Saturday, 28 July 2012

27 July, and the NLWP responds to the Inspector: Ah, "disqualified by s33A(5)(a)(iii)." Of course.


Preliminary Matters
The Bodies with whom it was necessary for the seven North London Waste Planning Authorities (“the Boroughs”) to co-operate with pursuant to s.33A in respect of the preparation of the North London Waste Plan (“the NLWP”)
1. The Stage 1 Decision of the Inspector dated 25 June 2012 identifies 4 Counties which it is said will be likely to experience significant impacts through deposit of waste in their landfill sites and “possibly” also as a result of the movement of waste through those Counties. Those Counties are Buckinghamshire, Northamptonshire, Hertfordshire and Essex. Those Counties are all two tier areas. One other area is mentioned - Bedfordshire. Bedfordshire County Council was abolished in April 2009 and its responsibilities have devolved to Central Bedfordshire Council and Bedford Borough Council which are both unitary authorities. However, Bedford Borough Council is not represented by either the South East Waste Planning Advisory Group (SEWPAG) or the East of England Waste Technical Advisory Body (EoEWTAB) and has not made any complaint that it is affected by the NLWP issues. It is therefore not addressed in this Submission.

2. In order for unitary authorities to be s.33A bodies they must qualify under s.33A(4)(a) and not (b) because they are not two tier areas. It is not accepted that landfill waste imported into the planning area of Central Bedfordshire from North London would have a significant impact on that planning areas or any other planning areas. However, for the purposes of this Submission only, it is treated as qualifying as a s33A body in relation to the NLWP preparation. (None of the aforementioned County areas can qualify as planning areas for the purposes of s.33A(4)(a) and s.33A(5) because they are all Counties with District councils and are thereby disqualified by s33A(5)(a)(iii)).

3. Therefore this Submission addresses the extent to which there has been engagement with the Counties of Northamptonshire, Buckinghamshire, Hertfordshire and Essex and the unitary authority of Central Bedfordshire. These areas shall be referred to as the “5 Counties” for ease of reference.

4. If the Inspector considers that there would be significant impacts or strategic matters relating to other Counties or administrative areas then the Boroughs need to be informed of that and to be given an opportunity to respond.

The meaning of Engagement

5. Section 33A(2) indicates that a Plan-making Authority should engage constructively, actively and on an on-going basis during the preparation of a development plan document. The Planning and Compulsory Purchase Act 2004 gives no definition of what engagement entails. There is no prescribed way of engaging, such as an obligation to have face-to-face meetings about concerns (although this has happened on several occasions in the preparation of this Plan in any event). Whilst it is noted that the Inspector’s stage 1 decision refers to advice in the National Planning Policy Framework (NPPF), that advice cannot and should not be given any weight in determining either what is a “strategic matter” for the purposes of s.33A or what constitutes engagement pursuant to s.33A. There is no reference whatsoever to the term “strategic priority” in s.33A. Whether the NLWP raised any strategic matter with any particular qualifying body is a matter of statutory interpretation applied to the likely impacts of the NLWP. Advice in the NPPF is by nature broadbrush and non-specific and is not to be used to interpret the meaning of a statute.

6. In this case, active engagement with the s.33A bodies and their concerns has occurred. Not only have the Boroughs listened to the points made by the 5 Counties (via SEWPAG & EoEWTAB) at waste management meetings but, as a reaction to verbal concerns and written concerns in correspondence, the Boroughs have commissioned and undertaken targeted research and work into the concerns raised by those bodies.

7. It is to be emphasised that there is no duty on a Plan-making Authority to agree with a s.33A body. Inspectors are the arbiters of what might be appropriately modified in a submitted Plan. In this case, the Boroughs have been active in producing evidence to provide a base on which the Inspector can make a judgement about the extent to which landfill waste is distributed outside London and about whether, given the affected County’s landfill capacity, there will be any registrable impact if North London waste is imported in the predicted pattern and tonnage. For example, if it is thought that the Plan should be modified to attempt to reduce export of waste outside North London then that could be put forward.

The Time Period in which the Duty to Co-operate was binding on the Boroughs

8. Section 110 of the Localism Act 2011 came into effect on 15 November 2011. Nothing in the Act or Commencement Order gave the section retrospective effect. Therefore, whilst the Boroughs have actively engaged with all potential s33A bodies at all times, there was no formal “s.33A duty” on the Boroughs to co-operate in the preparation of the Plan prior to that date.

9. By 15 November 2011, substantial preparation of the NLWP had been completed. The proposed submission draft had been published in May 2011 and consultation had taken place and had closed. The Boroughs, through officer and member-level meetings, had considered the responses, including any made by a s33A body, and had agreed the Schedule of Proposed Minor Changes (CDNLWP11). The Sustainability Appraisals were being checked and reviewed.

10. The “preparation” of the NLWP as referred to in s.33A(3)(a) was in its final stages but notwithstanding that, the Boroughs continued to engage with and actively consider the comments made by the s.33A bodies and drew up further proposed minor changes which they intended to introduce at the hearings. Review of the consultation responses was an on-going process – continuing until the Plan was ready for submission to the Secretary of State.

11. As the Inspector will be aware, there is no duty on a Plan-making Authority to agree all suggested changes or comments made by a s.33A body. It is necessary to listen to the comments and consider them. Where the Plan-making body consider it to be appropriate, they have proposed amendments to the Plan. Where the suggestions are inappropriate or unacceptable, they have not proposed amendments to the Plan.

12. The complaint of the 5 Counties is centred around the imported waste to landfill sites in their areas and how that might be minimised from London including the North London sector. Clearly this is an issue which has been debated for many years between all stakeholders. Not only does North London use the landfill sites in outlying counties but many counties and/or districts within them, such as Hertfordshire, export their waste to waste management sites in North London. For example, the various technologies for disposing of waste at the Edmonton Eco Park process a proportion of imported waste.

13. The Counties and the personnel responsible for preparing the NLWP and the London Plan have been discussing and planning these movements for many years with the result that certain policies have been formulated in the London Plan, and following on from the approval of those policies through the formal Examination process of the London Plan, policies have been formulated in the emerging NLWP. The two processes are connected to one another and can only reasonably be considered holistically.

14. It is noted that at paragraph 19 of the Stage 1 Decision the Inspector states that the Councils [here termed the Boroughs] are not absolved from the duty to co-operate through any engagement between the London RTB and SEWPAG and EETAB. This approach would leave out of account very relevant evidence of engagement between the parties about the key issue which SEWPAG & EoEWTAB have raised in relation to the NLWP, namely, waste being exported from London. It is to be emphasised that the preparation of this development plan document (NLWP) starts from a base handed down to it from the London Plan. The formulation of the London Plan was part and parcel of the process of engaging with the 5 Counties over export of waste to landfill sites. Therefore, engagement must be considered holistically and that is why this Submission correctly covers a period prior to 15 November 2011 and beyond to submission.
Extent of co-operation

15. The remainder of this Submission explains the co-operation that has taken place through Regional Technical Advisory Boards (RTABs), the London Plan Examinations, inter-regional discussions and continuing engagement through the process of drawing up the NLWP with counties and representative bodies and proposing changes to the emerging plan. It is to be read in addition to the paper: Duty to co-operate – Boroughs’ response to Inspector (CDNLWP41).

16. The Boroughs have been represented at the London RTAB since 2005 by the NLWP Programme Manager, who is currently chair of the body. The general responsibilities of RTABs are set out in Annex D of PPS10. The London RTAB exists to be a forum for waste planning at the regional level and draws its members from planning authorities, regulators, waste operators and the regions. It is a forum which feeds into and reacts to the waste strategies that the Mayor is legally required to draw up and, specifically, the waste policies and proposals in the Mayor’s spatial strategy, i.e. the London Plan. The London RTAB promotes discussion and work on many aspects of waste in London and provides a forum for the discussion of waste management-related issues at the regional level. The chair of London RTAB attends national meetings of RTAB chairs.

17. Representatives of South East of England RTAB and East of England RTAB (respectively the predecessor organisations of SEWPAG and EoEWTAB) are always invited to attend London RTAB meetings and frequently did so. Reports from these regional bodies were standing items on the London RTAB agenda.

18. Reports from the South East and East of England RTABs included details of the state of and progress on regional plans and strategies. The amount of waste coming from London, the degree to which the regions were prepared to accept it and the provision made for it in regional strategies was a constant topic of discussion and engagement. The North London Waste Plan has been drawn up, therefore, within a framework of inter-regional relationships and knowledge of the concerns held by regions. The representative of the NLWP has taken those concerns back to the Plan-making Authority and borne them in mind when formulating the Plan. For example, the vision of the Plan is to reduce reliance on landfill and one of the main objectives of the Plan is to ensure that North London works towards self-sufficiency and that is why those formulating the Plan have been scrupulous in ensuring that sufficient land is identified in North London for waste management purposes.

19. Furthermore, the representative of the NLWP has been active in giving regular reports on the progress of the NLWP at London RTAB meetings so that the regional representatives have always been connected to and made aware of the progress of the NLWP.

20. Since April 2011, Deborah Sacks of Sacks Consulting has attended London RTAB meetings on behalf of SEWPAG and EoEWTAB. Following the meeting of regional, county and borough representatives in August 2011, referred to by SEWPAG and EoEWTAB in their statements, the London RTAB considered the outcomes of that meeting and how the work could be carried forward. Whilst SEWPAG and EoEWTAB have stated that “GLA officers stated that it is the role of Borough Plans to do this” (Main Matter 1 Response, paragraph A2.2), the note (see Appendix 2) of that meeting states that “There is disagreement between WPA and GLA officers as to the extent to which the London Plan should identify where waste arising in London is managed. In cases where the London Boroughs are working on joint waste plans, they are beginning to make clear efforts to engage with authorities outside of London and this was strongly welcomed.”

21. Actions from this meeting (assigned jointly to Shaun Jarmai as secretary of London RTAB and Deborah Sacks) were for more work to be undertaken at the regional level into surveying waste planning areas outside of London, gathering data from officers in these areas and then projecting at the regional scale the landfill requirements and locations to 2031. At this point in time, no progress has been reported on this work.

22. There has been a clear, constructive, active and ongoing relationship with the representative bodies of the waste importing authorities for the NLWP area in the wider context of the London region. The RTAB meetings and other exchanges have provided numerous opportunities for exchange of information and input on cross boundary waste flows. In all of these engagements, these issues have been recognised as being regional and have always been discussed at that level with actions to be undertaken to investigate this agreed as appropriate at the regional level (specifically the regional study agreed to be undertaken at the 16th August 2011 meeting). As part of this, the Environment Agency did complete the Landfill Studies for London, East of England and South East (CDNat48).

23. More specifically, in relation to the concerns raised by bodies such as SEWPAG and EoEWTAB, the Boroughs commissioned the NLWP Technical Report Addendum (CDNLWP14) to add to the evidence presented in the Technical Report (CDNLWP13) on the cross-boundary movement of waste. This was aimed at dealing directly and constructively with concerns raised by these bodies. Its stated aim was to identify, to the extent possible, the available landfill capacity outside London able to accept residual waste for the life of the NLWP. It is dated October 2011.

24. Overall the interactions at regional level led to changes to the NLWP in relation to its consideration of landfill and led to the commissioning of work on landfill capacity.

London Plan Examinations

25. The London Plan has gone through a number of changes while the NLWP has been prepared, including alterations to the 2004 London Plan which was in place at the outset of the NLWP preparation process and its replacement by a new London Plan in the latter stages. The various sessions that took place as part of the Examinations in Public on the London Plan have provided a forum for both the Boroughs and the regional bodies to engage constructively in the same sessions relating to waste.

26. The Early Alterations to the London Plan (2004) were examined in June 2006. These Alterations proposed detailed waste policies for the London Plan. The North London Waste Authority (NLWA) and the Boroughs made joint representations at the hearings, the East of England Regional Assembly and the South East of England Regional Assembly also took part in the parts relating most to strategic issues.

27. The Further Alterations to the London Plan were examined in June and July 2007. As far as waste was concerned, the main alterations related to the apportionment of waste arisings between London boroughs. The hearings concentrated on the criteria used and the implications of the results. Again the NLWA and the Boroughs were jointly represented. No regional bodies were invited to take part on this occasion.

28. The Replacement London Plan (2011) was examined in 2010. The waste session was held in September 2010. The joint North London waste group was again represented at the session. In addition, the East of England Regional Assembly, the South East Partnership Board, Essex, Hertfordshire, Surrey and Hampshire County Councils were represented. The amount of landfill going out of London during the plan period was a key topic in the discussion led by the Panel. This discussion on landfill resulted in Panel Recommendation 5.12, their endorsement of Further Suggested Changes (FSC) 5.25 and 5.32 and the Panel not endorsing FSC 5.27 which was a table showing possible destinations of London’s waste to landfill. Specifically, the Panel found that in view of the uncertainties, “it would be wrong to give statutory development plan status to “possible” figures”. This view that it is inappropriate to provide this level of detail at the regional level is also one that is held by the Councils at the sub-regional level, particularly in light of the results of CDNLWP14 which found significantly larger landfill capacity present in the counties relative to the declining amount of waste predicted to require landfilling in the future.

29. At the London Plan Examinations, the Boroughs have actively engaged in ongoing and constructive planning for waste at a strategic level that has set the overarching context for the NLWP. This is the primary level for matters such as the amount of waste to be exported from London to be discussed and hopefully agreed. As a consequence of this interaction with the counties at the London Plan Examinations, the NLWP is in conformity with the London Plan and the principles that underpin it.
Discussion between regions on waste flows

30. Inter-regional waste flows were discussed at the Advisory Forum on Regional Planning for London, the South East and the East of England or Inter-regional Forum (IRF), for short. IRF meetings were meetings for councillors from regional strategic bodies to discuss strategic planning matters including growth areas, rail transport, aviation, waste and other such issues.

31. Waste was a regular agenda item at these meetings. To assist the work of the IRF, the Inter-regional Technical Forum was set up in 2006. A subsequent Defra study on waste exported from London and imported to East and South East of England informed the waste elements of regional strategies for London, the South East and the East of England.

32. The London Plan has a clear underlying assumption that, whilst London should become as self-sufficient as possible, there still needs to be an element of waste which is sent to landfill outside of London. This point has been argued and debated through several London Plan examinations and the GLA has worked with surrounding regions in arriving at this position. The IRF and its Technical Forum provided a means for the engagement between GLA officers and surrounding regions. The GLA has engaged constructively with surrounding regions to arrive at the London Plan policies which provide the context that the Boroughs are working within. The NLWP is in conformity with the London Plan and therefore fits within the inter-regional context that has been set out therein.
Continuing engagement through NLWP process

33. In section 5 of their paper Duty to co-operate – Boroughs’ response to Inspector (CDNLWP41), the Boroughs set out details of engagement with Essex and Hertfordshire County Councils which will not be repeated here. Para 5.40 of the NLWP (CDNLWP1) gives specific reference to landfill capacity issues in Essex.

34. The Boroughs have consulted widely throughout the process of the NLWP with details provided in CDNLWP3 and CDNLWP4. As part of their consultation and engagement, the Boroughs have received comments from the East of England Regional Assembly (EERA) at Issues and Options and at Preferred Options Stage. Comments were also received from Essex County Council and Hertfordshire County Council at Preferred Options stage.

35. As required by legislation, the Boroughs have responded to the comments raised. Appendix 1 of this Submission sets out how the comments made by EERA, Essex and Hertfordshire were dealt with and the changes that the Councils made to the NLWP as a result. Appendix 1 also shows that in the Preferred Options (CDNLWP20), the Councils introduced a policy (Policy NLWP 5) on Management of Construction, Demolition and Excavation waste (now Policy NLWP 6 in the Plan) in response to the issues raised. Further changes were made following consultation on the Preferred Options. In the proposed submission version of the NLWP (CDNLWP1), there is a discussion of cross-boundary issues in section 2. The role of landfill is addressed in section 4 and section 5. In addition, a policy on Hazardous Waste was also introduced.

36. These are clear examples of ongoing and effective engagement with s33A bodies. The Boroughs have responded to issues raised by the waste importing authorities and made changes to the NLWP as a result. As the next paragraphs show, the Councils took these comments as representing issues from waste importing authorities in the East and South East of England in the absence of specific comments from each authority.
Lack of communication

37. In SEWPAG and EoEWTAB Main Matter 1, it is stated that significant quantities of waste are to be exported to waste authorities who may not be planning to receive this. It then goes on (para A.4.2 onwards) to list a number of related authorities where there has been a lack of liaison between the Boroughs and the waste authorities in question. It is surprising therefore, given the historic trends of landfill going to these counties and the alleged significant impacts of landfill being sent there, that these authorities have not communicated any concern about this to the Boroughs while the NLWP was being prepared. The Boroughs have not received any communications on any waste planning matters from:
Buckinghamshire County Council
Northamptonshire County Council
Bedfordshire County Council (abolished in April 2009)
Central Bedfordshire Council
Bedford Borough Council
Thurrock Council
Milton Keynes Council

38. As already stated, there has been communication with Hertfordshire and Essex. It is a matter of agreement that the Boroughs received a letter from Oxfordshire about landfill in February 2012, just prior to submission of the NLWP. The NLWP Programme Manager has met representatives of Surrey County Council on a number of occasions and the subject of landfill from North London has never been raised.

39. In addition, the Boroughs have received no communication on waste planning matters from the following remaining members of EoEWTAB:
Cambridgeshire County Council
Luton Borough Council
Norfolk County Council
Peterborough City Council
Southend-on-Sea Council
Suffolk County Council

40. The Boroughs have received no communication on waste planning matters from the following remaining members of SEWPAG:
Bracknell Forest Council
Brighton & Hove Council
East Sussex County Council
Hampshire County Council
Isle of Wight Council
Kent County Council
Medway Council
Portsmouth Council
Reading Council
Royal Borough of Windsor and Maidenhead
Slough Council
West Berkshire Council
West Sussex County Council
Wokingham Council

41. Over the five and a half years spent to date on producing the NLWP, the Boroughs have been co-operating with the waste importing authorities and their representatives in a manner that has been constructive, active, ongoing and effective. The Boroughs have taken part in strategic debate through the RTABs, they have engaged in the examinations of the London Plan, they have taken on board issues raised by counties and regions and commissioned specialist work on landfill streams. In the absence of specific comments from across all authorities, the Councils have taken on board the comments and representations made by representative bodies and made changes to the NLWP as a result. Whilst the formal duty to co-operate became binding on the Boroughs towards the very end of the Plan preparation period, it is clearly reasonable for all the examples of engagement with representatives of Hertfordshire, Buckinghamshire, Essex, Northamptonshire and Central Bedfordshire to be taken into account by the Inspector.

On behalf of:
The seven North London Waste Planning Authorities
27 July 2012


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