain because it takes up space that otherwise is required for water. We then have this reasonably wellestablished process of the sequential test, which is by preference you should build facilities outside of the flood plain completely. If that is not possible then you look in flood zone 1, which is the lowest flood risk, and so on until you get to flood zone 3. If you get to flood zone 3, then you have to apply what is called the exceptions test, which is a further hurdle you have to overcome to make the case for building such a facility in the flood plain. The obvious exception is ship recycling, and I think that is dealt with specifically in the NPS, in that obviously a number of those will be in areas liable to flood from coast.

I do disagree with the previous witness, though, in terms of that test. I think that test has shown itself to be pretty good over time. We track the number of planning permissions granted against our advice on floods basis, and it is at an incredibly low level. I think on 97% of all planning applications we express an opinion on from the flood point of view, that opinion is taken into account. It is very rare it is not, and I think it is appropriate the local planning authority makes judgments about flood risks versus other things like economic benefits. We are comfortable the sequential test works and it has been shown to do so.

Andrew Coleman: The only thing I would add is the policy in the draft National Policy Statement also includes references to the need for hazardous waste facilities to be safe and, if need be, remain operational. So it does contain very similar safeguards to PPS 25 and what the draft National Planning Policy Framework says as well.

Q111 Chair : I perhaps ought to know this, but could you just talk me through flood zones 1, 2 and 3 in terms of one in 30, one in 100 or one in 10,000-where we are?

Andrew Coleman: Flood zone 1 is land that has up to a one in 1,000 chance of flooding in any one year from tidal or fluvial sources. Flood zone 2 is from the flood zone 1 threshold up to one in 200 for tidal and one in 100 for fluvial. Flood zone 3 is a greater than one in 200 chance for tidal and one in 100 chance for fluvial. Within flood zone 3, we also have a classification of the functional flood plain, which is land needed for the storage or flow of water during regular flood events.

Chair : That is very helpful. Thank you.

Q112 George Eustice: In your written evidence, you made reference to new technologies, and I think you said that the NPS ought to be made clearer to emphasise support for new technologies. Could you expand a bit on what you meant by that?

Ed Mitchell: As I mentioned, I think the whole foundation of European policy and policy in this country around hazardous waste is around the waste hierarchy. Traditionally, an awful lot of hazardous waste, as with all sorts of waste, has ended up in landfill, rather than looking to recycle it, recover it or even not produce it in the first place. Therefore, we are at a fairly early point in the innovation curve around the technologies that will be needed to enable the waste to move up that hierarchy. I think it is important there is enough flexibility in the system here that, as new technologies come along and are economically viable, etc., the NPS ought to be able to deal with that.

Q113 George Eustice: Just to press you on that because, obviously, the waste hierarchy is a central element and that is there. I presume the Government is arguing, given that it is early and you do not know what technologies might emerge in five or 10 years, to be prescriptive about saying we should pick a winner and say, "That’s the technology," would diminish the NPS rather than enhance it. Is that right?

Ed Mitchell: Yes, the NPS is quite clear on that point about not picking winners. There is text in there about it not being a good role of Government to do that-that it is the industry that has the knowledge, the expertise and the commercial awareness, so they are better placed to develop new technologies. As I say, the process then needs to be able to accommodate those new technologies as they emerge.

Q114 George Eustice: Just coming back to the NPS and the tangible document, what kind of wording would you like to have seen added that, to use your words, could emphasise the support for new technologies that goes over and above the hierarchy?

Ed Mitchell: I will check whether Gill has anything to add on this, but I think it would just be to reflect this thing about where we are in the innovation cycle and, therefore, that innovation is both needed and likely.

Gill Ross-Jones: Yes, I think the words are all there, but they need bringing forward and it needs to be expressed in a way that says, as Ed has said, we are at the start of this journey and new technologies are bound to come forward, as well as perhaps even new waste types. You never know what new waste is going to turn up if a new product is developed, and it would benefit by having some of the words expressed.

Q115 George Eustice: Where in the document would you see that fitting? I suppose what I am struggling with is how you can emphasise support for new technologies when they are still not there.

Gill Ross-Jones: Yes, when you do not know what they are, it is difficult to express them. I think the NPS has done a good job of not falling into that trap. Perhaps in the first section it would be useful to say that there will be new technologies coming online.

Q116 George Eustice: I want to push you a bit about the point we went through with the previous witness about some of the duplication between environmental permitting and planning. What is your take on that? Do you see a case for integrating them or merging them in some way?

Ed Mitchell: My view is that there actually is not much duplication. I absolutely agree there is complexity along the boundary. There is a boundary between environmental permitting and planning, and that boundary is complex but, for instance, to give you a relatively recent example, we had an appeal against the fact that we had not taken transport into account in a permitting decision around a waste facility. That went to the courts. The courts then clarified that was a matter for planning and not for permitting. The boundary, I believe, is clear if complex.

I am not in favour of merging the two systems. As your previous witness said, expertise sits in different places. I am not sure that necessarily means the most effective way of getting at it is to bring it together. This NPS has reflected comments we made on previous ones about the value of early discussion about permitting, because the IPC will not be able to issue a development consent order if they do not think we can permit it. Equally, we cannot issue a permit if we do not think it can be complied with. There is also this thing called the planning bar, so we cannot issue a permit unless planning permission is in place.

There is a complexity to this, but I think on the whole it is up to developers to decide based on commercial risk because in some places the commercial risk will be around the planning permission; in some places, in some circumstances, it will be around the permit. So why spend money on applying for a permit if you are not certain you are going to get planning? You might choose to get planning first or vice versa. When it comes to big infrastructure, the NPS is quite right it is advantageous to parallel track these things so that you are managing the risk of getting one set of permissions and not the other. I do not accept that is a case for completely merging the two systems, because at the smaller end of the spectrum they work well separately.

Q117 George Eustice: Coming back to your point about the courts, the courts will interpret whatever laws are thrown their way. The reason they have had to clarify that is that is how the law stands and they have been forced to. Part of your response to that seemed to suggest there was logic in combining, in that they cannot grant planning unless they think you are going to get the environmental permitting, and you cannot grant a permit unless you think they have a good chance of getting planning. It does seem to be part of the same loop.

Ed Mitchell: There is a strong interrelation and the two systems touch at many points, but they are looking at separate things and that is the thing I think needs to be clear. We permit or otherwise or set conditions for a specific technology at a specific location. The whole point of the planning system is whether it is appropriate to put that in that place. If you take the waste hierarchy again, there is not much you can do to drive waste up the waste hierarchy through permitting, whereas there is lots you can do through planning because you can say, "No, we do not need any more landfill; we need a recycling facility," or "There are already 15 recycling facilities for that waste in this area; we do not need another one." When it comes to permitting we will go, "Does that specific technology in that specific location lead to environmental risk that can be adequately managed for public safety and the environment?" so they do different things.

Q118 Chair : May I just interject before we leave that issue? The previous witness questioned whether there were sufficient resources. Presumably, you apply a fee for the issue of a permit.

Ed Mitchell: We do; that is right.

Chair : So you are resourced to intervene at the time of the permit, but you have to use existing resources for planning.

Ed Mitchell: Yes, we use grantinaid from Government to fund our input to the planning system. We allocate money to that-I do not want to give the impression that we have to scrabble around for a bit of money to do an individual planning application. We comment on 40,000 or 50,000 planning applications a year. We prioritise those very rigorously, so that we put more effort into commenting on those that we believe have a bigger environmental risk, but we allocate money and resources to that process. We do not get a specific pot of money attached to a specific planning application-that is true-but I think we are able to allocate enough of our grantinaid settlement from Government to planning to enable us to intervene in the planning system where we feel it is appropriate.

Q119 Chair : And just in tackling this issue of perception that might arise more under the NPS, you do not think there is some advantage in running these two applications together? I have just seen applications where I have had constituents complain, "I think it would have been much simpler if the Environment Agency had been involved at the planning stage rather than at the permitting stage."

Ed Mitchell: Yes, we are a statutory consultee for many planning applications, and certainly any that would happen under this system, so we are involved in the planning stage. I absolutely agree that, especially for contentious developments, there are great advantages in running the two systems side by side. Because they are different skills looking at different aspects, I am not sure of the benefit of joining them together. I completely agree because, for instance, when an incinerator is going through the planning and permitting system, people will feel that they have not got satisfaction through planning and will have another go in permitting, only to find that the issue they wanted dealt with is a planning matter not a permitting matter, and so on. I agree it can be complicated and I think they should be paralleltracked.

Andrew Coleman: Can I add something?

Ed Mitchell: Yes, please do.

Andrew Coleman: I would just like to add that, with the new system operated by the IPC or its successor body, the big difference between the normal Town and Country Planning Act is the requirement-and it is a requirement-for lots of preapplication consultation. So it is at preapplication stage that some of the issues around the boundaries between planning and permitting should be explored. Developers will be forced to do the preapplication consultation, which is not necessarily the case under the Town and Country Planning Act.

Ed Mitchell: And that is positive, I think.

Q120 George Eustice: One of the issues that came from the ESA was that perhaps there is a need for better training of staff, both at the IPC and the Environment Agency, so they have a clear understanding of where the boundaries lay and where they overlapped. Is that something you would agree with? Just from the answers we have had, it is clearly a grey area.

Ed Mitchell: Absolutely, it is a complex area. Both us and the IPC, and its successor body, can always get better at being clear with people about where those boundaries lie. We are thinking about producing some guidance to different sectors of industry on that very area, which I think would probably be helpful.

Q121 George Eustice: Finally, on this point, you talk about running the two in parallel. What about the suggestion of doing one before the other, so making sure you get the environmental permits first, so it has been signed off as needed and has all of those in place before it goes to the IPC? There is this problem that the IPC do not always have the expertise they need to do it.

Ed Mitchell: When I say parallel, the planning and permitting system touch at different points as they go through the process. The optimum way of phasing them is such that, if we are confident we are going to be able to permit a facility, we can let the IPC know that; they can then issue their development consent order, which means we can then issue the permit. There is a link that goes back and forth between the systems. Because of the time it takes to determine an application, that will often mean we need to start a little bit earlier in our formal processes than the IPC does, but as Andrew says, preapplication discussions can happen very effectively absolutely in parallel.

Q122 George Eustice: My final point just comes back to this idea about the terminology in the NPS. The IPC have said comments like "liaise", "consult", "seek advice" and "co-operate" are quite vague, woolly comments. Do you think there is a need for tighter definition about some of those things-to what extent do they need to liaise and co-operate?

Ed Mitchell: I noted what the previous witness said and the example she gave. On the whole, these are terms that are pretty well understood within the professions, whether it is the planning profession or in our permitting work, so I do not have any particular comments to offer on that.

Andrew Coleman: The Planning Act and associated legislation sets out the minimum legal requirements for an applicant, and as long as those are reflected correctly in the NPS, we will be comfortable with that. I did not have the same concerns as the previous witness though.

Q123 Chair : In your written evidence you say you are working closely with Defra on the NPS and the appraisal of sustainability, but it is not clear how that has contributed to the development of the AoS. You have questioned a number of minor positive impacts contained in the appraisal of sustainability. What role did the Environment Agency play in the appraisal process and do you believe that the process has been sufficiently robust?

Ed Mitchell: In the development of all the NPSs-not just this one-we have worked pretty closely with our sponsoring Department; it is an ongoing relationship and discussion. We have talked to them several times over the course of its development. I would not want my comments about the minor positives to be taken out of context. The purpose of the AoS is to, at a high level, decide whether this bit of policy is going to contribute to sustainable development or not, or be more positive in terms of sustainable development than the existing policy framework. Overall, it absolutely meets that requirement. The specific point that we will continue to discuss with Defra is that, because it is a comparison between current policy and what the NPS would do, if you take flood risk, and we have already discussed that much of current policy is simply reflected in NPS, then it is not clear to me why that is positive rather than just neutral, if you see what I mean. The NPS is very clear, though, that many of those judgments are based on professional judgment rather than evidence because of the paucity of evidence, so you are into the realms of whatever that professional judgment is and I understand that Defra used a consultant to develop that. As I say, we will have ongoing conversations with Defra about it, but they are on the margins. I would not want to give the wrong impression on that.

Q124 Chair : Thank you. Could I just ask on the resource issue again? Are you convinced there is sufficient incentive for the industry to develop the new infrastructure set out in the NPS?

Ed Mitchell: That is a more difficult question for us to answer. It is a very good question and it would be interesting to hear what the industry has to say about it.

Q125 Chair : They have expressed a concern that operators may be discouraged from developing if they are undercut by other UK operators and other devolved areas that may be using cheaper, suboptimum methods. This is what we have heard.

Ed Mitchell: Waste legislation is a complex area for us to regulate, and part of the reason for that is it is as much about creating a level playing field for legitimate operators as it is about environmental protection. Waste legislation is a kind of legal construct, so that issue about a level playing field is prevalent throughout waste and the way we regulate it. I do not see anything in the NPS, but I will check with colleagues, that disturbs that balance either way, to be honest.

Andrew Coleman: No.

Q126 Chair : Are you confident that the agency itself has sufficient resources to rigorously enforce the forthcoming regulations on the treatment of hazardous waste, both the current and the future regulations? Are you confident you have the resources?

Ed Mitchell: Yes. The way we operate is that we charge for the services that we provide.

Q127 Chair : On permitting, but not on planning.

Ed Mitchell: Yes, but there is a charge that an applicant makes when they apply for a permit and then there is an annual subsistence fee. The annual subsistence fee they pay us funds our compliance and regulatory work. We adjust that on an annual basis, so if for instance a new regulatory regime comes in we have a way of raising money to pay for that resource. We can adjust it on an ongoing basis, so I am comfortable that we will be able to deal with what comes up.

Q128 Chair : Just finally, when the IPC is abolished, the decisions on hazardous waste nationally significant infrastructure projects will be taken by Ministers in a different Department-Communities and Local Government. Are you concerned that policy decisions made by Defra will be implemented by Ministers in another Department? Does that pose any concerns at all?

Ed Mitchell: No, it is a return to the previous system in that respect, and I think Defra will be able to make its policy views known to the relevant Secretary of State in making their decisions. I do not have a particular concern about that.

Q129 Chair : Thank you. There is nothing else you would like to add?

Ed Mitchell: Not from me, no.

Chair : We thank you very much indeed. We apologise for the delay, but we are very much grateful to you for participating. Thank you very much indeed.

Prepared 21st September 2011