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A waiting game

Only time will tell whether the National Planning Policy Framework helps to deliver a suitable waste infrastructure, says Claire Brook, partner in energy practice at law firm Dickinson Dees

In the ministerial foreword of the National Planning Policy Framework (NPPF), minister of state for cities Greg Clark says that “we must respond to the changes that new technologies offer to us,” and “the planning system is about helping us to make this happen”.

But the question remains whether the NPPF will help to facilitate the paradigm shift required to deliver much-needed waste infrastructure that meets renewable energy targets and addresses climate change.

The NPPF claims to be a move away from elaborate and forbidding planning policy to simple, clear and succinct policy. In part, this has been done with the aim that local communities are included in the planning process and that it is not just the preserve of specialists.

The Government’s intention is to facilitate necessary development and streamline the process for developers. But, with such a substantial rewrite of policy, it will take time for all parties in the process to make the transition.

Inevitably, there will be issues with interpretation of some of the new policies. There is justified concern about the potential for an increase in judicial review challenges which can delay progress on projects.

While policies may be succinct, it does not follow that they will all provide the clarity and certainty needed. A lot of technical guidance has been lost, and some of this is already being reintroduced as appendices to the NPPF.

The position set out in Annex 1 for development plans is also likely to present its own difficulties. There is a 12-month transitional period to give councils time to review their plans in light of the NPPF, where they can continue to give full weight to a plan adopted since 2004, “even if there is a limited degree of conflict” with the NPPF.

After 12 months, if the authority has not reviewed its plan to align with the NPPF, weight should be given to the policies depending on “their degree of consistency” with the framework.

This will be a matter of judgement for the decision makers on a case-by-case basis but will require careful handling to avoid potential challenge.

For waste infrastructure, the national policy position is not just reliant on the NPPF. The Government decided not to include specific waste policies in the NPPF but has launched a separate National Waste Management Plan (NWMP). However, this may not be in place until the end of 2013.

In the meantime, Planning Policy Statement 10 (PPS10) on waste management remains in force. Some fear this creates a policy hiatus which could lead to a lack of certainty for investors in the sector.

Developers can continue to rely on the existing policy framework, at least for the next 12-18 months before the publication of the draft plan, to secure consents for projects. It is to be hoped that the NWMP does not seek to drastically alter the key objectives in PPS10. The Government can be expected to take a bullish approach in the plan given the urgency to deliver the necessary infrastructure.

It ought to reflect the over-arching policies in the NPPF as well as the National Policy Statements (NPSs) for energy infrastructure.

Although the NPSs for energy (EN-1) and renewable energy infrastructure (EN-3) primarily relate to decisions on major infrastructure projects covered by the Planning Act 2008, they will remain a material planning consideration for all waste infrastructure projects.

EN-1 emphasises the significant and urgent need for new energy infrastructure, while EN-3 recognises that the combustion of biomass for electricity generation is likely to play an increasingly important role in meeting the UK’s renewable energy targets.

Advice to chief planning officers is that, in cases where development plans have not been updated to take account of a particular NPS, the NPS is likely to be a material consideration, which the local planning authority (and the secretary of state) will have to consider when determining planning applications. The weight applied to the NPS will be on a case-by-case basis.

In designating or reviewing an NPS, the secretary of state has a duty to do so with the objective of contributing to the achievement of sustainable development. In particular, there must be regard to the desirability of mitigating and adapting to climate change and achieving good design.

In the recent appeal decision for Biffa’s energy recovery facility in Leicestershire, considerable weight was given to the need for the facility. Significant weight was also attributed to the national policy, with the benefits of the project described as “substantial and compelling” in terms of the potential contribution to achieving climate change and energy objectives, sustainable waste management and economic benefits.

These benefits were held to outweigh the harm in terms of visual impact, effects on heritage assets and conflicts with certain policies of the development plan.

The decision demonstrates the weight the Government is prepared to give to its national policy, including EN-1 and EN-3, even where it is not a nationally significant infrastructure project under the 2008 Act.

But there is not just a need for larger scale waste facilities. Smaller plants also have an important role in ensuring that complementary facilities are provided to meet regional and local needs. Hopefully, this will be emphasised in the NWMP when it is issued for consultation.

The Government has tended to call in or recover the larger facilities to deal with itself. With smaller facilities, developers are reliant on local authorities to approve them to avoid an appeal, often in the face of strong local opposition. In a new age of localism - which some misinterpret as meaning more weight should be given to local opposition - this remains a challenge.

There is significant policy support to promote new waste infrastructure, including the NPPF and its presumption in favour of sustainable development. Time will tell if the NPPF, together with the NWMP, will help the industry to deliver projects in this challenging economic climate.

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