Warrington Clinical Waste Treatment Centre Appeal Proposed Outline Evidence of Alan Watson

3. Planning Policy

1.The Objectives of the Waste Framework Directive:

36. 
    The obligations arising from the Waste Framework Directive (originally in EC/75/442 as Article 4 and now in 2008/98/EC as Article 13) is to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
    

• without risk to water, air, soil, plants or animals; or

• without causing nuisance through noise or odours; or

• without adversely affecting the countryside or places of special interest.

37. 
    There have been a number of court cases on the interpretation of Article 4 (as it then was) described by DEFRA. The interpretation is equally valid to Article 13 as it uses the same language:
    

3.9. …The European Court of Justice indicated in the Lombardia case¹¹ that the Article 4 requirements should be viewed as objectives rather than absolute requirements¹².

3.10. In the UK courts, the Court of Appeal held that the objectives must be kept in mind, but recognised that a decision might still be lawful where other material considerations meant that “the decisive contribution has not been the contribution to the achievement of the objective”¹³.

3.11. Only effects resulting from the operation of a waste disposal or recovery activity will be relevant. In this context, visual amenity issues arising from the building or structure itself do not arise because these are not concerned with the operation of the activity.

3.12. Planning and pollution control authorities should discharge their duties in relation to the relevant objectives in line with Government policy on their complementary roles, as set out in PPS 10 [and for Wales in the Technical Advice Note on waste (TAN 21)].

1. 
   Similarly the supplementary guidance to PPS10 says at para 8.10 that the “Courts¹⁴ have held that an objective in the EU Waste Framework Directive is: “...something different from a material consideration...A material consideration is a factor to be taken into account when making a decision and the objective to be attained will be such a consideration, but it is more than that. An objective which is obligatory must always be kept in mind when making a decision even while the decision maker has regard to other material considerations.“
   
2. 
   The Relevant Objectives therefore set a high standard of protection which decision makers are expected to achieve in determination of applications for waste management facilities.
   

2.National Planning Policy

1. 
   Planning applications (and appeals) should be determined in accordance with the development plan unless material considerations indicate otherwise¹⁵.
   
2. 
   The Act also states¹⁶: “if to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be).”
   

3.The National Planning Policy Framework (‘NPPF’)

42. 
    The National Planning Policy Framework¹⁷ (NPPF) was published in March 2012, with the aim of streamlining the planning system.
    
43. 
    The NPPF says:
    

“At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking”(bold emphasis in original)

44. 
    Para 196 states: “the planning system is plan led. Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise.”
    
45. 
    Paragraph 197 adds: “In assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development.”
    
46. 
    It confirms that there are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
    

● an economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;

● a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being; and

● an environmental role – contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy.

1. 
   The NPPF also places significant importance on the involvement of communities in the planning process. The Ministerial Forward states: “in recent years, planning has tended to exclude, rather than to include, people and communities. In part, people have been put off from getting involved because planning policy itself has become so elaborate and forbidding – the preserve of specialists, rather than people in communities. This National Planning Policy Framework changes that. By replacing over a thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning”.
   
2. 
   Section 8 of the document covers the issue of promoting healthy communities and states: “the planning system can play an important role in facilitating social interaction and creating healthy, inclusive communities. Local planning authorities should create a shared vision with communities of the residential environment and facilities they wish to see. To support this, local planning authorities should aim to involve all sections of the community in the development of Local Plans and in planning decisions, and should facilitate neighbourhood planning”.
   
3. 
   Section 10 relates to Climate Change and is clear that planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low carbon energy and associated infrastructure. This is central to the economic, social and environmental dimensions of sustainable development.
   
4. 
   It is notable that the NPPF says “within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking”. Amongst the most relevant of these 12 principles are that planning should:
   

• 
  be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area
  
• 
  not simply be about scrutiny, but instead be a creative exercise in finding ways to enhance and improve the places in which people live their lives;
  
• 
  contribute to conserving and enhancing the natural environment and reducing pollution.
  
• 
  take account of and support local strategies to improve health, social and cultural wellbeing for all,
  

51. 
    In relation to the environmental role the NPPF adds:
    

1. 
   that the planning system should contribute to and enhance the natural and local environment by (para 109):
   

“preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability;”

2. 
   Applications should (Para 120) “prevent unacceptable risks from pollution” furthermore “planning policies and decisions should ensure that new development is appropriate for its location” and that “the effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account”.
   
3. 
   That planning policies should (para 124):
   

“ sustain compliance with and contribute towards EU limit values or national objectives for pollutants, taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan”.

4. 
   Pollution is defined in the Glossary of the NPPF as
   

“Anything that affects the quality of land, air, water or soils, which might lead to an adverse impact on human health, the natural environment or general amenity. Pollution can arise from a range of emissions, including smoke, fumes, gases, dust, steam, odour, noise and light”.

1. 
   It is notable that the definition of pollution does not require that harm is caused - simply that it “might lead to an adverse impact on human health, the natural environment or general amenity” [my emphasis].
   

4.Waste Strategy 2007

53. 
    Waste Strategy 2007¹⁸ (“WS 2007”)¹⁹ covers England only. It is currently subject to a review process started in July 2011²⁰ but until that is completed it remains the relevant waste strategy for the determination of this appeal.
    

One Planet Living:

54. 
    Both the opening paragraph of the Executive Summary of WS2007 and the first paragraph of Chapter 1 emphasise the Government’s goal:
    

" Aim

i. As a society, we are consuming natural resources at an unsustainable rate. If every country consumed natural resources at the rate the UK does, we would need three planets to live on. The most crucial threat is from dangerous climate change. Our goal is to make the transition towards what the WWF and BioRegional call ‘One Planet Living’." [my emphasis]

55. 
    And as the introduction to Chapter 1:
    

“1. We are living beyond our environmental means. If everyone consumed as many natural resources as we do in England, then WWF suggests we would need three planets to support us. So our goal is ‘One Planet Living’. Using the planet’s resources within the limits of its eco systems is vital to the survival, health and prosperity of future generations”. [my emphasis]

56. 
    The more recent Waste Strategy Consultation for Wales includes a similar goal but differs from WS2007 by including a target date of 2050 for “One Planet Living”.
    
57. 
    The implications of the WS2007 “one planet” targets for this application are discussed further in the next section.
    

Technology Choices and Preferences:

58. 
    There is no dispute that WS2007 "envisages some increase in recovery of energy from waste in both the municipal waste and commercial and industrial waste streams".
    
59. 
    It says that recovering energy from waste (EfW) is “only a valid option for those wastes which cannot realistically be treated in other ways, and would otherwise have to be disposed of to landfill”.
    
60. 
    And that “Energy from waste is expected to account for 25% of municipal waste by 2020” and notes that this “is less than the 34% by 2015 anticipated in 2000” (the emphasis is, in each case, in the original).
    
61. 
    Furthermore the Strategy is clear that the Government "remains technology-neutral on energy from waste" with the sole exception that" Apart from AD, the Government does not generally think it appropriate to express a preference for one technology over another, since local circumstances differ so much" thus the Government and WS2007 seek to "further promote anaerobic digestion".
    
62. 
    And²¹: “Recent research for Defra (produced since publication of the consultation document) suggests that anaerobic digestion (AD) can provide significant environmental benefits over other options for food waste (and may be particularly cost effective for food waste if separately collected). In view of this research and the strong views of consultees, the Government has decided that WS2007 should place more emphasis on AD as an appropriate technology choice for certain wastes”.
    
63. 
    Thus the Strategy:
    

• explicitly recommends AD for certain biowastes; and

• encourages more consideration of the use of AD both by local authorities and by businesses.

64. 
    The then Minister emphasised how the best choice of technology for food waste is anaerobic digestion²²:
    

“Central Government doesn’t usually have a preference when it comes to how leftover waste is dealt with as long as all the options higher up the waste hierarchy have been exhausted first.

It is usually down to each local authority to determine how best to deal with the waste in their area and make decisions that fit their own individual circumstances.

But when it comes to food waste we do have a preference. We think anaerobic digestion is the best process to use, and that local authorities need to collect food waste separately for this purpose.”

65. 
    It is unusual for the Government to give such strong emphasis to specific technologies and this should be given significant weight particularly as AD is focussed specifically at biodegradable waste – the stream most directly relevant to the obligations arising from the Landfill Directive to divert biodegradable municipal waste away from landfill.
    

Government Review of Waste Policy in England²³

66. 
    The July 2011 Review emphasises:
    

“Our evidence base shows that of the main options for the treatment of food waste, anaerobic digestion offers the greatest environmental benefit…To be treated by anaerobic digestion, it is best if food waste is collected separately at source…”²⁴

“It is important to treat food waste as high up the hierarchy as possible” ²⁵

“Waste infrastructure has a long lifetime and therefore changes in the composition and potential volumes of waste in the future cannot be ignored in the development and selection of technologies now” ²⁶

1. 
   The emphasis on anaerobic digestion and separate collection of food waste is still very strong.