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Planning Act 2008
Thousands of new recycling facilities need to be built to meet targets to reduce waste sent to landfill. Replacing landfills would create a network of smaller waste management facilities closer to communities. However, obtaining planning permission remains the single biggest barrier to the timely delivery of new waste management infrastructure.
The Government recently proposed reforms to the planning consent regime through the Planning Act 2008 which aims to improve the determination process for the largest infrastructure projects.
Nationally Significant Infrastructure
A range of development projects have been categorised as nationally significant infrastructure which includes energy, transport, water and waste projects. Nationally significant waste management projects include the disposal or recovery of hazardous waste facilities which exceed the following thresholds:
- 100’000 tonnes pa for disposal of hazardous waste by landfill or in a deep storage facility; and
- 30’000 tonnes pa in any other case.~
There are also implications for Energy from Waste (EfW) projects, as energy generating stations with a capacity exceeding 50MW are also included within the definition of nationally significant infrastructure.
National Policy Framework
The policy framework for nationally significant infrastructure will be set out in a series of National Policy Statements which will aim to guide the decision making process for such development. National Policy Statements would be devised and prepared by the Secretary of State and would set out the need for infrastructure which falls within the thresholds of ‘nationally significant development’.
ESA continues to liaise with the Government on the preparation of a sectoral National Policy Statement to guide the decision making process for hazardous waste development which meets the above thresholds. The sectoral National Policy Statement should be available for consultation in summer 2010 and designated in 2011.
The criteria and prescriptive detail of the National Policy Statement has yet to be determined but may include:
- the amount, type and size of development which is appropriate nationally or within a particular area;
- the criteria that will be applied when deciding whether a location is appropriate; and
- the potential means of mitigating impacts.
A National Policy Statement could only take effect after having undergone public consultation, a sustainability appraisal and parliamentary approval. Existing sectoral policy statements which meet these criteria could assume the position of a National Policy Statement.
National Policy Statements will be kept under review by the Secretary of State and would be subject to legal challenge through Judicial Review, provided objections were lodged within six weeks of their issue.
Infrastructure Planning Commission
Responsibility for determining applications for national development will be transferred from local authorities to an Infrastructure Planning Commission: a panel comprised of independent experts. The Commission would be expected to receive applications from April 2010 and would be guided by the National Policy Statements in its determination of applications. The Commission would aim to issue development consent within 9 months (6 months’ examination and 3 months’ determination).
The Commission will publish guidance on the nature of developments that it should receive for determination and will specify the required format for applications, supplementary information and pre-application consultation.
There is a clear emphasis on the Commission determining applications of nationally significant infrastructure. Any such application received by planning authorities would be notified to the Secretary of State who is likely to direct the application to the Commission for determination.
The Commission has the power to issue consent for development associated with an infrastructure project. A legal challenge of the Commission’s decision could only be made through Judicial Review and within six weeks of the decision date.
Community Infrastructure Levy
The Planning Act has effectively abolished plans to introduce a Planning-gain Supplement and instead outlines a framework for the introduction of a Community Infrastructure Levy (CIL).
The overall purpose of CIL is to ensure that the costs incurred in providing infrastructure to support development can be funded (in whole or part) by developers.
CIL – which could be levied on new development proposals from April 2010 - would be based on the variety of planning tariffs already in place across the country, and would be set by local authorities in accordance with their development plans and infrastructure needs, enabling councils to capture greater levels of planning gain to support new infrastructure and housing. A current consultation proposes that the charge would be expressed as a cost per square metres of gross internal floorspace.
The rate of CIL liability would be determined at the point in which planning permission was granted but would not be payable until commencement of development. CIL could not be charged by a local authority until it had adopted a Charging Schedule, setting out the rates of CIL that would be applied to development-types and in different zones within the local area. Charging Schedules, in turn, could be not adopted without a local authority’s Core Strategy (draft or adopted) in place.
The consultation outlines the Government’s intention to limit the potential for exempting categories of development from CIL liability, and has proposed that only charities would be exempt, whilst affordable housing development could attract a lower rate of CIL.
Planning Obligations would remain in place and could also be levied on CIL chargeable development. However, Planning Obligations would be scaled back and would not be used to raise revenue for general infrastructure needs (as this would be the purpose of CIL) and instead would be used solely to secure the necessary requirements that facilitate granting of planning consent for a particular development.
Reforms to the existing planning regime
The greatest emphasis of the Planning Act is on reforms to the processing and determination of the largest infrastructure projects. However, the Act also proposes more minor changes to the existing planning system. Of particular significance, following legal challenge, changes can be made to a development plan or a planning strategy without having to re-start at the very beginning of the plan preparation process.
What more can be done to improve planning?
The current system for the determination of the vast majority of waste planning applications has been largely unaffected by the Planning Act and ESA therefore outlines below a number of recommendations for improvements to the current system:
ESA’s Recommendations
1. Timely and adequate delivery of waste development frameworks
• The introduction of the Planning and Compulsory Purchase Act required all waste planning authorities to replace waste local plans with new waste development frameworks. In England, 34 county councils and even more unitary authorities are responsible for preparation of waste development frameworks but the Planning Inspectorate had approved as sound less than 10 local authorities’ waste development plans.
• Timely delivery of new waste management facilities depends on local authorities having in place up to date development plans with provision for the allocation of waste sites. Without such, the submission of development proposals are likely to run contrary to a development plan, increasing the chances of proposals being referred for decision.
• The Government must offer guidance on the procedures to be followed in the preparation of waste development frameworks and this should include details of the waste issues that need to be included in the core strategy. Planning authorities should be encouraged to prepare (waste) core strategy which contain policies that facilitate the development of recycling/recovery technologies.
• Waste development plan documents must outline the number, capacity and type of facilities that will be required. This provides transparency and is a valuable way of informing the public on the challenges their community faces regarding the management of waste they themselves produce.
2. Extended Permitted Development Rights
• ESA believes our sector should be treated like other utilities and that permitted development rights should be extended to minor, uncontroversial development on existing waste management sites. This is not a panacea but would release resources to focus on more substantial applications. This requires an amendment to the Town and Country Planning (General Permitted Development Order) 1995.
• The change would, for example, help existing facilities to respond quickly to regulators. For example, the installation of spray masts may be required on an existing facility in response to changes to the Environment Agency’s permitting regime, or HM Revenue and Customs may request the installation of a weighbridge to ensure better data reporting for landfill tax purposes.
3. Planning/permitting interface
• Planning authorities and the Environment Agency both have responsibility to support the delivery of sustainable waste management infrastructure, however, the interface between the planning and permitting regimes remains confused leading to overlapping activities and additional administrative burdens in the form of costs and time.
• ESA would therefore welcome greater clarity on the roles and responsibilities of planners and the Environment Agency. Planning authorities should focus on whether development is an acceptable use of land whilst pollution control is concerned with application of measures to prevent pollution to the lowest practicable level.
• In determining applications for waste management facilities, planning authorities should:
-focus on whether the development itself is an acceptable use rather than on control of the processes or waste streams involved;
-consider only the aspects of operations enforceable under planning control to minimise impacts on the environment, transport network and local communities; and
-secure decommissioning or restoration to agreed standards.
• Planning authorities must be confident in the Environment Agency’s ability to assess the potential impact of emissions on human health and the environment as a permit would only be granted if the proposed design, construction and operational standards adhered to stringent regulatory controls.
• A robust, consistent and informed response from the Environment Agency is essential when responding as a statutory consultee in the planning process. ESA urges the Environment Agency to promote closer liaison between its planning and permitting departments for a more co-ordinated approach when responding to planning authorities. Crucially, the Environment Agency should refrain from lodging planning objections on matters best considered through the determination of a permit.
4. PPS10 should be better reflected in waste development plans
• ESA welcomed the Government’s introduction of PPS10 in July 2005 which sets out the Government’s national policies for planning for waste management. The policies of PPS10 should be taken into account by planning authorities in preparing development plans, and form a material consideration in determination of individual planning applications.
• ESA’s Members have expressed concern that PPS10’s policies have not adequately implemented through waste development plans. Robust interpretation of PPS10 has been broadly limited to decisions made by the Planning Inspectorate upon appeal.
• ESA suggests development plans should be assessed, in the context of PPS10, for evidence of: apportionment; allocation of sites for waste management development; interpretation of the proximity principle as ‘nearest appropriate facility’; planning for residual waste; planning for shortfall in landfill capacity; and correct interpretation of self sufficiency.
Last Updated: September 2009
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