A barrier to progress

A survey of professionals in the waste PFI sector has found that almost three-quarters believe the planning system has become a major obstacle to meeting landfill targets, compared to less than a quarter who said the same in 2006. Nigel Hewitson looks at what has changed.

There is a widespread perception abroad that the land use planning system represents an obstacle in bringing forward development projects rather than a means of facilitating them. On the basis of the results of a recent survey we conducted, it would appear that nowhere is this perception more widespread than in the waste sector.

In 2006 and again in 2009 Norton Rose carried out a survey aimed at those involved in the Waste PFI sector. Both surveys sought views as to whether the UK Government was likely to meet the targets set out in the EU Landfill Directive of 1999 to reduce the amount of biodegradable waste being sent to landfill by 2010.  Both also sought views from those surveyed as to what they considered to be the most significant challenges in pursuing a PFI Waste Programme.

A comparison of the results of the two surveys is instructive. On the main question about the prospect of meeting the landfill reduction target, respondents were very much more optimistic in 2009 than they had been in 2006. Whereas in 2006 as many as 73% of respondents thought the target would not be met, in 2009 55.5% thought it would.

On the question of challenges to be overcome, there was an even more significant shift: whereas only 25.4% of the 2006 respondents cited planning and the planning system as a major obstacle, an astonishing 73.2% of the 2009 respondents mentioned planning as a barrier to progress.  So why is planning now considered such a concern - and what has changed in just three years to produce such a significant change in perceptions of the system?

The comments made by respondents varied widely and a number of respondents did not elaborate on the bald statement that planning is a problem.  The reasons that were put forward largely fell into the following areas:

• the planning process takes too long and is too complicated;
• it is difficult to obtain public acceptance of waste schemes and a large number of objectors can lead at best to delays and, in a worst case scenario, to outright refusal; and
• local planning authorities seem to have difficulty in understanding and distinguishing between the impacts of differing technologies. One example given was of a planning authority treating gasification as if its impacts were the same as incineration, when most experts would say that the former was a significant improvement over the latter in terms of its environmental effects.

One respondent summed up the views of many as follows: “The main challenge is planning.  Even with will and enthusiasm all these [waste projects] are very sensitive locally and the planning process takes ages”.  

Views will differ as to the extent to which these criticisms are justified. It is undeniably the case that some applications do, as a fact, take many months, or even years, to get through the system and obtain planning permission - especially if the case goes to appeal or is “called in” by the Secretary of State. Certainly it is often difficult to predict with any accuracy the timescale for obtaining planning permission within the overall project programme.

Waste projects come forward relatively infrequently. When they do come forward they tend to be inherently complex, demanding a level of understanding and familiarity which local planning authorities and planning inspectors will not necessarily be able to build up in the same way as they will with more frequently seen applications - such as residential developments.  Allied to that point, the way in which waste is dealt with has changed considerably in recent years, with much more emphasis being placed on recycling and new cleaner technologies such as gasification, “plasmafication” and anaerobic digestion.

As a result, planning use classifications have struggled to keep up - witness the apparent inability or unwillingness of at least one authority to distinguish between gasification and incineration. Most uses involving the processing of waste are outside the current Use Classes Order and are sui generic, meaning that any change of use is likely to require planning permission. For a use that is in a Use Class, a change of use to any other use within that class will not require permission.

There is an inherent tension between the duty of planning committees, which comprise elected councillors, to have regard only to material planning considerations and the accountability of individual councillors to those electing them (whose view of the development may well be “not in my back yard”). This often leads to planning committees resisting schemes because of the level of public objection, regardless of whether such objections have a sound planning justification. It is very easy for delays to arise as a result. Planning Committees may defer the application to obtain more information or for a site visit or may even refuse proposals to appease their electorate - leading to the need for an appeal to the Secretary of State.

It has certainly not helped matters that local planning policy has in the last few years been in transition - moving from old style local and structure plans (possibly with a separate waste plan) to the new Regional Spatial Strategies and Local Development Frameworks. This process has taken much longer than was anticipated, and in many areas the statutory policies are hugely out of date with little weight being able to be afforded to emerging, more appropriate, policies because they are at an early stage in the adoption process.

Not all these problems are, of course, unique to waste projects but it appears they are particularly keenly felt in that sector. One way in which these issues could be addressed is to make the newly-established Infrastructure Planning Commission (IPC) responsible for waste projects. (Its remit in the waste sector is currently limited to hazardous waste and waste water.)  This would speed up the process as the IPC will be working to very tight timescales in considering schemes. The IPC would also quickly build up expertise in waste projects - as it would see them quite frequently, and would readily limit itself to consideration of relevant planning issues - as it is statutorily obliged to follow National Policy Statements.

Nigel Hewitson is a Senior Associate and Head of Planning at International Legal Practice Norton Rose LLP.