Issues for Planning Committees in approaching decisions on minerals and waste applications

Name and organisation of presenter

Date www.pas.gov.uk

What is Planning Advisory Service for?

“The purpose of PAS is to help local planning authorities manage and deliver changes in the planning system, and to drive improvements in the overall performance of local planning authorities in England”

(Grant offer letter for 2012-13)

Scope of this presentation• Significance of waste and minerals decisions• National planning policies for waste management• National planning policies for minerals

• Local decision-making

• Detailed NPPF policies on the steady and adequate supply of aggregates

• Detailed NPPF policies for the steady and adequate supply of other minerals

• Top tips and essential points• Questions and discussion

1. Why is Waste and Mineral Planning a significant issue for

Councillors?

Issues for Councillors

• Some waste and minerals applications are among the largest and most complex that Councils regularly deal with– [following transfer of major infrastructure to Planning Inspectors and

Ministers]

• The impacts of waste and minerals development often raises significant environmental issues.

• Essential to society and the economy but proposals deeply unpopular with local communities, though less so once in place and operating

• A tough challenge for any Councillor. A big minerals site or waste plant is a multi-million £ industrial application

Waste management: essentials

• Waste must be managed first as a public health issue

• But now increasingly also in order to use resources well, maximising prevention, re-use and material recovery

• In managing waste we need to mitigate environmental impacts:– traffic (usually the main one, and increasingly so as the industry moves

to larger, more high-tech. management and treatment methods)– also potential for noise, dust, odour, water pollution, visual intrusion,

impacts on landscape and sensitive habitats

• Planning for waste management now governed by the EU Waste Directives – require a National Waste Plan comprising– national policy [in PPS10] and local policy in your waste plan

Types of waste• Municipal solid waste (MSW) from households, restaurants

shops, offices and small businesses – arises everywhere and needs managing locally, though some recycling (e.g. paper, card and glass) is handled nationally

• Commercial and industrial waste (C&I) from business generally – arises widely but concentrated in some areas – some managed locally, some in specialist facilities integral to industry and some regionally and nationally

• Specialist and hazardous waste – generally managed in facilities operating nationally or at originating sites

• Construction, demolition and excavation waste (CDEW) – largely recycled into aggregate or used in landfill/engineering

Mineral planning: essentials

• Minerals can only be worked where they are found, so rarely used just in those areas

• Most minerals dug in England are used in construction – about 85% by tonnage – for concrete, asphalt and road surfacing, mortar, engineering fill, plasterboard, glass.

• Heavy and relatively low value – not practicable to import construction minerals (though we now import most coal)

• Essential to society and the economy – “if you can’t grow it, you have to dig it” - no minerals, no construction, no growth

• But extraction can have intense impacts – on landscape, noise, dust, vibration, on the water system, traffic

What minerals do we produce?Mineral Production in million tonnes

(England 2009 unless stated)

Aggregates 105.93 Widely distributed

Deep mined coal 7.34 South Yorkshire, Nottinghamshire, Warwickshire

Salt 6.33 Mainly Cheshire

Clay & shale (bricks& cement) 5.42 Fairly widespread

Chalk 3.63 Various locations in south and east of England

Opencast coal 2.69

Natural gypsum 1.70 Leics., Notts., Staffs., Cumbria., East Sussex

China Clay 1.00 Cornwall and Devon

Ball clay (for ceramics) 0.70 Dorset and Devon

Potash 0.70 Cleveland and North Yorkshire

Onshore oil 0.50 UK – 2011-2012

Fireclay 0.10 (associated with coal)

Onshore gas 0.10 104,829 tonnes UK – 2011-2012

Fluorspar 0.026 26,000 tonnes – in Derbyshire

Sources: British Geological Survey and Department for Energy and Climate Change

Total: 136,166 million tonnes

The planning response

• Given the social and economic need for minerals and waste management, and the Government’s growth imperative, the key question for planning is:– Is this proposal acceptable at this location in all the

relevant circumstances – or can it be made so by modifications or conditions?

• National planning policy provides a framework within which councillors can make decisions on applications

2. National planning policies for waste management

Waste management functions

• Waste planning – – all County Councils, unitary Councils, Metropolitan Councils, London

Boroughs and National Park Authorities - and some joint authorities

• Waste disposal – – the same authorities as for planning – deliberately! - again, some joint

authorities e.g. in London– the management of municipal solid waste – MSW

• Collection of municipal solid waste – – from households, shops, offices etc by unitaries or first tier authorities

• Pollution control –– Environment Agency (emissions to air & water)– Districts/Unitaries (statutory nuisance)

Meeting the need to manage waste• Planning Policy Statement (PPS) 10 requires waste

authorities to prepare plans and decide applications that:– help drive waste management “up the waste hierarchy” – i.e. away

from landfill and towards re-use and recovery– provide sufficient facilities to meet the present and forecast needs of

their communities– help to implement the National Waste Strategy

• PPS 10 remains in force till the new National Waste Management Plan has been published and approved

• Waste plans should identify sites and areas suitable for new or enhanced waste facilities and allocate sites sufficient to meet forecast waste arisings for at least 10 years ahead, taking into account region-wide analysis and forecasts

Responsibility of waste planning authorities• To plan for the effective management of all forms of waste

arising in their areas: this will always include:– MSW from households, shops, offices, restaurants and some small

businesses;– general industrial and commercial waste (C&I) from larger premises;– construction, demolition and excavation waste (CDEW);

• Depending on waste arisings from industrial, medical and educational sites in the area WPAs may also need to plan for the specialist management of hazardous waste and low and very low level radioactive waste from industrial, educational and health sites.

What sort of waste facilities?

• Specialised and smaller volumes of waste do not need management facilities everywhere – e.g. intermediate and high-level radioactive waste, hazardous chemicals, and paper and glass reprocessing

• But most (municipal solid waste (MSW), commercial and industrial waste (C&I) and construction, demolition and excavation waste (CDEW)) arises everywhere. – these require a network of facilities broadly in line with population,

commerce and industry

What to plan for

• Cross-boundary waste flows have to be considered – waste arisings do not always conveniently match local boundaries

• So it is necessary to plan in conjunction with neighbouring areas [one reason for the Duty to Co-operate] – otherwise authorities can by default be leaving neighbours to take and manage the same waste they also produce themselves

• Every authority needs waste collection and transfer stations, and household waste sites, and most need some larger facilities for materials recovery, processing and disposal

• What is the spatial pattern of facilities that makes best sense?

Regional cooperation on waste

• Regional Strategies are being abolished, (though not yet for legal reasons) but well before they were set up authorities were encouraged to plan waste management regionally

• This requirement continues in PPS10 – regional (or alternative area) groupings of authorities (in Technical Advisory Bodies) should forecast future requirements, plan capacity to manage it, and identify a pattern of facilities across the region or area

Regional cooperation on waste – 2

• On-going cross-boundary co-operation is now required under the Duty to Co-operate in the Localism Act

• This makes sense spatially because the pattern of waste arisings does not always fit council boundaries

• Across the regions [or equivalent sub-national areas] there should be broad self-sufficiency, at least in managing municipal solid waste, commercial and industrial waste, and construction, demolition and excavation waste; since they all arise everywhere

3. National Planning Policies for Minerals

Core planning policy for minerals

NPPF:Minerals are essential to support sustainable economic growth and our quality of life. It is therefore important that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs (para 142)

Local plans for minerals should identify and include policies for extraction of mineral resources of local and national importance in their area . So far as practicable they should give preference to recycled or reprocessed wastes over new extraction but not to the extent of creating shortages requiring the import of material available in the UK (para 143)

National policy: safeguarding

• Minerals plans should– Safeguard important known resources for future use

– Safeguard planned and potential mineral-related sites for rail-heads, river and port wharves, and concrete, concrete product and tarmac/asphalt manufacture

– Encourage the prior extraction of minerals where present before other planned development takes place

National policy: impacts

• Mineral plans should:

– Set out environmental criteria to ensure permitted mineral working does not have unacceptable adverse impacts on the historic or natural environment or human health

– Accept that short-term excessive noise may be necessary– Ensure worked-out sites are well-restored as soon as

possible– Recognise that mineral working, being temporary, is not

inappropriate in the Green Belt provided it preserves openness and does not conflict with the purposes of including land in the Green Belt.

National policy: applications

• Give great weight to the benefits of extraction including to the economy

• Maintain landbanks for non-energy minerals outside National Parks, AONBs, heritage sites and Conservation Areas

• Avoid unacceptable adverse impacts on the natural and historic environments, human health, and aviation safety

• Take into account the cumulative effects of multiple impacts from a number of sites in the same locality

• Control or mitigate at source unavoidable emissions of noise, dust, particles and blasting vibrations

• Do not grant new or extended permissions to extract peat

National policy: applications – 2

• Use conditions to secure high standards of restoration and aftercare of sites as soon as possible-– but requiring bonds or financial guarantees to underpin this should be

exceptional

• Do not normally permit other development in safeguarded areas which might constrain future mineral extraction

• Keep in mind the possible need to open (or re-open former) small quarries to obtain building stone for heritage restoration

• Keep in mind the long-term and intermittent nature of small specialist quarries for building and roofing stone

4. Local decision-making

• Your plan should be prepared having regard to national policies and guidance issued by the Secretary of State– for minerals this is now in the NPPF issued in March 2012– for waste in Planning Policy Statement 10 (PPS10) revised in 2011,

pending the National Waste Management Plan – consultation due late 2012 (together with local waste plans national policies are part of the National Waste Plan required by the EU)

• You must act in conformity with the development plan unless material considerations indicate otherwise

Key legal requirements

How national policy applies• First, through your development plan:

– until March 2013 full weight can be given to your existing plan policies even if they are in limited conflict with the NPPF;

– after March 2013 policies in your plans should be given increasing weight the closer they are to those in the NPPF (and less weight if not)

• But, second, where your plan does not deal with an aspect of the application before you, the national policies on minerals and waste in the NPPF remain a material consideration in your decision [NPPF para.3]

• If you have an out of date plan – or don’t have one at all – from end March 2013 your main decision making framework will be the NPPF

What about “localism”?

• Localism is about abolishing “the entire bureaucratic and undemocratic tier of regional planning” and leaving communities free to take the decisions on developments in their areas

• But the Government’s aim remains to secure the development needed by society and for economic growth - in the right locations and without unacceptable adverse impacts on the environment. (“Sustainable Development”)

• Some development decided by Councils serves a wider area – localism is not freedom to refuse development if it is not just in the immediate interests of the local area

Localism in planning – what the Secretary of State has said (EfW approval, June 2012)

“Reference has been made to the Government’s localism agenda.....Any decision-maker must determine planning applications on planning grounds………. in accordance with the development plan unless material considerations indicate otherwise. Decisions should not be made solely on the basis of the number of representations or signatures on a petition, whether they are for or against a proposal. The Localism Act has not changed …[this]. Nor has it changed the advice ………, namely, that local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless it is founded on valid planning reasons”.

What is a “material consideration”?

• How long have you got? Gallons of legal ink have been spilled on this

• But in essence, it is a consideration of significant relevance to the application you have to decide

• Well-established considerations in minerals and waste applications include:– national policy, traffic impacts, noise, odour, dust, health impacts,

vibration, fly-rock from blasting, visual intrusion, habitats and wildlife, land stability, flood risk, areas of protected countryside, archaeology and heritage sites, and the social and economic effects of the development

What is not material?

• “Spoiling my view” - as distinct from damaging a protected landscape in an AONB or National Park

• “Lowering the value of my house”• “Not the right sort of area for this proposal”• “The proposal serves other areas, but not this one”• Trivial issues of evidently limited importance

Valid objections

• Objections to development must relate to sound planning grounds and be based on evidence related to those grounds, not assertion

• They must demonstrate adverse impacts or effects in relation to material considerations that cannot be mitigated to a reasonable level, either by changes to the proposals or the attachment of conditions to the permission

The question of “need”• In theory owners or controllers of land do not have to prove

the “need” for their proposed development• But for larger projects, especially infrastructure with potentially

significant impacts, the “need” issue has for a long time been implicitly reflected in planning decisions when balancing the provision of facilities to support the economy and society with whether their impacts can be acceptably mitigated

• In minerals “need” is dealt with through the policy requirements for “steady and adequate supply” – in detail managed aggregates supply and landbanks

• For waste “need” does not have to be shown for proposals consistent with an up-to-date development plan (PPS10. para 22)

The new “Duty to Cooperate”

• Introduced by the Localism Act 2011

• The Government’s “localist” replacement for enforced top-down planning in Regional Strategies [“bureaucratic and undemocratic”]

• All authorities – including County Councils – must co-operate [“engage constructively”] – with all other authorities (and prescribed bodies) to maximise the effectiveness of preparation of development plans

The Duty in practice

• It is becoming clear that the duty has to be taken very seriously

• Authorities must decide how widely to co-operate• Extent of duty likely to be considered in the Courts

• Already pivotal in an examination of how managing North London’s waste relates to surrounding counties

5. NPPF policies on the steady and adequate supply of aggregates

Why detailed national policies?

• Aggregates (in the form of sand, gravel, crushed rock and suitable recycled materials) are essential to all modern construction, notably for concrete, road-stone and asphalt

• But, while widely available (especially sand and gravel), they are not evenly distributed in relation to demand

• Hard rock of aggregates quality cannot generally be quarried south and east of a line from Portland to Scarborough

• Some regions are self-sufficient but others rely on top-up supplies from regions with surpluses

• The Managed Aggregates Supply arrangements facilitate this inter-regional rebalancing of demand and supply

History of Government management

• 1940s – emergency wartime permissions for airfields, other military and harbour construction

• 1946 – the Government’s Waters Committee set up sand and gravel “service areas” to supply post-war reconstruction under materials rationing

• 1960s/1970s – as demand for aggregates exploded to supply the roads programme Regional Aggregates Working Parties and national supply Guidelines were set up to implement the 1976 Verney Report into Aggregates Supply – policy to be based on “steady and adequate supply”

• 2012 – new Managed Supply arrangements required by the abolition of Regional Strategies – modified Aggregates Working Parties reviewing supply patterns. Provision in plans to be based on Local Aggregate Assessments (LAAs)

National policy• Prepare an annual Local Aggregate Assessment (LAA), either

individually or jointly by agreement with other mineral planning authorities, based on the average of the last 3 years sales data or an agreed sub-regional apportionment (if available) and other relevant local information, and an assessment of all supply options (including marine dredged, secondary and recycled sources)

• Participate in an Aggregate Working Party and take the advice of that Party into account when preparing the LAA

• Provide in mineral plans for the land-won and other elements of the LAA by allocating specific sites, preferred areas and/or areas of search or by setting out locational criteria for sites

National policy – 2• Use the published National and Sub National Guidelines* on

future provision when planning for the future demand for and supply of aggregates [* based on forecasts of economic activity taking into account its established relationship with aggregates consumption]

• Use landbanks of aggregates reserves to indicate local security of supply, and the additional provision required for new extraction and alternative supplies:– making provision for the maintenance of landbanks of at least 7 years

for sand and gravel and 10 years for crushed rock– ensuring that large landbanks bound up in very few sites do not stifle

competition; calculating and maintaining separate landbanks for any materials of a specific type/quality with a distinct and separate market (e.g. high quality material for fast road surfaces)

6. NPPF policies for the steady and adequate supply of other minerals

Industrial minerals

• Co-ordinate the planning of industrial [and construction] minerals with neighbouring and more distant authorities to ensure adequate provision to support industry and manufacturing

• Encourage safeguarding or stockpiling so that important minerals remain available for use, including reflecting the need to blend clays from different sources for brick-making

Industrial minerals – 2

• Provide a stock of permitted reserves (landbanks) to support actual and proposed investment in new plant or maintain and improve existing plant and equipment, as follows:– at least 10 years for individual silica sand sites; – at least 15 years for cement primary (chalk and limestone) and

secondary (clay and shale) materials to maintain an existing plant, and for silica sand sites where significant new capital is required; and

– at least 25 years for brick clay, and for cement primary and secondary materials to support a new kiln

Energy minerals

• Plan for on-shore oil and gas development, including unconventional hydrocarbons, reflecting the three phases of development (exploration, appraisal and production)

• Encourage underground gas and carbon storage and associated infrastructure if geological circumstances permit

• Indicate where coal extraction and the disposal of colliery spoil may be acceptable

• Encourage the capture and use of methane from coal mines in active and former coalfield areas

• Provide for coal producers to extract fireclay separately, and if necessary stockpile it for use in brick making

Underground gas storage and coal• NPPF para 148 – when determining planning applications,

ensure that the integrity and safety of underground storage facilities , taking into account the maintenance of gas pressure, prevention of leakage of gas and the avoidance of pollution

• NPPF para149 – permission should not be given for the extraction of coal unless the proposal is environmentally acceptable, or can be made so by planning conditions or obligations; or if not, it provides national, local or community benefits which clearly outweigh the likely impacts to justify the grant of planning permission [This maintains March 1999 policy on coal with the addition of “national” to the rebuttable presumption against development]

7. Top tips and essential points

Success factors in good decisions

• A sound and up-to-date plan that effectively covers the issues raised in foreseeable waste and minerals applications

• Plans that are informed by constructive and positive officer engagement with other authorities with an interest – and not necessarily just with immediate neighbours

• Officers have engaged in pre-application discussions with developers from the outset

• Ensure applicants have engaged openly and fully with local communities and other genuine interests from the outset

• Understand exactly what national policy is relevant

• No surprises – no hidden agendas

Contact us

email pas@local.gov.ukweb www.pas.gov.ukphone 020 7664 3000