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

28.Planning Guidance and Public Concern

1. 
   Planning Policy Statement 23: Planning and Pollution Control (PPS23) included more commentary than Planning Policy Statement 10: Planning for Sustainable Waste Management Planning (PPS10)¹²² on the case law relating to the perception of risks.
   
2. 
   PPS23 has, however, now been superseded by the NPPF and so is no longer relevant to the determination of this appeal. Therefore only the extant guidance in PPS10 is considered below.
   

29.Planning Policy Statement 10:

387. 
     PPS10 was updated in March 2011 and replaces Planning Policy Guidance 10: Planning and Waste Management (PPG10) published in 1999 and an earlier edition of PPS10 published on 21 July 2005. PPS10 remains current guidance as it was not superseded by the March 2012 National Planning Policy Framework (NPPF)¹²³.
     
388. 
     PPS 10 says that planning authorities should, to the extent appropriate to their responsibilities, prepare and deliver planning strategies that, inter alia, “reflect the concerns and interests of communities”.
     
389. 
     Other relevant sections of PPS 10 are those relating to planning and pollution control, local environmental impacts and health (paragraphs 27 to 31).
     
390. 
     In particular it is noted that PPS 10 says:
     

Para 27: …The planning system controls the development and use of land in the public interest and should focus on whether development is an acceptable use of the land, and the impacts of those uses on the development and use of land. Waste planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced.

391. 
     In relation to the local environmental impacts PPS 10 says:
     

Para 29: In considering planning applications for waste management facilities waste planning authorities should consider the likely impact on the local environment and on amenity (see Annex E).

392. 
     Notwithstanding this PPS 10 advises:
     

Para 30: Modern, appropriately located, well-run and well-regulated, waste management facilities operated in line with current pollution control techniques and standards should pose little risk to human health. The detailed consideration of a waste management process and the implications, if any, for human health is the responsibility of the pollution control authorities. However, planning operates in the public interest to ensure that the location of proposed development is acceptable and health can be material to such decisions.

393. 
     The guidance goes on to suggest that:
     

Para 31: Where concerns about health are raised, waste planning authorities should avoid carrying out their own detailed assessment of epidemiological and other health studies. Rather, they should ensure, through drawing from Government advice and research and consultation with the relevant health authorities and agencies, that they have advice on the implications for health, if any, and when determining planning applications consider the locational implications of such advice. In turn, the relevant health authorities and agencies will require sufficient understanding of the proposed waste management process to provide considered advice. A concurrent process and a transparent relationship between the planning and pollution control regimes will help facilitate this.

1. 
   This advice presents several difficulties in this case. The footnote reference in PPS 10 is to a 2004 review by Enviros which means that the most recent of the limited range of literature cited dates from 2003 and in most cases much earlier. In such a rapidly changing field, particularly relating to air pollution impacts, the 2004 report is no longer up-to-date and is, in some aspects, now demonstrably incorrect. In response to these concerns Public Health England are currently carrying out a new study on the possible health effects of incinerators but the results are unlikely to be available to inform this inquiry.
   
2. 
   Clearly public concerns, awareness and information have not stopped in 2003 – particularly with the internet giving fast and convenient access to the large numbers of recent papers and journals raising concerns about health impacts of incinerators and their emissions. The Enviros review does, however, emphasise that it should not be relied upon in isolation and that “to fully support waste management decisions this report needs to be read in conjunction with other information relating to waste management”. It is important, therefore, that the Enviros review is not simply taken in isolation as the last word on the health impacts associated with waste management facilities.
   
3. 
   To summarise, therefore, there is no doubt that where the perception of harm is genuinely held it will be a material consideration: the weight to be attached to it is for the decision-maker. It is useful at this point to consider how other Inspectors and, where relevant, the Secretary of State have weighted the perception of risk in practice.
   

30.The consideration of Perception of Risk at Waste Inquiries:

1. 
   While ‘perception of risk’ may have been more commonly raised at inquiries for mobile phone masts there have been a number of waste planning inquiries at which the concerns of the public have been addressed and, in some cases, given significant weight. These include
   

1. 
   The planning Appeal decision relating to the reclamation of ‘Round ‘O’ Quarry’ with domestic waste in February 1999. The Inspector refused the appeal by UK Waste Management Ltd based on the cumulative effect of a number of negative factors, but a decisive consideration was the possible consequence for human health and the manner in which such a consequence was perceived by local residents. The Inspector concluded that fears of a health risk constituted a cogent objection to the project. The ground survived a subsequent High Court challenge. Judge Rich said: “Mr Drabble submits that the perception of fear must have been at least the chief additional negative factor to absent of need, converting a “cogent objection” into a compelling reason for resisting the proposal.” I accept this, but the conclusion that the Inspector fell into error does not follow…there is no doubt (i) that such concern is a material consideration, and (ii) the weight to be attached to material considerations is for the decision maker. ….The Inspector weighed it in the balance and it is not for the Court to interfere with his assessment of the weight to be given to it, along with other negative considerations”.
   
2. 
   At Portsmouth the Inspector and Secretary of State accepted the inspector’s conclusions on public perception of harm to human health which were that “there is some justification¹²⁴” for that perception. However this was not considered sufficient, in that case, to overcome the presumption in favour of the development plan which specifically provided for a municipal waste incinerator at that site.
   
3. 
   The Inspector at Kidderminster in determining an appeal for an ‘integrated waste management facility including a 165,000 tpa incinerator, concluded: “I am satisfied that the concerns of the public are genuine and are not simply the outcome of an orchestrated campaign: very many people in this area have a very real fear of what they see as the unknown health effects of the incinerator. The public perception of risk is a negative factor of some significance to place in the scales of the decision making process”. He added “Moreover, in this case where a development about which there are concerns is also very much in the public view, this would be likely to serve as a constant reminder and focus those concerns”. Although the public view in that case came largely from the scale of the buildings and the stack there is no doubt that this proposal would also be very much in the mind of the concerned local residents – not least through repeated odours from the site.
   
4. 
   In his decision letter¹²⁵ recommending dismissal of an appeal for a landraise site at Lamberhurst Farm in Kent the Inspector wrote: “the fear it has generated in the local population and medical practitioners serving the area cumulatively represent a strong objection to the Lamberhurst Farm proposal”. In supporting the conclusions of the Inspector the Secretary of State said¹²⁶:“He also agrees with the Inspector that the public perception and fear of health risks is a factor which must be taken into account.”
   
5. 
   The Inspector’s report to the Secretary of State following an appeal by Gent Fairhead at Rivenhall, Essex¹²⁷ said:
   

13.93 Despite the results of the assessments undertaken by the applicants, many local residents remain concerned about the potential health risk of emissions from the eRCF. Local residents’ fears about the harmful effects on health of such a facility are capable of being a material consideration, notwithstanding that there may be no objective evidence to support such a fear. By itself, unfounded fear would rarely be a reason to justify withholding planning permission. Nevertheless, it seems to me that the anxiety caused by the potential risk of pollutants, even though the physical health risks may be negligible, could have an impact on the well being and the living conditions of local residents.

And concluded:

13.95 In conclusion, I am satisfied that the plant could be operated without causing any material harm to human health, and that this matter would be adequately dealt with by the Environmental Permitting regime. Despite this, the concern of local residents regarding the risk to health, albeit unfounded, would remain as a detrimental impact of the development. Nevertheless, these fears would be ameliorated to some extent by the proposed arrangements for the results of monitoring of emissions to be provided to the Site Liaison Committee.

398. 
     In the decision relating to an appeal for an incinerator at Sinfin Lane, Derby (Ref APP/C1055/A/10/ 2124772), weight was given by the Inspector to the fears of local residents. Although subsequently overturned this was not on the perception of risk ground and the comments on this remain valid¹²⁸. This was considered in a more recent appeal¹²⁹ “in an area where air quality standards were already poor. It was the cumulative effect of the proposal and the existing air quality which led to the Inspector giving weight to fear in this case” [CLG, 2012]
     
399. 
     The recent Inspector’s Decision from an appeal relating to the erection of an energy from waste gasification plant at Green Lane, Eccles, Salford¹³⁰ also addressed this issue. The Inspector wrote:
     

Many local residents raised concerns about the effects of the proposals on air quality, and were concerned about possible plant failure or accidents. These fears are not irrational, or without foundation. There is evidence that the local population has relatively poor health profiles. The NO₂ limit was breached in 2010, although the most recent data shows a substantial downturn in NO₂ levels, which has not been fully explained. There is considerable concern about incineration and health, and I have had regard to the briefing by Friends of the Earth, and the report by Greenpeace British Society for Ecological Medicine. Many representations made submissions along these lines.

And concluded:

69. Fear and apprehension about the consequences of the proposed development for the health of local residents are material considerations in these appeals. I have given these concerns some weight. However, it seems to me that these fears do not properly reflect the levels of control which would be imposed by the pollution control regime. This limits the weight that should be given to health fears in determining these appeals.

1. 
   It is clear, therefore, that Inspectors have given significant weight to the perception of risk in cases where justified by local circumstances. It is therefore now appropriate to consider the objective assessment of public concern and perception in the light of the facts of this appeal.
   

31.Consideration of Risk:

1. 
   When considering the risks it is helpful to bear in mind the quantitative approach to perceived risk assessment developed by Starr and Whipple¹³¹. This was based on the assumption that society achieves, by trial and error, a reasonable balance between risk and benefit. They drew the following conclusions:
   

1. 
   the acceptability of risk is roughly proportional to the real and perceived benefits;
   
2. 
   voluntary risks are some 1000 times more acceptable than are involuntary risks;
   
3. 
   the tolerable level of risk is inversely related to the number of involved persons.
   

1. 
   The risks in this case are involuntary and thus likely to be intrinsically less acceptable. This is not mitigated by perceived benefits as any local benefits are small and are limited mainly to a small number of jobs. Furthermore there is widespread scepticism about the overall environmental benefits of the plant as the proposed use of waste seems increasingly unrealistic as discussed in the first section relating to the NPPF.
   
2. 
   The area around the site, and particularly down-wind is densely populated and risks in this case potentially affect a very large number of people. Although in many cases, particularly those at some distance from the site, any effects on health are likely to be small the integrated total impacts can still be significant.
   
3. 
   Starr and Whipple also proposed that risk perception is not directly related to damage level and probability of occurrence, but increases when the likelihood of occurrence is relatively low and the magnitude of potential damage is high. This is now well established and widely accepted. The perceived damages in this case include shortening of lives and cancer and thus can certainly be considered to be ‘high magnitude’ risks. The concerns, and the weight that can be given to them, are exacerbated by the very poor current air quality and the lack of progress towards achieving legal standards.
   

32.Characteristics of Processes Associated with Perceptions of Risk

1. 
   It is relevant to consider the specific local concerns that relate to incineration and air pollution which exacerbate the perceptions of risk based on the local factors.
   
2. 
   DEFRA has indicated the characteristics of a development known to increase the perceived unacceptability of the associated risks (CD85). These are:
   

1. 
   Unfamiliarity: The risks are unfamiliar (e.g. emissions with obscure names, dioxins, PAH, endocrine disrupters etc.).
   
2. 
   Control: The risks are imposed and cannot be controlled by individuals;
   
3. 
   Proximity in time: The risks may not be immediately apparent to local residents, and may be delayed – such as cancer.
   
4. 
   Proximity in space: The risks are focused around the individual facility, whereas any benefit of the facility is shared across society as a whole.
   
5. 
   Scale: The health and environmental risks of waste management have been subject to very public controversy and contradictory information from pressure groups and industrial sources;
   
6. 
   Dread factor: Implied risk of dread disease or deaths (e.g. cancer, birth defects); The risks arise from man-made facilities and materials in the waste; Some of the risks affect children and future generations.
   

1. 
   The Department of Health has produced a similar list in the 1997 Guide “Communicating About Risks to Health: Pointers to Good Practice” showing that risks are generally more worrying and less acceptable if perceived:
   

1. 
   to be involuntary (e.g. exposure to pollution) rather than voluntary (e.g. dangerous sports or smoking);
   
2. 
   as inequitably distributed (some benefit whilst others suffer the consequences);
   
3. 
   as inescapable by taking personal precautions;
   
4. 
   to arise from an unfamiliar or novel source;
   
5. 
   to result from man-made rather than natural sources;
   
6. 
   to cause hidden and irreversible damage (e.g. through onset of illness many years after exposure);
   
7. 
   to pose some particular danger to small children or pregnant women or more generally to future generations;
   
8. 
   to threaten a form of death (or illness/injury) arousing particular dread;
   
9. 
   to be poorly understood by science;
   
10. 
    as subject to contradictory statements from responsible sources.
    
11. 
    to damage identifiable rather than anonymous victims;
    

1. 
   All of these perceptions, with the possible exception of the last example, apply to this proposal .
   
2. 
   Waste treatment and disposal facilities, particularly those entailing combustion, raise strong concerns relevant to each of these characteristics.