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

7. Priority Consideration of Alternatives:

360. 
     European Regulation (No 850/2004 on persistent organic pollutants and amending Directive 79/117/EEC as amended) ( ‘Reg 850/2004’) implements the obligations arising from the Stockholm Convention and the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants together with the associated UNECE protocols.
     
361. 
     The Regulation is “binding in its entirety and directly applicable in all Member States”.
     
362. 
     Article 6(3) of the Regulation requires that:
     

3. Member States shall, when considering proposals to construct new facilities or significantly to modify existing facilities using processes that release chemicals listed in Annex III, without prejudice to Council Directive 1996/61/EC (1), give priority consideration to alternative processes, techniques or practices that have similar usefulness but which avoid the formation and release of substances listed in Annex III. (my emphasis)

363. 
     The substances listed in Annex III are:
     

• 
  Polychlorinated dibenzo-p-dioxins and dibenzofurans (PCDD/PCDF)
  
• 
  Hexachlorobenzene (HCB) (CAS No: 118-74-1)
  
• 
  Polychlorinated biphenyls (PCB)
  
• 
  Polycyclic aromatic hydrocarbons (PAHs)
  

364. 
     Incineration of waste, as proposed, clearly results in releases of all these substances - especially in residues but also in emissions to atmosphere. There is no doubt about this in relation to, for example, PAHs but it is sometimes claimed that modern incinerators are ‘dioxin sinks’ and that they destroy more dioxins which were in the waste input giving a net reduction in dioxins through the facility. It is shown below, however, that the proposed incinerator at Javelin Park is likely to produce approximately 18 times more dioxin, mainly in the air pollution control residues, than enter into the incinerator via air and waste.
     
365. 
     I have prepared a dioxin balance for the proposed incinerator showing that the incinerator would be a significant net producer of dioxins.
     

366. 
     Section 4(b) of the Persistent Organic Pollutants Regulations 2007 requires the Environment Agency to comply with Article 6(3) of Council Regulation (EC) 850/2004 (as amended)
     
367. 
     It follows that the Environment Agency, in considering this application, were required to “give priority consideration to alternative processes, techniques or practices that have similar usefulness” but which avoid the formation and release of PCDD/PCDF, HCB, PCB and PAHs.
     
368. 
     The approach adopted by the Environment Agency in their consideration of this obligation is limited any consideration to different options within the listed activity of incineration and not, at any stage, to include consideration of any alternatives to incineration – or even whether incineration is appropriate in a policy context for the wastes that would be treated by the proposed facility.
     
369. 
     It is clear that the Environment Agency expects the planning authority to deal with this important issue. In the Decision Document the Agency say¹¹⁰: “It is for the Planning Authority to decide on their appropriate consideration of the requirements of the POP Regulations in respect to their consideration of other residual waste treatment options as part of the planning application process”.
     
370. 
     Nowhere in the application, however, is there evidence of any assessment having been undertaken. Nor was this addressed in the Committee Report.
     

8. Perception of Risk

25.The Evidence of Public Concern:

1. 
   Unusually, the Officer's report does not tell us how many objections have been received – and the minutes of the meeting only records that there were “over 4,000” objections. Subsequent requests to GCC have revealed that there were a total of More than 4,355 objections to the proposal were received from members of the public and from local politicians – far more than have been made to any other planning application in Gloucestershire.
   
2. 
   A wide range of objections were raised by the public, the majority of which related to concerns about air pollution, health and sustainability including:
   

• 
  Visual and landscape impact
  
• 
  Design
  
• 
  Amenity and local environment
  
• 
  Health
  
• 
  Ecology
  
• 
  Scale and need
  
• 
  Technology and waste hierarchy
  
• 
  Location
  
• 
  Disposal of residue
  
• 
  Air Quality
  
• 
  Cumulative impact
  
• 
  Flood risk
  
• 
  Historic/Heritage
  
• 
  Transport and sustainability
  
• 
  Procedural matters
  
• 
  Cost and economics
  

26.Support for the Application:

1. 
   There were just two representations in support of the application, one of which, it is understood, was from the Appellant’s Agent.
   

27.The Case Law Relating to Public Concern:

374. 
     Public concern is capable of being a material concern in planning applications and this is reflected in a body of case law and guidance. The case law shows that there is a wide range of discretion as to the weight which may be attached to public concern and this is discussed in this section.
     
375. 
     It is useful at the outset to recall the Royal Society’s 1992 report on risk which provided the basis for the modern definition of risk perceptions as involving “people’s beliefs, attitudes, judgements and feelings, as well as the wider cultural and social dispositions they adopt towards hazards and their benefits” ¹¹¹.
     
376. 
     Perhaps the most commonly cited case in relation to public concern is Gateshead¹¹². Glidewell LJ said:
     

".... if in the end public concern is not justified, it cannot be conclusive."

1. 
   This is effectively the position adopted by PPG23 and this is discussed further below as although this Planning Guidance has been replaced by the National Planning Policy Framework it was extant at the time of the original refusal. The Guidance needs to be interpreted in the light of a more detailed and extensive consideration of the case law.
   
2. 
   The case law may be briefly summarised as follows:
   

• 
  Human factors can, and sometimes should, be taken into account in making planning decisions (Westminster City Council ¹¹³).
  
• 
  Health concerns are material considerations and should be considered by the decision maker (Skelk¹¹⁴).
  
• 
  Decisionmakers must recognise that the public concern is so important that it can – albeit in rare cases - constitute a valid reason for refusing planning permission even if unfounded (Newport¹¹⁵).
  
• 
  Emotional responses to a proposed land use are capable of being material (West Midlands Probation Committee¹¹⁶ and Broadlands District Council¹¹⁷).
  
• 
  Decisionmakers must attach due weight to the justified concerns (being land considerations) of any companies concerned that if the proposal goes ahead they may be forced to relocate (Broadlands District Council; Norwich City Council¹¹⁸).
  
• 
  Perceptions of risk arising from the fear of repetitions of incidents following a previous history of events can be justified even if the level of incidents has reduced (Smith v FSS & Anor¹¹⁹)
  

379. 
     Newport is perhaps the most important and relevant of these cases and merits more detail at this stage
     
380. 
     Newport related to costs in relation to an appeal where perceived fears had been given sufficient weight to justify the refusal of an application for a waste treatment facility. Staughton LJ considered that the Inspector had properly considered the issue on the costs application, whereas the other two LJs did not. There was, however, no dissent in the Court on what was the issue, and all agreed that a perceived fear by the public can be a reason for refusing planning permission. Gateshead - and whether unjustified public concern can be conclusive - was discussed in some detail and Staughton LJ said:
     

“Glidewell LJ is a great authority on planning matters, but in this instance I cannot agree with him.”

381. 
     Other relevant passages from Newport are:
     

• Hutchison LJ: “I accept Mr Howell's submission that the only sensible construction of the material words is that the Inspector, and therefore the Secretary of State who adopted his reasoning, was approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground for refusal. That was in my judgement a material error of law.”

• Aldous LJ: “However, perceived fears of the public are a planning factor which can amount (perhaps rarely) to a good reason for refusal of planning permission. It is therefore in my view "another planning reason" within paragraph 9 of Circular 14/85. That being the law, the Inspector should have considered whether the council acted unreasonably so that it was not necessary for the case to come before the Secretary of State. In so doing, he should have accepted that the perceived fears, even though they were not soundly based upon scientific or logical fact, were a relevant planning consideration and then gone on to decide whether, upon the facts of the particular case, they were of so little weight as to result in the conclusion that refusal by the council was unreasonable.”

• Staughton LJ: “ ... I would say that local fears which are not, in fact, justified can rank as part of the human factor and could be given direct effect as an exceptional or special circumstance.”

382. 
     The ‘human factor’ mentioned by Staughton LJ in the final bullet relates to Lord Scarman in Westminster City Council when he said:
     

"It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present of course indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance.”

1. 
   In essence, therefore, it was held that perceived fears of the public can amount to a good reason for refusing planning permission although this may be ‘rare’ (Aldous LJ) or in ‘exceptional or special circumstances’ (Staughton LJ). Those perceived fears do not necessarily need to be objective, justified or soundly based upon scientific or logical fact.
   
2. 
   The Javelin Park Committee Report¹²⁰ was silent on this issue and did not address the case law or give any other advice to members save that they should not attach weight to the reduction in property prices as they lie “outside the remit of the planning system”¹²¹.