Tuesday, 26 June 2012

North London Waste Plan Examination: An Inspector's Cause

This is the response by the Inspector to events at the NLWP Examination in Public (EiP) two weeks ago. The boroughs now have about a week to respond, when they have worked out what it all means.

Overall at the inquiry, the inspector has to consider:
  • 'Soundness' of the plan, and, since the introduction of the Localism Act, 
  • a 'Duty to Co-operate' with other local authorities and other public bodies, when drawing up the plan. 
However, only the latter has been considered so far at the EiP, and below.

The Duty to co-operate [1]

1.  The South East Waste Planning Advisory Group (SEWPAG) and the East of England Waste Technical Advisory Body (EoEWTAB), comprising the waste planning authorities of their respective areas, submitted representations about the North London Waste Plan (NLWP) and also a joint statement to be considered in the Examination at the hearing session on Main Matter 1: Legal Issues.  In the submissions, they raised the “duty to co-operate” and claimed that the requirement had not been met by the NLWP.

2. The North London Councils (the Councils) submitted a paper; “CDNLWP41 Duty to cooperate – Borough’s response to Inspector” which is an answer to my request for a briefing note on how the requirements to cooperate had been met.  The Councils also submitted a “Legal Response to SEWPAG and EoEWTAB from NLWP on Main Matter 1”.  I have also seen a recent exchange of emails between the Regional Advisory Groups and the Councils forwarded to me by the Programme Officer.    Further legal submissions were made by the parties at the hearing, including the North London Waste Authority (NLWA) who added to their earlier paper on Legal Issues.  In addition, at the hearing, I heard further details about the degree of contact between the Councils and the planning authorities where waste was received from North London (the waste importing authorities).  Subsequently, additional submissions have been received from SEWPAG and EoEWTAB, the NLWA and the Councils[2].

3. There is no dispute about co-operation between the 7 North London Boroughs, other London Boroughs or other persons.

The Substance of the Submissions

Application of the duty to co-operate
4.  SEWPAG and EoEWAB jointly claim the NLWP has failed in the duty to co-operate in that it has failed in its obligation “to engage, constructively, actively and on an on-going basis” with regard to the development of the Plan.  The Councils have not engaged actively with the planning authorities outside London when preparing the Plan and no evidence has been adduced to show any such co-operation.

5.  The Councils responded, accepting that in relation to the preparation of development plan documents, S33A “imposes a duty on specified bodies to co-operate with one another if there are strategic matters planned in the Plan”.  They also submitted that S33A of the 2004 Act defines a “strategic matter” very narrowly.  The relevant definition is “sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas…. .” 

6.  The Councils stated that the Plan is not proposing any development or use of land which would have a significant impact outside the 7 Boroughs (which constitute “the Councils”).  The Councils claim that the statute expressly limits itself to particular development proposals. 

7.  Moreover, the Councils submitted that a “planning area” as defined in the Act, does not include County Councils such as Essex, Oxfordshire, Hertfordshire, Surrey, Buckinghamshire and Northamptonshire.  They are non-qualifying Councils for the purposes of the Plan.

8.  The NLWA supported the Councils and added that in order to demonstrate that the duty was engaged in relation to areas outside London, it would be necessary to establish that policies for development or use of land would have a significant impact.  No evidence has been produced to demonstrate such an impact.
Inspector’s Conclusions
9.  S33A (1) states that “… each person who is: (a) a local planning authority, (b)…., or (c) …, must co-operate with every other person who is within paragraph (a), (b) or (c) … in maximising the effectiveness with which activities within subsection (3) are undertaken.” 

10.  Subsection (3) indicates that the activities within this subsection include “(a) the preparation of development plan documents, and (e) activities that support activities within any of the paragraphs (a) to (c), so far as relating to a strategic matter.” 

11.  Subsection (4) defines “a strategic matter” for the purposes of subsection (3) as “(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and (b) sustainable development or use of land in a two tier area if the development or use (i) is a county matter, or (ii) has or would have a significant impact on a county matter.”

12.  The definition of “planning area” in Subsection (5) includes “(a) the area of – (i) a district council (including a metropolitan district council), (ii) a London borough council, or (iii) a county council in England for an area for which there is no district council, but only so far as neither is in a National Park nor in the Broads, (b) …”

13.  I agree with the Councils that S33A does not state explicitly that waste management is a strategic matter.  Nevertheless, the National Planning Policy Framework (NPPF) includes “the provision of infrastructure for …, waste management, …” as one of  the strategic priorities for the area in the Local Plan. (para 156)  In addition, the NPPF states (a) that “local planning authorities should work with authorities and providers to assess the quality and capacity of infrastructure for … waste … and its ability to meet forecast demands; …” (para 162); and (b) “Public bodies have a duty to cooperate on planning issues that cross administrative boundaries, particularly those which relate to the strategic priorities set out in paragraph 156.” (para 178)  Therefore, I consider that waste management is capable of qualifying as a strategic matter for the purposes of S33A.  Indeed, given that there are extant Regional Advisory Bodies which have been created to examine the regional element of waste management, and that waste which arises in one council area is often managed or disposed of in another, I would say that there is every expectation that waste management should be treated as a strategic matter. 

14.  The Councils also submit that the “planning area” where there has to be a significant impact does not include county councils if they have district councils within them.  I have had regard to this interpretation of S33A but, in any event, a district council (including a metropolitan district) is defined as a planning area.  Accordingly, at the very least, notwithstanding that waste management is a county matter in a two tier area, I consider that where there is (or could be) a significant impact involving a strategic matter, there would be a duty to co-operate with either the county council or the district council where at least two planning areas were affected.  Additionally, county councils which are waste planning authorities would qualify as a “person” with whom there must be co-operation under S33A(1)(a) because they are the local planning authority for waste management. 

15.  Finally, I turn to the submission by the Councils that the Plan does not propose any development or use of land which would have a significant impact outside the 7 Boroughs.  The Councils reinforce this claim by referring to the lack of any proposal for a new waste site on the border of the Plan area and then examining each of the policies in the Plan.  The policies would have the effect of continuing the waste uses at sites in two lists (Schedules A and B) and proposing allocations at sites in Schedule C.  The Councils state that new waste development on Schedule C sites would have to satisfy other policies in the Plan and, in so doing, would not have any significant impact on planning areas outside the 7 Boroughs.  I do not dispute their submissions on this point.  Furthermore, I have no evidence to dispute the claim that the existing Schedule A and B waste sites do not give rise to significant impacts on particular planning areas outside the 7 Boroughs.

16.  Nevertheless, this stance ignores the fact that waste which arises in the NLWP area is being exported to be managed elsewhere and the cumulative effect of the policies in the Plan is to perpetuate the pattern. Indeed, as the NLWP acknowledges, “However, even at the end of the plan period, waste will continue to cross boundaries for treatment.”(para 2.31); and “There are no sites for landfill in north London. Historically the area has been reliant on landfill sites outside the region. This reliance will decline as north London’s new waste facilities come on line and waste is treated higher up the waste hierarchy. However, even when greater self-sufficiency has been achieved there is still likely to be a requirement for some types of landfill, particularly for non-biodegradable and non-recyclable waste.” (para 2.32)

17.  Therefore, whereas I accept that it is possible that waste related development on sites in Schedules A. B and C of the NLWP would not have a significant impact on planning areas outside the 7 Boroughs, the lack of provision for managing all the waste arising from within north London will result in its continued export, albeit perhaps at a reduced level.  SEWPAG and EoEWTAB have calculated that in 2009 about 480,000 tonnes (t) of household (MSW) and commercial and industrial (C&I) waste was exported from north London to landfill outside London.  The significance of the movements is a matter of judgement.  However, the transport of about 144,000t to Buckinghamshire, 100,000t to Northamptonshire, 71,000t to Bedfordshire, 66,000t to Hertfordshire and 52,000t to Essex, in my opinion, is likely to have a very significant impact on the areas where the waste is received and possibly on the transport routes along which it is moved.  The import of waste could also take up landfill or other waste management capacity which might be better used by locally produced arisings. 

18.  Accordingly, I conclude that the absence of policies or proposals in the NLWP to manage all the waste arisings and the consequent continuation of the export of waste would be likely to have a significant impact on at least two planning areas by virtue of the waste being managed or deposited in them.  Consequently, the North London Councils have a duty to co-operate with the councils representing the “planning areas” in which the waste would be managed or deposited. 

19.  I note the claim by the NLWA that the NLWP is based upon the apportionment in the London Plan, that the London RTB has engaged with representatives from the South East and the East of England and that there is no need to repeat the engagement process.  However, the London Plan was prepared before the coming into effect of S110 of the Localism Act and I do not consider that the Councils are absolved from the duty to co-operate as described in the 2004 Act and the NPPF.

20.  I shall now consider whether co-operation as envisaged by the 2004 Act and the NPPF has been carried out but, in the meantime, ask the Councils themselves to consider whether there has been any co-operation which has been constructive, active, ongoing and effective.

Andrew Mead

25 June

[1] S110 of the Localism Act inserted S33A into the Planning and Compulsory Purchase Act 2004: A duty to co-operate in relation to planning of sustainable development.

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