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.
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.
