Report to the Secretary of State for Communities and Local Government by Elizabeth Hill BSc(Hons), BPhil, MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government
Date: 30 September 2013
TOWN AND COUNTRY PLANNING ACT 1990
CALLED-IN APPLICATION BY CORY ENVIRONMENTAL MANAGEMENT LTD/WHEELABRATOR TECHNOLOGIES INC FOR AN ENERGY FROM WASTE PLANT AND RECYCLING CENTRE
AT
THE WILLOWS BUSINESS PARK, HIGH (SADDLEBOW) ROAD, SADDLEBOW INDUSTRIAL AREA, KING’S LYNN, NORFOLK, PE34 3RD
Inquiry commenced on 26 February 2013
Land at the Willows Business Park, High Saddlebow Road, Saddlebow Industrial Area, King's Lynn, Norfolk, PE34 3RD
File Ref: APP/X2600/V/12/2183389
Report APP/X2600/V/12/2183389
CONTENTS
1. Procedural matters 1
2. The site and surroundings 4
3. Planning policy 5
4. Planning history 7
5. The proposals 7
6. The case for the applicants 8
7. The case for Norfolk County Council 93
8. The case for King’s Lynn and West Norfolk Borough Council 140
9. The case for KLWIN 175
10. The cases for Interested Persons 190
11. Written representations 201
12. Conditions and obligations 204
13. Inspector’s Conclusions 208
14. Adequacy of the ES 240
15. Planning balance 241
16. Human Rights 243
17. Recommendation 244
Appearance list 245
Documents list 250
Annex A – List of approved plans 272
Annex B – Conditions 273
Annex C – Abbreviations used in the report 285
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File Ref: APP/X2600/V/12/2183389 Land at the Willows Business Park, High Saddlebow Road, Saddlebow Industrial Area, King’s Lynn, Norfolk, PE34 3RD • The application was called in for decision by the Secretary of State by a direction, made under section 77 of the Town and Country Planning Act 1990, on 30 August 2012. • The application is made by Cory Environmental Management Ltd & Wheelabrator Technologies Inc to Norfolk County Council. • The application Ref C/2/2011/68644 is dated 9 June 2011. • The development proposed is an energy from waste and recycling facility, the details for which are set out in The Proposals, below. • The reason given for making the direction was that the proposal concerns matters that are of substantial regional and national controversy. • On the information available at the time of making the direction, the following were the matters on which the Secretary of State (SoS)particularly wished to be informed for the purpose of his consideration of the application: - the consistency of the application with the development plan for the area; - the conformity of the application with policies contained in PPS10: Planning for Sustainable Waste Management and in the National Planning Policy Framework; - how the application relates to the emerging Norfolk Waste Allocation Development Plan Document; and, - any other matters that the Inspector considers relevant.
Summary of Recommendation: The application be approved, and planning permission granted, subject to the conditions set out in Annex B.
Procedural Matters
1. The inquiry opened on 26 February 2013 and sat for 30 days, also sitting on 5-8 March, 11-15 March, 26-27 March, 3-5 April, 9-11 April, 15-19 April, 22-26 April, and 16-17 May 2013. The inquiry did not sit on the afternoon of the Waste Site Specific Allocations DPD examination when this site (WAS65) was discussed, in order to allow those with an interest in the development to attend the examination. An accompanied site visit was held on 9 April and unaccompanied site visits were carried out on various evenings during the sitting period and also on 15 May 2013 (document X7).
2. Apart from the opening day and two of the evening sessions, which were held at the Corn Exchange, King’s Lynn, the remainder of the inquiry was held at the Professional Development Centre, Kilham Way, King’s Lynn. There were concerns by some members of the public about the adequacy of the capacity of the Professional Development Centre hall. However, apart from the second day of the inquiry and one of the evening sessions, when the hall was very full, at other times its capacity was more than sufficient. At the Inspector’s request Norfolk County Council (NCC) had made a search of the local area for other venues and the results of the search, which show the chosen venues as being the best available in the local area, are in document N2.
3. Prior to the start of the inquiry, the Planning Inspectorate agreed to the Borough Council of King’s Lynn and West Norfolk (BC) and King’s Lynn Without Incineration (KLWIN) being Rule 6(6) parties.
4. The Pre-Inquiry meeting was held at the Lynnsport Centre, King’s Lynn, by the Inspector originally appointed to the case, Mr KG Smith BSc, MRTPI. There were some problems with the public address system, which had been commented on by www.planningportal.gov.uk/planninginspectorate Page 1
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members of the public and for this reason the Lynnsport Centre was not used for the inquiry.
5. Due to the appointed Inspector’s ill-health, the case was re-assigned to me, prior to the commencement of the inquiry.
6. An Environmental Statement (ES) [CD/PA2-6, 8], was submitted with the application, together with a supporting statement and standalone documents [CD/PA1 & PA7]. NCC considered that further information was required [CD/PA15] and this was submitted in January 2012 [CD/PA9-12], together with an updated statement of community engagement [CD/PA12a]. Verification reports [CD/PA13] were submitted in April 2012. The ES is discussed further in this report. Further planning application documents were submitted in December 2012 [CD/PA17-21] and other technical reports commissioned by NCC and the BC are in documents CD/T1-T7.
7. An Environmental Permit (EP) (Ref EPR/PP3633FJ) for the facility and its decision document were issued by the Environment Agency (EA) [CD/E1-2] in July 2012. A first stage R1 certificate for the facility [C77] based on the design of the facility was issued during the inquiry on 26 April 2013 and made known to the parties on 10 May 2013. The EA now classify the proposal as a recovery operation, rather than a disposal operation, as stated in the EP.
8. KLWIN say that the R1 document was produced late in the inquiry and they had little time to ascertain the implications of the change to the status of the facility. Therefore I gave extra time after the close of the inquiry for them to comment on the document [C77] and an opportunity for a response to their views from the applicants and NCC. However, no response was received from KLWIN.
9. The applicants have entered into a contract with NCC, as waste disposal authority, for the treatment of Municipal Solid Waste (MSW). This has attracted Public Finance Initiative (PFI) credits from the Department of Environment, Food and Rural Affairs (DEFRA). A version of the contract, with redacted commercially- sensitive information, and associated documents are included in the documents at CD/J1-J8. Prior to the inquiry and on the first day, requests were made by KLWIN and others that the full, rather than the redacted, version of the contract should be before the inquiry. This is discussed further below.
10. A number of concerns were raised about the copies of written representations submitted on the application which were made available in the library for the inquiry, including missing attachments. Having examined the documents, I was concerned that there appeared to be missing pages of some of the representations. I asked both NCC and local people to check that their submissions were complete. This resulted in some of the attachments, for example, The Wash Biodiversity Action Plan, being resubmitted, and NCC decided to re-copy all of the original representations. These are the copies before the Secretary of State and are certificated by NCC as being a true copy of the representations received in document N3.
11. KLWIN have also had concerns that some of the application plans have not shown the revised position of the proposed development at Centrica B power station, which was approved by DECC on 7 December 2010 [CD/A17]. This does not affect any development within the “red line” of the application and only appears to affect a few of the application plans (for example, Fig 2.1, 4.28, 4.31 rev D and 4.33).
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KLWIN have questioned whether the changes to Centrica B have affected the air quality modelling. This is dealt with under the relevant air quality sections below.
12. The Norfolk Waste Site Specific Allocations (WSSA) Development Plan Document (DPD) was the subject of an independent examination in April 2013. The Inspector’s Report into the examination was made public on 23 August 2013. This was after the close of the inquiry, so I gave the main parties and rules 6 parties the opportunity to comment on the report. In addition, consultations drafts of the National Waste Management Plan for England and the updated Planning Policy – Planning for Sustainable Waste Management (updated PPS10) were also published and a similar opportunity for comment was also given on those documents. These have been included in the cases and my conclusions.
13. Statements of Common Ground (SoCG) have been drawn up between the applicants and NCC [X2], the applicants and the BC [X3] and the applicants and Norfolk Wildlife Trust (NWT) [X6]. X2 includes a description of the proposed development; the site and its surroundings; the development plans and other relevant legislation and policy guidance; local finance considerations, including £90m PFI credits and an annual saving to NCC of £8m per year on waste management; the need for the proposal; its location; and other policy areas on which there are agreement. X3 includes a description of the development; the site and surroundings; agreed distances to relevant receptors; relevant development plan policies and other policy and guidance; and confirms areas on which the BC has no objection. An annex to X3 includes the scope of environmental monitoring; and the methodology, monitoring locations and quality assurance and control for air quality monitoring for NO2 and fugitive dust from the IBA site. X6 sets out agreements on the presence and distribution of Habitat 7150 at Roydon Common and material on the Air Pollution Information System (APIS) Critical Load Function (CLF) and the Process Contribution (PC) affecting the site.
14. The application was called in for decision by the SoS by a direction, made under section 77 of the Town and Country Planning Act 1990, on 30 August 2012. The matters on which the SoS wished to be informed for the purposes of considering the application were:
a) its consistency with the development plan for the area;
b) its conformity with the policies in PPS10;
c) the NPPF;
d) how it relates to the emerging WSSA; and,
e) any other matters that the Inspector considers relevant.
15. At the pre-inquiry meeting, the original Inspector set out the other matters, which he felt were relevant to the inquiry:
- Waste issues, including the waste hierarchy/impact on recycling and nearest appropriate installation
- Flood risk and water quality
- Alternative sites
- Carbon footprint, including the consideration of alternatives
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- Air quality, in relation to health, ecology and transport
- Ecology
- Health, in the context of paras 26-31 of PPS10
- Perceived harm
- Landscape and visual impact
- the adequacy of the ES
- conditions
- S106 agreements
16. In addition, other relevant matters to be considered are local financial considerations and Localism, especially in the light of the high level of public interest in the proposal.
17. I am grateful to Graham Groom of Persona Associates, together with Helen Wilson who took over the role of programme officer for a number of days, for their assistance in the smooth running of the inquiry. They arranged the inquiry timetable and ensured that documents were catalogued, copied and circulated to the parties. Those attending the inquiry, whether taking part in giving evidence or observing the proceedings, have praised the courteous way in which the programme officers dealt with their numerous questions and requests for information.
The Site and Surroundings
18. The vacant site is split into two main parts, the North Land and the South Land, by the spine road to the Willows Business Park. The business park is located to the south of King’s Lynn and the A47 and within the settlement boundary, with the spine road connecting to High Road and thence to Saddlebow Interchange on the A47. In addition, areas are included in the application to enable cable routing to the grid to the southeast and pipe routing to a nearby business to the northwest for the provision of heat generated from combined heat and power. The total area for the application is about 6.4 ha.
19. The Willows Business Park is already well-developed, including the Centrica A gas- fired power station (not currently operational), a police investigation centre (PIC), a car hire depot, and a Household Waste Recycling Centre (HWRC). Closer to the A47 lies a large paper mill, accessed off Poplar Avenue, and the adjacent Saddlebow Industrial Estate, which includes Norfolk Arena, a speedway circuit. On the opposite side of High Road, close to the A47, lies a travellers’ site. The South Land is crossed by high voltage cables and has an earth bund to the side. To the south of this area and High Road lies open agricultural land with sporadic houses.
20. In addition to the road system, there are public rights of way and long distance footpaths along the bank of the River Ouse (Fen Rivers Way), the bank of the River Nar (Nar Valley Way) and a right of way connecting to High Road, which crosses the Flood Relief Channel.
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Planning Policy
21. The Development Plan for the area comprises the Norfolk Minerals and Waste Development Framework Core Strategy and Minerals and Waste Development Management Policies Development Plan Document 2010-2026 (2011) (MWCS) [CD/D1]; the King’s Lynn and West Norfolk Borough Local Development Framework Core Strategy (CS)[CD/D3]; and, the King’s Lynn and West Norfolk Local Plan 1998 (saved policies not superseded by the CS) (LP)[CD/D2]. In addition, the Norfolk Waste Site Specific Allocations DPD (WSSA) [CD/G26] was the subject of independent examination at the time of the inquiry.
22. The MWCS vision, aims and objectives set out the need for Norfolk to manage an equivalent amount of waste expected to arise in the County and an ambition to be a leader in waste prevention, significantly increasing the recycling and composting capacity and increasing the recovery of energy from waste, ensuring a large reduction in non-hazardous waste being landfilled. Policy CS3 states that provision will be made to manage the quantities of non-hazardous waste, set out in the tables in Appendix A, together with the requirements for recovery, recycling and landfill, including a small allowance for landfill for London’s waste. Targets for recycling are the same as those in the Waste Strategy for England (WS2007) [CD/U24]. Policy CS4 sets out the new waste management capacity required and its phasing, with 370,000 tonnes of recovery (residual treatment) facilities to be provided over the period 2010-2015. Policy CS5 sets the criteria for the location of waste management facilities. For strategic facilities, these need to be well-related to the Norwich Policy Area, Great Yarmouth urban area, King’s Lynn or Thetford and outside the area of environmental constraints. Paragraph 6.23 of MWCS specifically mentions the proposed PFI project site, although the Inspector’s report on the DPD [CD/G9] makes no comment on its suitability for this particular proposal.
23. Policy CS6 sets out general waste management considerations, including the types of land, like industrial/ employment land that would be suitable for such uses, subject to them having no unacceptable environmental impacts. Policy CS8 is similar to CS6, dealing with residual waste treatment but requires sites to have no unacceptable environmental, amenity or highway impacts. Policy CS10 sets criteria for new non-hazardous landfill. Policy CS13 requires the generation of renewable energy from new residual waste treatment plants and supports the location of waste plants generating heat and/or electricity to be located near industrial and/or residential users of heat/energy. It also requires that sites should be developed, operated and restored without flood risk to the site itself or to other downstream land uses, taking into account climate change.
24. Policy CS14 is a policy designed to protect and enhance Norfolk’s environment, with development required not to have any unacceptable impacts on: natural resources, the character of the landscape and townscape, biodiversity and geodiversity, heritage assets and residential amenity. Policy CS15 states that development should have satisfactory HGV access, without generating any unacceptable impacts on highway safety, capacity, air quality, the natural and historic environment, together with physical impacts.
25. Policy DM1 seeks to prevent harm to locally-designated nature conservation sites and identified habitats, species or features in UK and Norfolk Biodiversity Action Plans (BAPs) but allows for mitigation. Policy DM3 seeks to protect ground and surface water quality and soils. Policy DM4 requires the Districts’ Strategic Flood
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Risk Assessments (SFRAs) to be used to inform decisions on waste management facilities and where appropriate the Sequential and Exception Tests to be used. Policy DM8 requires proposals to be of good quality design and preserves heritage assets. Policy DM11 requires sustainable methods of design and construction to be used. Policy DM10 requires a Transport Assessment (TA) to be submitted for new proposals to show suitable access, routes, consideration of other road users, drainage and Travel Plans. Policy DM12 requires development to be of an appropriate design, scale and siting and ensures the protection of the amenity of local residents. Policy DM13 requires applicants to show that harmful emissions would be minimised and that there would not be a harmful effect on Air Quality Management Areas (AQMAs). Policy DM15 requires cumulative impacts of proposals to be taken into account.
26. Policy CS01 (the Spatial Strategy) of the BC’s CS promotes King’s Lynn as the main centre for the Borough and the main economic driver for the area. Policy CS02 sets out the settlement hierarchy with King’s Lynn as the sub-regional centre. Policy CS08 covers sustainable development, including flood risk, using SFRAs to plan growth, whilst recognising that some growth might have to take place in flood risk areas. It also supports the provision of renewable energy resources, unless there are unacceptable locational impacts that are not outweighed by other benefits. The only relevant saved policy in the LP is 4/21, which requires buildings to be in harmony with the building characteristics of the locality.
27. The submission draft WSSA identifies the application site (WAS65) as suitable for composting, recycling/processing, anaerobic digestion (AD), thermal treatment and other forms of residual waste treatment. At the time of writing this report, the Inspector’s Report had been received by the Council and was under consideration by them. The views of the main and Rule 6 parties were sought on any implications for the proposal as a result of the Inspector’s Report, and these are set out in the relevant sections of my conclusions. Since the DPD has not yet been adopted, it has significant, but not full, weight.
28. In terms of national guidance, the National Planning Policy Framework (NPPF) [CD/U1] seeks sustainable development, for which there is a presumption in its favour, and sets out core planning principles. (However, as set out in para 119, this does not apply where an Appropriate Assessment is required.) Section 1 aims to secure economic growth. Section 4 promotes sustainable transport. Section 7 requires high quality design. Section 11 includes policies to meet the challenge of climate change, including increasing the supply and use of renewable and low carbon energy and guiding development to lower flood risk areas. Section 11 seeks to conserve and enhance the natural environment, including landscapes and biodiversity and also seeks to prevent pollution. The section on decision-taking (para 186 onwards) includes guidance on the plan-led system and the weight in favour of sustainable development. The Annex to the NPPF sets out guidance on determining the weight of emerging plans. The Technical Guidance (TG) to the NPPF [CD/U2] sets out further information on flood risk including the Sequential (ST) and Exception Tests. [Note: DCLG Guidance in has been published recently in Beta-mode. This was not taken into account in this report, but the SoS will have regard to it.]
29. Planning Policy Statement 10: Planning for Sustainable Waste Management (2011) (PPS10) [CD/U5] sets out Government planning policy on waste and has been updated to reflect the changes in the revised Waste Framework Directive (rWFD)
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[CD/L6]. Its overall objective in terms of sustainable development is to protect human health and the environment by producing less waste and using it as a resource, through moving waste up the waste hierarchy and away from landfill. It sets out key decision-making principles which include implementing the strategy in the development plan and considering the potential impacts on the local environment and amenity, but does not seek to control processes that are a matter for the pollution control authorities. It also states that decision-makers should work on the assumption that the relevant pollution control regime will be properly applied and enforced. PPS10 says that need is not required to be shown where there is an up-to-date development plan. Annex E to the document sets out locational criteria for waste development. The draft Updated Planning Policy – Planning for Sustainable Waste Management [CD/U8] was published in draft form in July 2013. It is an intended replacement for PPS10 but as a draft it has limited weight. Its principal changes include: strengthening Green Belt protection; reflecting the rWFD with waste as a resource; requiring co-operation between WPAs; and encouraging the use of CHP in the siting of EfW facilities.
30. National policy on waste is contained in the Waste Strategy for England (2007) (WS2007) [CD/U24], the Government Review of Waste Policy in England (WPR2011) and its Action Plan (2011) [CD/U23]. The current legal framework for waste is contained in the Waste (England and Wales) Regulations 2011 (WR2011) [CD/L8]. Documents reflecting current national energy policy include: Meeting the Energy Challenge – Energy White Paper (2007) [CD/U37], UK Low Carbon Transition Plan (2009) [CD/U40]. In addition, national energy policy including EfW is contained in the Overarching National Policy Statement on Energy (2011) (EN-1) [CD/U3] and the National Policy Statement on Renewable Energy Infrastructure (2011) (EN-3) [CD/U4], although the applicability of these documents to this case is disputed by some objectors. The proposed replacement for WS2007 was published in draft form in July 2013 as the Waste Management Plan for England [CD/U29]. As a draft it has limited weight. It analyses the current waste management situation in England and the type, quantity and source of waste generated and existing treatment. It assesses the need for new schemes and sets out general locational criteria for major schemes and general waste management policies.
Planning History
31. Information supplied by the BC and NCC indicates only a limited planning history to the site, with outline and other adjacent planning applications related to the development of the business park.
The Proposal
32. The proposal is described as: an energy from waste (EfW) facility with an expected throughput of about 268 thousand tonnes per annum (ktpa) but with a maximum capacity of 275 ktpa and a stack height of 85m above ground level; an integrated steam turbine-generator plant for power of about 24.2 MW of electricity gross (net export of 21.1MW without Combined Heat and Power (CHP)); grid connection cables, plant and equipment to enable electricity to be supplied to the public supply network; infrastructure to enable CHP, including the potential for the provision of a steam off take connection to an adjoining local business; an incinerator bottom ash (IBA) recycling area for the recovery of ferrous and non-ferrous metals from the bottom ash and in turn to recycle the remaining bottom ash into a product for use
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in the aggregates industry; a visitor centre capable of accommodating up to 40 people to promote education and greater awareness of waste issues (waste minimisation, re-use, recycling etc) renewable energy (and the role of EfW) as well as being available for community use; offices associated with the visitor centre to accommodate the administration and management staff of the Willows Power and Recycling Centre; ancillary development including weighbridges, access and internal roads and parking facilities; and, landscape and biodiversity enhancement areas within the site to improve the overall appearance, biodiversity benefits and functionality of the site.
33. Further details are set out in the planning application supporting statement [CD/PA1] and the ES, including the additional information.
The Case for the applicants (Cory / Wheelabrator)
The main points are:
Introduction
34. The waste to be treated at the Willows would be residual waste, comprising both MSW and commercial and industrial (C&I) waste. Although it was conceded in questioning that the “black bag” waste which would be burned would include some potentially recyclable material, this would be waste that it was not economic to recycle and would be allowed for in Reg 12 of WR2011. The MSW would be supplied under a contract dated 7 February 2012 entered into between NCC and Willows Power and Recycling Limited, a joint venture between the applicants. DEFRA concluded on 18 January 2012 that the proposal met the Government’s criteria for the award of PFI credits and, as a result, has confirmed the award of £91m waste infrastructure credits. Mr Hollister, the BC’s waste witness accepted, when questioned, that the facility was not only a pivotal part of the contract but a key part in the delivery of the overall waste management strategy of NCC. This was a matter he put particular weight on in his support of the Shrewsbury plant which was also brought forward under a PFI contract [C87, para 3.4]. There have been legal challenges from KLWIN to the Contract and from the BC to the award of the PFI credits. However, the Courts dismissed both challenges.
35. After examination by NCC and numerous statutory consultees and following a recommendation for approval by planning officers to the Planning Regulatory Committee, on 29 June 2012 NCC resolved to grant planning permission for the facility subject to conditions (and the withdrawal of the SoS’s Article 25 direction). NCC and the applicants are in broad agreement on the issues identified by the SoS and the Inspector. Both parties contend that planning permission should be granted. The extent of these parties’ agreement on the issues is set out in a statement of common ground between NCC and the applicants [CD/X2]. The support of the NCC, as the waste planning authority (WPA), should weigh heavily in favour of the development.
36. Earlier questions raised by the BC about the ability of NCC fairly to determine the application have not been pursued. NCC has been careful throughout the process to ensure that its role as WPA was kept separate from its role as Waste Disposal Authority (WDA) and that the procurement of the contract was dealt with independently of the planning process.
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37. The SoS identified five principal matters on which he wishes to be informed, set out above, together with those matters which he considered relevant. All of these were endorsed by the current Inspector.
38. The application site and its surroundings are unusually well suited to the development proposed and it is rare to find a site so well suited to an EfW proposal. The site is located in an industrial estate lying within the settlement boundary of King’s Lynn and in an area that is identified in the development plan as suitable for development. The area is already characterised by major industrial and infrastructure uses operating from large-scale buildings and plant, which include a series of chimneys and stacks. Further permissions for similar uses and buildings have recently been granted. The site enjoys unrivalled opportunities to deliver CHP. Only the Severnside EFW has a similar level of CHP potential. The application site is well served by the existing local and strategic road network, is generally remote from potentially sensitive receptors (including dwellings) and important cultural heritage assets and is of no ecological importance in itself. Whilst some concerns have been expressed (principally by NWT) about the proposal’s impact on the Roydon Common (part of the Roydon Common and Dersingham Bog Special Area of Conservation (SAC)), there is no objection from the EA, Natural England (NE), NCC (having taken advice from specialist consultants) or the BC. All are satisfied that either there would be no likely significant effect on the SAC or that there would be no adverse impact on its integrity.
National waste, energy and climate change policies
39. Although there is no reference to national energy and climate change policies in the SoS’s call in letter, these policies are of key relevance to the determination of this application. The facility would not simply treat waste but would also generate energy, a significant proportion of which would be renewable. Consequently, national waste, energy and climate change policies are all highly relevant.
40. The dual role played by facilities of the type proposed is acknowledged in national policy. National Policy Statement (NPS) EN-1 states that the principal purpose of the combustion of waste is to reduce waste going to landfill and to recover energy from that waste as electricity or heat [CD/U3, para 3.4.3] and EN-3 [CD/U4, para 2.5.2]. The Government Review of Waste Policy in England 2011 (WPR2011) makes plain that waste management policy falls within the wider energy policy context [CD/U23, para 33 and also CD/U24 para 18]. WS2007 also emphasises that recovering energy from waste which cannot be sensibly reused or recycled is an essential component of a well-balanced energy policy and underlines the importance of maximising energy recovery from the portion of waste which cannot be recycled [CD/U24, p76]. The SoS and Inspectors have repeatedly confirmed the relevance of all these strands of policy and have also confirmed that, in addition to an EfW plant’s role as a waste management facility, weight should also be attached to its role both as a generator of energy, thereby meeting the Government’s policy for a secure, affordable and diverse energy supply, and as a generator of renewable energy, thereby contributing to combatting climate change.
Waste
41. The Government recognises that to achieve its key waste planning objectives set out in PPS10 a step change in the way waste is handled is required which necessitates significant new investment in waste management facilities [CD/U5, para 1]. Those key waste planning objectives include: to meet and exceed the www.planningportal.gov.uk/planninginspectorate Page 9 Report APP/X2600/V/12/2183389
diversion targets in the Landfill Directive (the key driver of national waste policy) for biodegradable municipal waste (BMW) in 2010, 2013 and 2020 and to increase diversion from landfill of non-municipal waste and secure better integration of treatment for municipal and non-municipal waste; to secure the necessary investment in infrastructure needed to divert waste from landfill and for the management of waste; and to get the most environmental benefit from that investment, through increased recycling of resources and recovery of energy from residual waste using a mix of technologies [CD/U24, para 23]. The Government will ensure that the market demands these new waste management facilities by, inter alia, increasing Landfill Tax. (This is scheduled to rise by £8 in April 2014 to £80 per tonne and although no other rises are scheduled it was stated in evidence that it was likely that it would continue to rise at least by the cost of inflation.)
42. WPR2011, WS2007, PPS10, waste local plans and other relevant DPDs, form part of the Waste Management Plan for England, which will be replaced by a consolidated National Waste Management Plan in due course. WPR2011 announced the Government’s objective for a zero waste economy in which material resources are re-used, recycled or recovered wherever possible, and only disposed of as the option of very last resort. Zero waste does not mean that no waste is produced. Rather it means that only the minimal amount of waste possible is sent to landfill, such that it is truly a last resort. The draft Waste Management Plan for England [CD/U29] continues the drive towards zero waste, through applying the waste hierarchy, specifically including EfW. Whilst DEFRA has no further plans to invest in bringing forward new residual waste treatment facilities, the proposal is already in the pipeline. In addition, there is a continued impetus for treating waste in accordance with the hierarchy [C95 & 96]. Government policy does not distinguish between MSW and Commercial and Industrial waste (C&I) in this regard: it is a key objective of WS2007 to secure the better integration of treatment of both [CD/U24, p11]. Therefore, Landfill Tax does not discriminate between the two and neither does the WPR2011 when it states that sending any waste to landfill which could have been recovered is ‘clearly wrong’ [CD/U23, para 240]. The WPR2011 states that there is ‘clearly a gap’ between the potential for energy recovery from waste and delivery of the required capacity which results in valuable resources going to landfill [CD/U23, para 219].
43. At present Norfolk consigns large quantities of waste to landfill. In 2011/2012 some 433kt of waste was landfilled in Norfolk [CD/G18, p23]. It was accepted by the BC during the questioning of their waste witness that this was a significant proportion of the arisings in the County. Of this 206kt or 53 per cent of the County’s MSW was sent to landfill (meaning 227kt of C&I was landfilled) [CD/G18, p26]. This compares to a national landfill rate for MSW of 37.4 per cent [CD/U27, p3]. These quantities are anything but ‘small’ [CD/24, p9 aim iii)] and represent a manifest failure to treat landfill as the home of last resort [CD/U23, p 69]. This is, in the words of the WPR2011, “clearly wrong” and there is an urgent need to treat that waste higher up the waste hierarchy. Currently there is very little residual waste recovery capacity in Norfolk so that the County is entirely dependent on landfilling for the management of its residual waste. Bearing in mind the lengthy lead times to establish such facilities, there is an obvious and urgent need for the recovery capacity that would be provided by the proposal. If this application is rejected, the landfilling of very large quantities of waste would in all probability continue, entirely contrary to the waste hierarchy, or possibly be transported for treatment out of County which would plainly be less sustainable than treating such waste at the
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facility. Mr Hollister for the BC accepted that the consequences of delaying the provision of recovery capacity in the County would be to prolong the WDA’s dependence on landfill [K14, para 2.4.3]. Such a result would be wholly contrary to national waste policy and in particular the waste hierarchy.
44. He also floated the idea of exporting waste to Europe – as an interim measure only – in the event that planning permission is refused. This was not referred to in his written evidence and was based on paragraphs 53 and 55 of DEFRA’s Guide to the Debate [CD/U32]. However, it was clear that the issue had not been investigated properly. Only Solid Recovered Fuel (SRF) and Refuse Derived Fuel (RDF) may be exported for recovery and in questions, Mr Hollister said he was not aware of any facilities in Norfolk which could provide the required treatment prior to export. Dr Campbell for the BC subsequently stated that the FCC site at Costessey now has planning permission for RDF as well as for a Materials Recycling Facility (MRF). However, details of this permission were not submitted; and his description of it having a combined capacity of 219ktpa was unclear. Subsequently it emerged that the facility makes RDF from residual C&I waste output from the MRF, which does not produce such quantities. Further, Mr Hollister was candid that no investigation of either shipping costs or gate fees had been carried out. Whilst he thought there was capacity in Amsterdam, this was only from looking on the Internet. There was no proper analysis of whether such capacity existed. Moreover, the Guide to the Debate is hardly encouraging of the export of waste. It provides: “whilst such exports are permissible, the energy recovered from the waste does not contribute to UK renewable energy targets and is effectively a lost resource to the UK.” In the circumstances, we submit that no weight should be given to the wholly unsubstantiated and uncosted potential export of waste.
Classification of the proposal as a recovery facility
45. The rWFD sets out a calculation – the R1 test – by which it can be determined whether or not a municipal waste incinerator should be classified as a recovery facility [CD/L6, Annex II]. The distinction between a recovery and disposal operation depends on the efficiency of the plant in converting the waste into electrical and/ or heat energy. RPS carried out a R1 calculation, submitted with the application, which demonstrated that it would exceed the 0.65 required threshold in electricity only mode [CD/PA11, Part B, App2, p2-2]. Both NCC and Mr Hollister for the BC accepted, when questioned, that the facility is likely to pass the R1 test and that the application should be determined on the basis that it is a recovery facility.
46. However, in both the Eunomia Scoping Report [CD/R8, para2.2] and KLWIN’s statement of case, at para 2.2.1, it is asserted that the facility, operating in electricity-only mode, would not meet the R1 threshold. The EA decision document confirms that, although no application had been made for certification as a recovery plant, the facility is designed to operate at the top end of the efficiency range [CD/E2, pp20-22]. Nonetheless, in light of KLWIN’s position, the applicants’ witness, Mr Aumônier, undertook a further R1 calculation. He did it on a conservative basis, again in electricity-only mode, and used the same design parameters as Eunomia in its scoping report. He demonstrated the R1 test was still met adopting Euonmia’s design parameters. Moreover, operating in CHP mode the efficiency of the facility only increases. KLWIN did not suggest that the facility would not meet the R1 threshold in CHP mode. As a result of Mr Aumônier’s calculation, Dr Hogg (for KLWIN) conceded that the Eunomia Scoping Report had
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been in error and he put forward no evidence to support the assertion that the Willows in electricity mode would not meet the R1 threshold. The point was, therefore, effectively abandoned by KLWIN.
47. Dr Hogg’s objection at the inquiry shifted to the assertion that, since no certification from the EA had been obtained of the project’s recovery status, the proposal must be treated as a disposal facility. His argument was based on the European Commission Guidelines on the Interpretation of the R1 Energy Efficiency Formula and the fact that guidelines state that for new plants the R1 status shall initially be granted on the basis of the planning or construction specifications [CD/R1, p18]. However, it can only be a provisional grant based on the plant design because the final certificate must always be based on a year’s worth of operational data. It follows that all that can ever be granted prior to the completion of a year of operation is a provisional certificate. A decision-maker therefore will always have to consider the likelihood of a proposed plant meeting the R1 threshold whether or not there is a provisional certificate. That reflects the long held approach to determining these types of applications where Inspectors and the SoS have relied on Mr Aumônier’s evidence and other experts like him (for example at Cornwall, Shrewsbury and Severnside).
48. There has to date only been a single appeal where the applicant had at that time a provisional certificate: Shrewsbury. However, it made no difference to the analysis. The Inspector understood it was only a provisional certificate, not a guarantee that the facility will operate at a high enough level of efficiency to pass the R1 test, and, therefore, that he had to apply his mind to the likelihood of the facility meeting the R1 criterion [CD/A4, para 104]. In other words he continued to apply the traditional approach even where there was a provisional certificate. We note there that the presence of a provisional certificate did not stop the objectors from challenging the plant’s efficiency in any event.
49. However, the applicants’ view is that Dr Hogg was not correct to urge the Inspector and the SoS to treat the facility as a disposal plant, even were they to consider that it would be likely to pass the R1 test. In so doing, Dr Hogg only served to emphasise the fact that his objection on R1 lacked substance, and it was the basis for two of his four of his other objections [W500, para 44]. The evidence before the inquiry is clear that the facility should be treated as a recovery facility.
50. DEFRA’s Guide to the Debate was only published at the end of February 2013. It says that it is important for operators to strive towards demonstrating that the proposal would be classified as recovery under the rWFD and encourages early applications to the EA [CD/U32, para 52]. Because of this new advice, which for the first time recommends such early applications for R1 certification, the applicants considered it appropriate to submit such an application. The EA has dealt with the application expeditiously and has granted a provisional R1 certificate for the Willows [C77]. A delay to the submission of the document to the inquiry was caused by the checking of the format of the letter. However, this information completely removes any objection KLWIN had on this matter.
Government support for EfW
51. Although the Government has made it clear that its views are technology neutral [CD/U24 para 27 (subject to anaerobic digestion (AD) for food waste); U23. para 22; CD/U3 para 3.1.2 and CD/U4, para 2.5.11] and it is for the market to bring
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forward development [CD/U3, paras 2.2.4 and 3.1.2], both WS2007 and the Government Review of Waste Policy (GRWP) provide explicit policy support for the provision of EfW facilities in the form of thermal treatment and recognise the environmental and economic benefits of recovering energy from residual waste [CD/U3, paras 207, 212, 214, 234 and 239]. This is continued in the draft Waste Management Plan for England [CD/U29]. 18 out of the 27 PFI projects around the country that incorporate residual waste treatment rely either solely or jointly on the use of EfW [C80, para 4.5.33] and there is considerable scope for additional EfW capacity to be provided through increased diversion of waste from landfill. Not only would this assist in weaning the country and Norfolk from the unsustainable practice of landfilling but it would contribute to meeting national energy policies and renewable energy targets and help address climate change which the Government regards as the nation’s greatest challenge.
52. The scale of waste-derived renewable energy from thermal combustion envisaged in the GRWP is vast: it envisages a threefold increase by 2020 even with the expected improvements in re-use and recycling [CD/U23,para 214-5]. There is now a gap between the potential of energy recovery from waste and delivery of recovery capacity [CD/U23, para 219]. The UK Renewable Energy Road Map recognises that the combustion of the biomass content of waste is one of four major contributors to the increased deployment of biomass electricity that it seeks by 2020 [CD/U39, para 3.123]. As both PPS10 and WS2007 recognise, the planning system is pivotal to the adequate and timely provision of new waste management facilities [for example, CD/U5, para 1 and CD/U3, para 2.2.25]. If that is ever to be delivered, having regard to the lead time for these types of facilities, planning permissions need to be granted now. The UK Renewable Energy Roadmap explains that the statement of the Government’s commitment to EfW in the GRWP was designed to address directly the difficulties that the industry has experienced in gaining consents [CD/U39, paras 3.142 146].
53. The Government are supportive of EfW as it reaches beyond waste management and addresses energy and climate change: “The benefits of recovery include preventing some of the negative greenhouse gas impacts of waste in landfill. Preventing these emissions offers a considerable climate change benefit, with the energy generated from the biodegradable fraction of this waste also offsetting fossil fuel power generation, and contributing towards our renewable energy targets. Even energy from the non-biodegradable component, whilst suffering from the negative climate impacts of other fossil fuels, has additional advantages in terms of providing comparative fuel security, provided it can be recovered efficiently.” [CD/U23, para 208]
54. The energy produced would be dependable in that it provides security of supply by utilising home-grown residual waste thereby reducing reliance on insecure energy imports; EfW is a diversified energy source in accordance with Government policy to have a wide range of different energy generators and move away from the concentration on coal, gas and nuclear energy; EfW plants represent a dispersal of generating stations, producing distributed energy, and lessens the dependence on a small number of very large centralised plants; and the energy produced in EfW plants is not intermittent in nature and subject to the vagaries of the weather like most other renewable energy but is also dispatchable. It is energy that meets what we would describe as the four ‘Ds’: it is dependable, diversified, distributed and
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dispatchable. Mr Hollister, the BC’s waste witness, accepted, when questioned, that energy produced by the facility would have these qualities.
Energy and climate change policies
55. Energy policy is central to tackling climate change and the two need to be approached in tandem. The Climate Change Act established a legally binding target to reduce the UK’s greenhouse gas emissions by at least 80 per cent by 2050 whilst the UK is committed to a target of producing 15 per cent of its total energy from renewable sources by 2020 [CD/U3, para 214-215] and the message from the Government is one of urgency: the Energy White Paper seeks to provide a positive policy framework to facilitate and support investment in renewable energy [CD/U37, para 5.3.67]; the aim of UK Renewable Energy Strategy is radically to increase the use of renewable energy [CD/U36, summary]; the UK Low Carbon Transition Plan records that the scale of change we need in our energy system is unparalleled [CD/U40, p36]; in EN-1 the Government expresses its commitment to increase dramatically the amount of renewable energy generation, increasingly from the combustion of waste [CD/U3, para 3.3.10] (no limits or targets are set on the provision of such infrastructure) [ibid, para 3.3.24]; and the NPPF seeks a radical reduction in greenhouse gas emissions.
56. The NPPF describes renewable energy infrastructure as central to the economic, social and environmental dimensions of sustainable development [CD/U1, para 93]. The NPPF underlines the Government’s commitment to restructure the economy to meet the twin challenges of global competition and a low carbon future [ibid, para 18] and seeks to support the delivery of renewable and low carbon energy by, inter alia, requiring local planning authorities to design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily [ibid, para 97] and by directing them not to require applicants for energy development to demonstrate need [ibid, para 98]. The NPPF establishes a presumption in favour of granting permission for the generation of renewable and low carbon energy where the impacts of development are (or can be made) acceptable [ibid, para 98], as accepted by Mr Hollister, when questioned. He further confirmed that neither he nor the BC challenged the Waste and Resources Assessment Tool for the Environment (WRATE) assessment which demonstrates the significant carbon savings the facility would achieve in comparison with landfill (the comparison with landfill is entirely appropriate in circumstances where there is no firm proposal for an alternative to landfill aside from the facility, as agreed by Mr Burton for KLWIN, when questioned).
57. In short, the exhortation to industry is to provide as much renewable energy capacity as swiftly as possible. Government policy requires that significant weight should be given to a proposal’s provision of renewable energy. Mr Hollister for the BC agreed, when questioned, that the proposal would comprise renewable and low carbon energy and would therefore accord with the general thrust of national policy in relation to energy and climate change. Mr Burton too accepted that the facility would produce renewable energy.
58. All parties to this inquiry are agreed that the facility would produce renewable energy from the biomass fraction of the waste. The applicants, NCC and the BC are agreed that it would also produce low carbon energy. Only KLWIN disputes this. We analyse this dispute below and conclude that as a matter of policy energy from
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waste should be treated as low carbon and, accordingly, the applicants, NCC and the BC are correct to regard the Willows as low carbon.
CHP
59. The climate change benefits of the proposal would increase, should its significant Combined Heat and Power (CHP) potential be realised. The BC recognise that “CHP is nothing but a benefit”, as stated in questions to Mr Aumônier, but, as he agreed, one needs to look at the likelihood and magnitude of CHP provision to judge the weight to be afforded to its potential. Therefore this issue goes only to how much weight in favour of the grant of planning permission should be afforded to the fact that the applicants have ensured, at no little expense [C10, para 7.8] that the facility would be CHP enabled such that it could take advantage of commercial opportunities to export heat in the form of steam as well as generating and exporting electricity.
60. National policy states the importance the Government attaches to CHP [CD/U4, paras 2.5.26-27] in that particular attention should be paid to the siting of facilities to maximise opportunities for CHP [CD/U24, para 28 and CD/U1, para 97] and that substantial additional positive weight should be given to applications incorporating CHP [CD/U3, para 4.6.8]. EN-1 recognises the need for CHP plants to be located close to industrial or domestic customers with heat demands [ibid, para 4.6.5]. The latest DEFRA guidance states that it is essential that customers for heat are relatively close by [CD/U32, para 136]. Local policy is no different. Both the MWCS and WSSA place significant emphasis upon the encouragement and delivery of CHP [for example CD/D1, policies CS8 and CS13].
61. Both policy [CD/U23, para 237] and previous appeal decisions [CD/A5, paras 37- 38; CD/A4, para 138; CD/A11, para 11.48 and CD/A9, para 78] further recognise that it cannot be expected that contracts for the supply of heat and power will have been entered into before planning permission is obtained. The reasons are obvious: potential customers are unlikely to spend the time negotiating heads of terms in advance of the relevant facility even gaining consent to be built. Examples were given of sites in Great Blakeham, Suffolk [C80, para 88] and, when questioning Mr Aumônier, SELCHP in Southwark, of plants which only subsequently might provide CHP. For this reason, previous Inspectors have explicitly stated that no adverse inference should be drawn where existing industry near to a proposed EfW has not indicated an interest in taking heat by the time of any planning inquiry into the EfW facility, for example, CD/A4, para 138.
62. This application site enjoys unrivalled opportunities to deliver CHP. Not only does the facility benefit from a very short and easy connection to the grid for the export of electricity (a matter not disputed by any party) and an offer of a connection [C11, app 14], the site immediately adjoins Palm Paper, the largest heat user within Norfolk with a stated intention to obtain its energy independently of the National Grid. Further, Palm Paper is a paper mill which is a form of industry specifically identified by EN-1 as a likely potential customer for CHP [CD/U3, para 4.6.5]. Furthermore, the application is in close proximity to the proposed major new growth and regeneration areas of King’s Lynn which have the potential to benefit from a district heating system and is adjacent to Centrica B. In short, the application site could hardly be bettered in Norfolk in terms of CHP potential. No- one has suggested a better site for CHP potential.
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63. Third parties and the BC contend that Palm Paper would not take heat from the proposed development. However, evidence submitted has only served to highlight the fact that Dr Wolfgang Palm, the Chief Executive of Palm Paper, has steadfastly refused to confirm that Palm Paper would definitely not take heat from the development. Dr Palm’s very carefully crafted letters have served to keep his options open whilst avoiding becoming embroiled in local controversy for the sake of an opportunity that is currently wholly contingent on the applicants gaining planning permission. In the circumstances, it is readily understandable that Palm Paper wishes to “keep out of the difficult discussions and take on a strictly neutral role” [CD/Y6]. However, Dr Palm has not dismissed the option of taking the heat generated by the facility. Indeed, he identified four options open to Palm Paper in April 2012: to maintain the status quo, to acquire steam and/ or power from the Willows or Centrica B, should they be built, or to develop its own CHP plant [ibid]. Palm Paper intends to select the “most cost efficient option”[ibid]. He has not ruled out any of these options.
64. Palm Paper has now decided to apply for planning permission for its own CHP plant. It is significant that, even after this decision, Dr Palm still refuses to rule out taking heat from the Willows despite being encouraged to do so [CD/Y7]. As both Mr Boldon and Mr Aumônier explained, Palm Paper’s planning application is a shrewd commercial move. If the proposal is permitted, Palm Paper will be able to negotiate with all four options in place.
65. It was suggested in questions asked of Mr Aumônier that the facility could meet only 32 per cent of Palm Paper’s heat demand and that this undermined its CHP potential, with reference to K9, as responded to in C76 and C15. However, the question was put on a flawed basis for, in fact, the facility would be able to provide somewhere between 50 to 90% of Palm Paper’s heat requirements (depending on what the heat requirements actually are). The calculation of the 90% figure is set out in an inquiry note [C19]. Further, even if the question had been put on the basis of the correct facts, the implication that the provision of a third of Palm Paper’s heat requirements undermines the CHP potential of the proposed development is unfounded. First, Palm Paper taking the entirety of the heat off- take would ensure that the facility would operate as efficiently as possible. Secondly and in any event, the fact that Palm Paper would require another source of energy in no way means that taking all the heat from the facility cannot be part of the most cost efficient solution for Palm Paper. It may be that a supply from both this facility and Centrica B [CD/A15, para 6.2] would be an ideal solution so that a supply of heat could be maintained during any shut down of either plant [expressed as a benefit in CD/U32, para 136]. In responses by Mr Aumônier to questions, he said that there could be no better juxtaposition between heat supplier and user.
66. There are other significant potential opportunities to supply heat beyond Palm Paper, not least, the nearby 23 ha. proposed employment allocation EMP2 in the King’s Lynn and West Norfolk Site Allocations DPD, new housing development proposed on land South East of King’s Lynn and the extensive Nar Ouse Regeneration Area (NORA). The BC accepts that there is potential for CHP utilisation on EMP2, which is only 500m from the facility, (subject to the nature and heat-use requirements of the future occupiers) [K33, para 4.4.2]. There is also a prospective allocation for significant new housing south east of King’s Lynn (1,600 dwellings in the plan period and 6,000 dwellings in the longer term). This lies approximately 2.5 km to the east of the Willows [C70, para 105]. www.planningportal.gov.uk/planninginspectorate Page 16 Report APP/X2600/V/12/2183389
67. Furthermore, around 1.5kms from the application site, lie the multiple allocations that make up the NORA masterplan, which comprise a further significant opportunity for CHP use. All the BC say against this potential is that it is north of the A47. However, as Mr Aûmonier stated, there are obvious crossing points along the road and there is nothing to indicate that a supply of heat could not be routed to NORA.
68. Dr Campbell’s suggestion for the BC that heat has been offered and rejected by the partners promoting NORA [K33, para 4.4.5] is not supported by any evidence. Any such offer was not made by the applicants. Furthermore it was likely to have been based on the Enviros Report of 2008 [K9] which was based on an assumed capacity of 150ktpa and so a much lower output of energy [C76]. Whilst some infrastructure has already been provided, that would not prevent the installation of a District Heating system today, especially given that the economics of doing so are highly dynamic and driven in large part by the seemingly ever increasing cost of energy. As the Government recognises, with the escalating costs of energy the likelihood of CHP take up has only increased [CD/U34, p14].
69. These are significant opportunities for CHP (others are set out in C70, pp48-67) and must of themselves weigh heavily in favour of the grant of planning permission for the facility. Mr Aumônier, who has been involved in numerous EfW projects, stated that he could not recall a project with stronger CHP potential (apart from Lostock which was specifically designed to serve a Soda Ash plant). Mr Miles agreed (with the sole exception of Severnside which he thought may have similar potential).
Conclusions
70. The proposal positively addresses three global policy aims and the urgent need for infrastructure to achieve them: first, the provision of urgently needed waste management capacity critical for the diversion of Norfolk’s waste from landfill; secondly, providing much needed renewable energy with unrivalled potential exploitation of CHP, thereby increasing energy security and contributing to renewable energy targets; and, thirdly, reducing the carbon dioxide that would otherwise be emitted to generate energy and displacing the harmful methane emissions that arise from landfilling. The conclusion which we invite the SoS to make is that there is a compelling requirement and urgent need to deliver this form of infrastructure now in order to fulfil the Government’s policies on waste, energy and climate change.
The Secretary of State’s issues
The development plan
71. The development plan comprises the MWCS, the CS and the saved policies of the LP. The proposal’s compliance with the development plan is the first matter on which the SoS wished to be informed.
72. Mr Miles provides a detailed analysis of the proposal’s compliance with the development plan in his proof of evidence [C80, pp 97-125]. He concludes, as did the original officer report, [CD/M1, para 7.441] that the application is in accordance with the relevant development plan policies individually and with the development plan as a whole. Mr Palmer for NCC also analyses the proposal’s
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compliance with development plan policies and concludes that there is no conflict [N10, para 18]. The SoCG between NCC and the applicants also records those parties’ agreement that the proposal accords with the relevant development plan policies and the development plan as a whole [CD/X2, para 14].
73. The BC’s evidence has not analysed the proposal’s compliance with the development plan as a whole, despite BC officers providing clear advice as to the relevance of a long list of development plan policies to members of the Development Control Board. The March 2012 officer report (which was after Mr Hollister was instructed and after he had provided advice to officers) listed some 25 policies. However, of those 25 only three (excluding policies from the now-revoked RSS) were relied on in the BC’s resolved reasons for objection: policies DM4 (flood risk) and CS5 (general location of waste management facilities) of the MWCS and policy CS08 of the CS (in so far as it relates to flood risk), as confirmed by Mr Hollister. He now also relies on conflict with policies CS8, CS10 and CS13 of the MWCS in so far as they relate to the management of waste in accordance with the Waste Hierarchy and PPS10 [K12, para 4.10.2]. We note that none of these additional policies were referred to in the BC’s statement of case which was drafted largely by Mr Hollister.
74. We address the policies in relation to flood risk elsewhere (i.e. policy DM4 of the MWCS and policy CS08 of the CS) and policy CS5 when dealing with the proximity principle. The remaining policies relied on by the BC all form part of the MWCS.
75. As Mr Hollister agreed, it is no part of the BC’s case to suggest that the MWCS is out of date. That must be right for it was subject to examination and found to be sound in the context of up to date national waste policy in August 2011 and adopted in September 2011. This proposal is wholly consistent with that strategy as well as according with the specific waste management policies and, in particular, those policies setting out the required residual waste treatment capacity in the County.
76. Turning, then, to the specific policies on which the BC now rely: (i) CS8 (residual waste treatment facilities): Mr Hollister all but agreed when questioned, that the facility complies with this policy. He agreed that there was a clear and pressing need for residual waste treatment capacity (by reference to paragraph 6.38). It follows that the first paragraph is complied with and, as he also agreed, the situation contemplated in the last paragraph does not arise. He said that the proposal complied with point b) of the second paragraph (the other points are alternatives) save insofar as the BC’s objections on flooding and proximity were relevant. Finally, he conceded that the facility complies with the third paragraph. We deal later with the flooding and proximity issues, but the reality is that Mr Hollister did not identify any material conflict with this policy; (ii) CS10 (non-hazardous and hazardous landfill): it is difficult to understand why this policy was referred to, although it contains a reference to moving waste up the waste hierarchy. However, this has nothing to do with residual waste recovery capacity and is not applicable to the application. Mr Hollister appeared to acknowledge as much when questioned; and, (iii) CS13 (climate change and renewable energy generation): when questioned, he agreed that the facility complies with this policy. It would generate renewable energy and comply with the co-locational requirements of the policy. The application therefore deserves to be “welcomed” in accordance
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with the wording of the policy itself. Mr Hollister expressly agreed such ‘welcome’ applied here.
77. Importantly, he confirmed when questioned that insofar as MWCS policies were not cited in either the BC’s reasons for objection or its evidence before the inquiry then it could be assumed that the BC considered the facility to be compliant with them (subject to the need for conditions to which we turn below in some instances). This is highly significant and the SoS is invited particularly to note that the BC does not dispute the project’s compliance with key MWCS policies such as CS3, CS4, CS6, CS14 and CS15.
78. As to KLWIN:
i) As Dr Hogg confirmed when questioned, his assertion that the proposal would not comply with the development plan was based solely on his view that the plant could not be treated as a recovery operation [W500, para 44]. For reasons we have already set out, that point was never valid and, in any event, has now been overtaken by the EA certifying the facility as a recovery operation. It follows that Dr Hogg’s suggested conflict with the development plan has fallen away; ii) Mr Burton identified conflict with only one development plan policy: policy CS13. However, when questioned, he agreed that the proposal complied with the express wording of the policy. His argument was that the policy did not reflect the NPPF’s aims to maximize the delivery of renewable and low carbon energy. However, policy CS13 is precisely about the encouragement of the generation of renewable energy at minerals and waste developments and imposes a minimum standard. Mr Burton suggested a minimum standard is not enough [W-000, para 5.5.7]. However, that misses the point: it is not a ceiling and, further, requires developers to generate renewable electricity and/or capture heat where practicable rather than merely encouraging them to do so. In short, this policy is doing precisely that which the NPPF seeks; and iii) No other witness for KLWIN referred to a development plan policy, and it was not referred to in either their opening or statement of case.
79. Accordingly, the applicants submit that the proposal must enjoy the presumption in favour of permission being granted for development which accords with the development plan set down by section 38(6) of the 2004 Act, the test for which was considered in R v Rochdale MBC ex parte Milne (No.2) [2001] Env. L.R. 22 at 50, in respect of the then S54A.
Planning Policy Statement 10
80. Having set out the broad scheme of national waste policy, we turn to consider the facility’s compliance with PPS10, a matter on which the SoS specifically asked to be informed [CD/X1, para 7]. PPS10 is plainly a very significant material consideration. It is clear on its face that it may supersede policies in the development plan which are inconsistent with it [CD/U5, paras 5 and 23]. Further, PPS10 has been updated to reflect the rWFD. As Mr Hollister agreed, when questioned, one of the reasons for the revision of the document was to increase the use of waste as a resource (eg as a fuel), as was made clear in the Chief Planning Officer Letter [CD/U7]. In the circumstances, compliance with PPS10 is perhaps the best indicator of this proposal’s fit with up to date waste policy (including proximity and waste hierarchy).
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81. In our submission the facility would meet the Government’s overall objectives for waste by using waste as a resource and source of energy and reducing substantially the amount of waste that is being landfilled. This plant alone would treat virtually all the residual MSW in Norfolk for which no residual recovery capacity exists and which, in its absence, will almost certainly continue to be landfilled. It would represent the positive planning required by paragraph 2 by providing sufficient new management facilities of the right type, in the right place and at the right time (more realistically, very belatedly); in other words, the adequate and timely provision of facilities which PPS10 states is the pivotal role of the planning system [CD/U5, para 1]. Mr Hollister agreed, when questioned that it was ‘plain’ that this applies in Norfolk and the need for timely provision here was accute.
82. PPS10 sets out a number of key planning objectives [ibid, para 3] with which the proposal fully accords in that it would: (i) Assist in driving the management of the County’s residual MSW and C&I waste up the waste hierarchy, use waste as a resource and look to disposal as the last option – all of which Mr Hollister agreed. As identified above, Norfolk landfilled some 433kt of waste in 2011/2012. The proposed development would be a recovery facility. There is no alternative recovery capacity in the County (although there being a 20ktpa biomass (wood waste) plant at at Shrubbs Farm, Saxthorpe, Melton Constable), and no proposals in the planning pipeline for the capacity required to recover the County’s residual MSW and a significant proportion of its C&I. (The materiality of the Material Works Ltd (MWL) Contract with the BC is considered below). Therefore this proposal would be the only facility that would deliver the required step change in the management of the Norfolk’s waste within the timeframe envisaged by the MWCS [ibid, para 3, 1st objective]; (ii) Help communities take more responsibility for their own waste and would represent timely provision of waste management facilities to meet the needs of the County. In addition, so far as C&I is concerned, it would also provide an appropriately located facility for the local business community to take responsibility for its own waste [ibid, para 3, 3rd objective]; (iii) Make a significant contribution to implementing the national waste strategy and, more particularly, to meeting the national landfill diversion targets set out in WS2007 [CD/U24, p11] as agreed by Mr Hollister. It follows from the fact that Norfolk has no operational recovery facilities that it failed to meet the 2010 target. The next target is 67% recovery by 2015. Given the lead times for large scale recovery facilities this target will be next to impossible to achieve, but if the facility is granted planning permission by the SoS, there is a real prospect that the required levels of recovery could be achieved within Norfolk by 2020 [ibid, para 3, 3rd planning objective]; (iv) Help secure the recovery of waste without endangering human health (as agreed by Mr Hollister) and without harming the environment (also agreed by Mr Hollister, save for the BC’s arguments in relation to flood risk) and enable waste to be disposed of in one of the nearest appropriate installations (NAI) (there would be no nearer facility and Mr Hollister agreed that the BC accepts EfW as an approporiate technology). The proposal has been the subject of a full environmental impact assessment (EIA) which concludes that there are no significant or unacceptable impacts remaining following the adoption of appropriate mitigation measures. The adequacy of the ES has not been seriously questioned at this inquiry. The EA has already issued an EP
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confirming it is satisfied that the facility is acceptable from a pollution control perspective [CD/E1]. The objective of enabling waste to be disposed of in one of the NAIs has been extended through the Waste Regulations 2011 (WR2011) to the recovery of MSW and co-collected C&I waste (but not for C&I generally). This has not as yet been reflected in PPS10. What is very clear from PPS10 is that the Government’s only concerns with regard to the hierarchy are the under provision of recovery capacity and the over provision of disposal capacity [CD/U5, para 4, last bullet and para 25]. As Mr Hollister agreed when questioned, this part of PPS10 relates to the waste hierarchy and no concern is expressed about over provision of recovery. Indeed, the Inspector relied on precisely this point at Shrewsbury [CD/A4, para 107] in relation to para 25 of PPS10. The vast majority, if not all of MSW and C&I waste arising within Norfolk that is not recycled is currently landfilled. A small amount of MSW is currently sent for recovery outside the East of England region. Given the absence of suitable recovery facilities to accommodate this waste, and the location of the proposal relative to the source of the waste arisings, it will therefore be one of the NAIs for the management of waste within the intended catchment and, in fact, until any other facility is operational, the NAI [CD/U5, para 3, 4th objective]; (v) Clearly reflect the concerns and interests of communities, the needs of waste collection authorities, waste disposal authorities and business, and encourage competitiveness by the provision of much needed waste treatment capacity (as well as the generation of renewable energy) within Norfolk, not least by enabling NCC to meet its recovery and landfill diversion targets [ibid, para 3, 5th objective] and - to the extent that the facility takes C&I waste - by providing local business with a cost effective route for waste management that avoids the cost of landfill tax. Mr Hollister accepted during questioning that Mr Miles’ evidence on the need for competition and that the provision of facilities such as this one is a good thing for local businesses. We note in this regard that the BC did not carry out any assessment of demand by C&I producers for EfW and did not dispute Mr Boldon’s evidence on this matter. He had stated that following an investigation of the market, the applicants were confident of being able to attract C&I waste. (vi) Supports sustainable waste management through the design and layout of the development [ibid, para 3, 7th objective]. There has been no real criticism of the design and layout of the proposal nor any significant landscape and visual impact objections. The BC dropped its initial objection on this ground. Obviously, the BC did not consider that it could sustain a landscape objection. In so far as the technical design of the facility is concerned, the EA described the efficiency of the plant as towards the top end of the best available techniques (BAT) range for electricity generation and noted that it would recover heat as far as practicable and was therefore compliant with Article 6(6) of the rWFD and should be regarded as BAT for energy efficiency [CD/E2, paras 4.3.7(iii) and (iv)].
83. PPS10 also provides guidance on the location of waste management developments. Paragraph 20 requires waste planning authorities, in identifying suitable sites to consider, inter alia, a broad range of locations including industrial sites and look for opportunities to co-locate facilities together and with complementary activities. As already indicated, the application site forms part of an industral estate within the settlement boundary of King’s Lynn and in an area identified in the development
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plan as suitable for development. In terms of co-location the application site could hardly be bettered. It lies adjacent to Norfolk’s largest heat demand, as well as next to a HWRC.
84. Applications for waste management facilities on unallocated sites should be treated favourably where they are consistent with, first, the policies within PPS10, including the criteria contained in paragraph 21 (by which waste planning authorities should identify suitable sites for waste management facilities), and, secondly, the waste planning authority’s core strategy [CD/U5, para 24]. Mr Miles tests the proposal against all these factors and concludes that it is in conformity with PPS10 [C80, para 4.2] and the locational criteria within it [ibid, paras 4.2.34-4.2.50] and the MWCS [ibid, para 5.3).
85. The application site is, as yet, unallocated pending the adoption of the WSSA but, as noted by the examining Inspector, the application site is “heavily trailed” within the MWCS. It is referred to on three separate occasions within the MWCS [CD/D1, paras 3.18, 3.29 and 6.33]. It follows that the Inspector at the examination of the MWCS was fully aware that the site was being promoted as the proposed PFI project site for a large scale treatment facility. Indeed, as we indicate below, one of those references was included as a minor modification to the plan which inserted an explicit reference to such development on the application site with a capacity of 275ktpa [CD/G9, paras 3.18, 3.29 and 6.23]. Whilst the Inspector expressed no view on the merits of the site, he could hardly have expressly endorsed this modification had he considered the site or the scale of development suggested for it to be intrinsically unsuitable.
86. The reasons why the application site and its surroundings are unusually well suited to the development proposed are set out above and that analysis leads to the conclusion that the PPS10 locational criteria are fully met. It has demonstrated that the proposal:
1) conforms with and promotes the aims behind the PPS10 key planning objectives;
2) having regard to the Annex E locational criteria, there are no unacceptable physical and environmental constraints affecting the application site;
3) the only potential cumulative effect of previous waste management operations that could arise relates to the co-location of the proposal with the King’s Lynn HWRC. This has been fully assessed within the ES;
4) There are no highway safety or capacity issues. There is a short and suitable route connecting the site to the Strategic Highway Network. The accompanying transport assessment demonstrates that the capacity of the surrounding highway network is adequate to accommodate the maximum volumes of traffic forecast to be generated both during the construction and operational phases. This includes assessment of the combined effects when taken together with other development that may occur within the vicinity. This has been confirmed in consultation responses from the County Highway Authority and the Highways Agency; and,
5) Whilst the site does not comprise previously developed land, it lies within an area previously permitted for industrial development and that is identified within the LP as suitable for development, subject only to that development being in harmony with the character of its surroundings. The principle of waste related
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development on the site is accepted by all parties (and was agreed by Mr Hollister during questioning).
87. Given the demonstrated suitability of the site in terms of the criteria in PPS10, neither the BC nor KLWIN have objected in respect of issues as diverse as design, landscape and visual effects, residential amenity, heritage assets and highways safety and capacity.
88. The applicants contend that the site is particularly suitable in land use planning terms for accommodating a strategic waste management use of the nature and scale proposed. Mr Boldon said that the site was one of the best he had seen in his long career in waste management. As did Mr Miles and Mr Aumônier. Mr Goodrum, landscape witness, said it was unique in his experience for there not to be a landscape objection to a proposal of this nature. This conclusion is supported by NCC [CD/X2, paragraph 14]. Indeed, it is hard to conceive of a better site in Norfolk and it is no surprise that the site was selected by NCC as the reference site in the procurement process for the Contract and has been proposed for allocation for thermal treatment in all four versions of the draft WSSA. The Inspector’s Report on the examination into the WSSA endorses the allocation of the site [CD/G35].
89. The facility would deliver the PPS10 Key Planning Objectives and is an excellent fit with the rest of the policy guidance in the PPS including the locational criteria. Three of the BC’s grounds of objection are stated to result in conflict with PPS10, namely; flood risk, waste miles and disincentive to recycle. We shall seek to refute these objections in detail subsequently, but submit that none is valid.
90. In our submission, the proposal’s compliance with PPS10 should be accorded significant weight. The proposal would help Norfolk comply with its legal duty to apply the waste hierarchy as a priority order and to curtail the wholly unsustainable practice of landfilling by using waste as a resource. Furthermore, it complies with paragraph 24 of the PPS. This gives a further presumption in favour of the grant of planning permission.
NPPF
91. The facility’s conformity with the policies contained in the NPPF was another matter that the SoS asked to be informed upon. The NPPF has replaced the majority of Planning Policy Statements as the national planning policy guidance and as such it should be afforded significant weight. It does not, however, deal expressly with waste management: that is the province of PPS10 which has already been addressed.
92. The principal objective of the NPPF is to promote sustainable development. The NPPF identifies three dimensions of sustainable development: economic, social and environmental [CD/U1, para 7]. The proposal contributes positively to all three dimensions. At the heart of the NPPF is a presumption in favour of sustainable development, described as a “golden thread running through…decision making” [ibid, paras 14 and 197]. The proposed development qualifies under this definition of sustainable development and therefore enjoys the presumption in favour of permission being granted. Paragraph 14 is explicit that development proposals which accord with the development plan should be approved, as already stated, is the situation that applies here. The proposed development should therefore be permitted without further delay. www.planningportal.gov.uk/planninginspectorate Page 23 Report APP/X2600/V/12/2183389
93. The policies of the MWCS encourage and require the development of residual waste treatment facilities in order to maximise the renewable energy that can be generated from this source and provide much needed and sustainable waste management infrastructure of the right type. They also seek to ensure that development is located in accordance with the principles of sustainable development, favouring sites that are well related to the major urban areas and are on land already identified or suitable for the accommodation of such facilities. It further adopts policies designed to ensure appropriate protection of the environment and of the amenities and health of local communities. There has been no serious suggestion that the adopted MWCS is not in general conformity with the NPPF.
94. Weight must also now be given to emerging plans [ibid, para 216], such as the submission version of the WSSA, according to the stage of preparation of the Plan, the extent of any unresolved objections and the degree of consistency with the NPPF. The allocation of the application site within the submission version of the Plan for the development proposed is therefore a relevant consideration to which weight should be given. We deal in detail below with the WSSA in the context of prematurity and in doing so note that the application site has been allocated in all four iterations of the plan, notwithstanding objections. It is highly unlikely that WSSA EIP will result in its deletion.
95. The NPPF sets out a number core planning principles [ibid, para 17] which include: (i) Ensuring that planning is genuinely plan-led; (ii) Proactively driving and supporting sustainable economic development, including the infrastructure that the country needs. Every effort should be made objectively to identify and then meet the needs of an area; (iii) Supporting the transition to a low carbon future by, inter alia, encouraging the development of renewable and low carbon energy; (iv) Contributing towards conserving and enhancing the natural environment and reducing pollution; and (v) Actively managing patterns of growth.
96. The proposal would contribute directly towards the achievement of these core planning principles in that it would: (i) Accord fully with the Development Plan; (ii) Constitute sustainable economic development in its own right as well as having the potential to contribute towards enhancing sustainability for other businesses through the generation of renewable/ low carbon energy and its potential to serve the heat requirements of the Palm Paper and/ or the growth and regeneration areas of King’s Lynn through the development of its CHP potential. Further, the MWCS identifies objectively the urgent waste management needs of the county which can be met in large part through the delivery of the proposed development; (iii) Can be developed without unacceptable impact on the environment or on local communities; (iv) Will serve to enhance the environment and reduce pollution through its significant contribution towards the diversion of residual waste from landfill; and (v) Supports sustainable patterns of growth, with the proposal being located in accordance with the locational policies of both the adopted MWCS and the saved policies of the Local Plan. In this regard, the comparative WRATE assessment and the Alternative Sites Assessment (ASA) together demonstrate www.planningportal.gov.uk/planninginspectorate Page 24 Report APP/X2600/V/12/2183389
that the proposed location represents one of, if not the most, sustainable location for a facility of this type and scale within the County.
97. The NPPF encourages LPAs to approach decision-taking in a positive way to foster the delivery of sustainable development [ibid, para 186]. LPAs should look for solutions rather than problems. Decision-takers should look to approve sustainable development where possible and LPAs should work proactively with applicants to secure developments that improve economic, social and environmental conditions in their area [ibid, para 187]. Infrastructure to deliver renewable energy is central to achieving this.
98. Central to the concept of sustainable development is the transition to a low carbon economy and the maximisation of renewable energy developments [ibid, para 97- 98]. Paragraph 98 of the NPPF requires planning permission for such development to be granted where its impacts are or can be made acceptable. The facility would represent sustainable development that accords with the Development Plan. It can be delivered without unacceptable harm to the environment or to local communities. It therefore accords fully with the NPPF and benefits from both the general presumption in favour of sustainable development as well as the specific presumption in favour of the generation of renewable and low carbon energy. The policies in the NPPF are material considerations [ibid, para 212] and the proposed development’s compliance with them should be accorded significant weight.
99. Paragraph 119 of the NPPF provides where development requiring Appropriate Assessment (AA) is being considered, planned or determined, the presumption in favour of sustainable development does not apply. Karen Colebourn, the ecology witness, explains why the proposal would not have a likely significant effect on ecological receptors of interest and as such an AA is not required. Accordingly the situation does not, we submit, arise here.
100. However, NCC did carry out an AA, adopting a highly precautionary approach. Its conclusions were entirely consistent with those of the applicants, NE and the EA; namely, that the proposal will not adversely affect the integrity of the relevant European sites. Even if NCC were correct to carry out the AA, in circumstances where the results demonstrate that no adverse impacts to the integrity of the relevant sites will arise, then we see no reasonable or logical explanation as to why the presumption in favour of sustainable development should be withdrawn.
101. Even if we are wrong in that and paragraph 119 is taken to apply literally in this case, it has no material bearing on the substance of the facility as a proposal: we have demonstrated it would be sustainable, further it would benefit from various presumptions in favour of granting planning permission as a consequence of its conformity with the Development Plan (in S38(6) of the Planning and Compulsory Purchase Act 2004), the provision of renewable energy generation [ibid, para 98], the contribution towards sustainable economic growth and the presumption in favour of permitting unallocated sites where they comply with the policies and provisions of PPS10 [CD/U5, para 24].
The emerging Norfolk Waste Site Specific Allocations DPD
102. The fourth issue on which the SoS wished to be informed was how the application relates to the emerging WSSA. We deal with this issue extensively in the context of the BC’s objections on prematurity and the proximity principle as well as in relation to alternative sites. In short, the proposal could not relate better to the www.planningportal.gov.uk/planninginspectorate Page 25 Report APP/X2600/V/12/2183389
emerging WSSA. The application site is allocated within the submission draft of the WSSA for a range of waste uses including thermal treatment. It is one of only three such sites that are identified for thermal treatment following an extensive call for sites to the waste management industry, landowners and agents. WSSA has been submitted to the SoS and the examination took place concurrently with this inquiry. Given the advanced stage of this document, the fact that it has been through repeated iterations (throughout which the application site has been allocated for thermal treatment), the extensive consultation that it has undergone at all stages of the process and the facility’s close fit with the submission draft, it should in our submission be accorded significant weight. The Inspector’s Report endorses the allocation [CD/G35], having reviewed the quantitative basis for the Norfolk’s waste development framework at the examination [C96] .
Response to King’s Lynn and West Norfolk Borough Council
Introduction
103. One of the claims at the inquiry was Mr Hollister’s contention that the BC’s Development Control Board’s resolved reasons for objection to this application were “irrelevant” and the officer reports were no more than historical documents but this downplays the sequence of events. What the series of three reports and the BC’s statement of case demonstrate is a significant narrowing of the grounds of objection from those originally advanced by the BC. They reduced from 13 reasons for refusal (RR)s in the first officer report (25 July 2011) [CD/M3], 7 RRs in the second officer report (12 March 2012) [CD/M5] and 9 RRs in the third officer report (30 April 2012) [CD/M7] to 4 RRs in the statement of case (ASA/Sequential test (ST), Prematurity, Proximity and Waste Hierarchy). Most of the other grounds were taken up by KLWIN and third parties. As Mr Hollister agreed when questioned, these grounds were not pursued by the BC, which he acknowledged was set against the proposal and seeking grounds for objection, because the BC had been advised and accepted that they were not capable of being sustained at the inquiry.
104. A SoCG between the applicants and the BC confirms the areas to which it has no objections, set out above and in the SoCG [CD/X3, para 13]. In addition to those areas, Mr Hollister added, during questioning, that there will be no adverse impact on: regeneration or inward investment (generally and, in particular, in relation to NORA); tourism; on food producers or processors; the AQMAs in King’s Lynn. He also confirmed that the BC did not object in relation to the perception of harm to human health, notwithstanding it was fully aware of the large number of objections on this ground.
105. He also clarified that: the BC accepts that there is a clear and pressing need for residual waste treatment capacity in Norfolk, as set out in the MWCS at para 6.38; that no such operational capacity currently exists in Norfolk; the County is, consequently, landfilling ‘a significant proportion’ of the waste arisings in Norfolk (we have already set out precisely how much); that in so far as the facility would divert waste from landfill it would be moving waste up the hierarchy; the BC supports the need for improved energy recovery from waste [C81, App 4, p1]; it acknowledges that EfW and moving grate in particular is an appropriate technology for residual waste treatment and, as he said in evidence at Shrewsbury, EfW (appropriately scaled and sited) represents sustainable waste management; and that the land use is acceptable on the application site, subject to the BC’s points on scale (but confined to the proximity issue) and flood risk/ST. In relation to scale, it
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is noteworthy that Mr Hollister accepted that a plant of 105ktpa would be appropriate at King’s Lynn, but such limitation is strange in the light of his acceptance that a 275ktpa thermal treatment facility would be appropriate at Snetterton near Thetford, which has a population half the size of King’s Lynn and which is only marginally more centrally located in the County. He further agreed that the BC accept that the application should be determined on the basis that it comprises a recovery facility as it is likely to pass the R1 test; that a proportion of the energy produced would be renewable and the remainder low carbon and accordingly the facility would be in line with the general thrust underpinning national policy on energy and climate change, adopting the same position as he did in Shrewsbury where he concluded that a plant that will generate less energy than this proposal (only a third of the amount) accords with those Government policies which seek to support the generation of renewable and low carbon energy.
106. The BC’s case focuses almost exclusively on matters of principle: the sequential test (ST), prematurity, proximity and the waste hierarchy. There is a notable absence of any allegations of harm caused by the proposal. These are all matters to be weighed in the planning balance, as acknowledged by the BC.
Prematurity
107. This objection is expressly confined to MSW as confirmed by Mr Hollister in questions [also in para 2.3.1.1. of the BC’s statement of case]. As in all objections on prematurity, it is confined to issues of timing rather than substance or the merits of the proposal itself. When the objection was originally conceived the BC had ecological concerns and the prematurity objection was based in part on those concerns [CD/M5, RR5]. The ecological concerns have been dropped by the BC and so part of the original basis for this objection has been removed. More importantly, when this objection was conceived the BC did not know when the WSSA EIP would be held and when the Inspector would report upon it. (Note: it was received by NCC in late July). We now know that the Inspector will issue his final report in August of this year, as confirmed by the BC. Mr Hollister also accepted that the SoS will in all probability know the WSSA Inspector’s conclusions on the WSSA EIP before this application is determined and possibly have the adopted version of WSSA before him.
108. If the application site is endorsed for allocation, then there is no possible prejudice to WSSA and the issue disappears (as does that relating to flooding and the ST). The BC accepts this.
109. If the site is not endorsed for allocation, it would be unlikely, as accepted by Mr Hollister in questions, that NCC would adopt the WSSA until the decision on this application were known, so that if the SoS takes a different view from the WSSA Inspector on the suitability of the site for this proposal there is a practical way of ensuring that WSSA is not prejudiced. Mr Hollister also accepted when questioned by NCC, that if these circumstances arise and the site is not allocated, it would make no difference to the BC’s case in relation to any of the ST and flood risk, the proximity principle and the waste hierarchy. Whatever the outcome of the WSSA EiP, the SoS will face a simple choice of whether or not the application site is acceptable in the light of all the information before him including the WSSA Inspector’s report.
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110. In other words, whatever the temporal relationship between this application and the WSSA process as perceived when the BC decided to object on prematurity grounds, the way events have turned out actually means that whether there is accord or discord between the conclusions of the WSSA Inspector and the SoS on the suitability of the application site, there is in practice no ability for the grant of planning permission to prejudice either the WSSA process or its outcome.
111. The BC was particularly concerned about objectors to the proposal being prejudiced in the WSSA process. However, this inquiry has provided a far more effective opportunity for objectors to set out their case on and the Inspector and the SoS to judge the application site’s suitability for thermal treatment at this scale, not least given the depth of scrutiny the application has been subjected to over this 30 day inquiry as compared to the consideration of the application site (as WAS65) on only ½ a day at the WSSA EiP. Also third parties at this inquiry have had the opportunity to question the applicants and NCC witnesses and, give their own evidence, over a variety of objections and issues, which would never have been possible in the WSSA process. It was acknowledged by the Inspector examining the MWCS (who also examined the WSSA) that this inquiry was the better forum for the detailed analysis of this site [CD/G9, para 44-45]. Mr Hollister confirmed that there were no objectors present at the WSSA EiP and there have been no suggestions that any were prevented from attending the EiP. He also said that the WSSA Inspector was fully aware of this Inquiry and did not indicate that his task had in anyway been inhibited. As a result, the BC effectively abandoned paragraph 2.3.1.2 of their statement of case (impact on objectors’ ability to make their case and the issue of fairness) which had been a prime reason for raising a prematurity objection.
112. Therefore, the reality is that prematurity is not in practice a tenable basis for rejecting this proposal. Nor can it for the additional reasons we set out below.
113. Prematurity may be a valid objection but only in the strictly limited circumstances as set out in paragraphs 17 – 19 of The Planning System: General Principles (PSGP) [CD/U14]. Planning permission should not be refused on grounds of prematurity unless it can be shown that the proposed development is so substantial, or the cumulative effect would be so significant, that the grant of planning permission could prejudice the outcome of an emerging DPD in that it would predetermine decisions about the scale, location or phasing of new development “which are being addressed in the policy in the DPD” [ibid, para 14].
114. It follows that prematurity could only begin to be a valid objection to this application where the WSSA was to determine issue of scale, location and phasing. However, WSSA is expressly not considering these issues as the spatial distribution, scale and timing of waste management facilities in Norfolk have already been determined in the MWCS:
1) Policy CS4 sets out the scale of the requirement for new waste management capacity in Norfolk and, in particular, identifies a recovery capacity requirement for both MSW and C&I of 703ktpa [CD/D1, p46]. Whilst the WSSA indicates an indicative capacity for each allocation, it does not significantly specify a capacity as part of the site policy: that, as the MWCS makes plain, is a matter for the applicant and the market to determine.
2) Policies CS5, CS6 and CS8 of the MWCS set out specific locational criteria for the location of waste management facilities. Accordingly, the MWCS deals www.planningportal.gov.uk/planninginspectorate Page 28 Report APP/X2600/V/12/2183389
extensively with location. The WSSA will allocate sites and therefore it can be said that it too deals with location, its purpose is to ensure that sufficient sites are allocated to meet the WM infrastructure required in the MWCS. Not all of the sites allocated in WSSA have to be delivered and other sites can come forward in accordance with the locational criteria in CS5, CS6 and CS8 of the MWCS. In this sense the outcome of the WSSA does not matter as planning permission could always be granted if a proposal accords with these policies, with the BC placing reliance on the prospect of windfall sites; and,
3) Policy CS4 also determines phasing. In this regard, the special emphasis on phasing in the final sentence of paragraph 17 of PSGP should be noted. Policy CS4 requires 370ktpa of recovery capacity by 2015 and the remainder of the required recovery capacity (333ktpa) by 2020 (again, there can be no dispute that the application complies with this aspect of the policy). Here, the proposal is required to enable the adopted phasing policy to be met. There is, therefore, compelling justification not to refuse on the grounds of prematurity. The irony is that if this application is refused on prematurity grounds there will be no prospect of policy CS4 being met, a situation which PSGP guidance seeks to avoid.
115. The purpose of the WSSA is to set out specific, allocated sites where waste management facilities are considered acceptable in principle until the end of 2026 and which are available for development as waste management facilities [CD/G26, paragraphs 1.1 and 2.1]. The WSSA explicitly states that the background to the need and the strategy for provision of sufficient waste management capacity in Norfolk is set out in the MWCS [ibid, para 2.4]. The WSSA, therefore, concerns itself solely with the suitability of individual sites for the accommodation of different WMFs. It expressly does not deal with any of: the overall WM strategy in Norfolk; the type of WMFs required, the number of WMFs required, the overall capacity of residual treatment required, phasing, the scale or capacity of individual sites and their distribution throughout the County. Furthermore, as Mr Hollister accepted, the policies in the WSSA must be consistent with those in the MWCS unless it is intended and explicitly stated that the policies in the WSSA are to supersede those in the MWCS, as set out in the Town and Country Planning (Local Planning) (England) Regulations 2002, Regulation 8(4) and (5) (S.I. 2012/767). That is not the situation here. Therefore, the only issue for consideration in the WSSA is the suitability of individual sites to deliver the requirements in the MWCS and it had already been accepted by Mr Hollister that the site was suitable for a thermal treatment (TT) plant.
116. The application site was extensively trailed in the MWCS. It is one of only three sites that are identified as potentially suitable for accommodating a TT plant in the WSSA (another of which is also in King’s Lynn (WAS05) but is agreed to be less suitable than the application site for the proposed development). Furthermore, the MWCS Inspector expressly endorsed NCC’s schedule of proposed minor changes in Appendix A to his report which included an amendment to include a paragraph that specifically referred to the development at the site of a WMF with a capacity of 275ktpa [CD/G9, App.A, p.12, PC162]. He would not have done so if he had had any misgivings about its fit with the policies and strategy that he had found to be sound. Importantly, no party to the WSSA EIP advanced any objection sites either generally or in relation to this application site so that the Inspector examining the WSSA has no remit or need to compare the merits of the application site with one or several rival sites.
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117. Neither would the grant of planning permission on the application site prevent development coming forward on any other WSSA site. Indeed, more than one site for the recovery of waste will be required since the facility would provide only about 40 per cent of the recovery capacity sought by the MWCS. Mr Miles accepted when questioned that there would be no need for another strategic WMF for residual MSW but stated there would be a need for at least another strategic scale plant to manage residual C&I waste. The BC have relied on the MWCS Inspector’s reference [ibid, paras 43-44] to the facility not being central to the achievement of the core strategy in the questioning of Mr Hollister. However, if the facility is not central to the strategy, how can it, if now permitted, predetermine a fundamental locational or other issue in the WSSA?
118. The height of the BC’s case, as put in questions to Mr Miles, was that the facility would take up at least 70 per cent of the residual MSW and thereby set the scale and location of treatment for MSW. As Mr Miles said, this may be so, but, first, issues of scale and location have already been determined by the MWCS and the facility complies with the parameters laid down in the MWCS. As already mentioned, the facility represents the only extant opportunity to make some progress towards the phasing requirement laid down in Policy CS4 of the MWCS, as the BC agreed. Secondly, the basis – an analysis of MSW alone – on which the BC now seek to demonstrate prejudice and therefore predetermination is flawed, given that the MWCS does not distinguish between MSW and C&I waste when prescribing the recovery capacity requirements.
119. As to objections to the allocation of the application site in the WSSA, it has been included in all four draft versions of the WSSA. Objections to the allocation have been assessed at each stage of the DPD process and the allocation has remained unchanged. The objections that remained and were considered at the EIP were prompted in the main by this planning application. Some 93.5 per cent. of these took the form of a standard response and, in any event, the substance of the objections is reflected fully in the issues being dealt with in great detail at this inquiry. As to the BC’s reliance at this inquiry on their own objections to the WSSA, they were stimulated by this planning application (the original representations of the BC were to commend the site in relation to the waste hierarchy, proximity and CHP potential [CD/G28 p.154]) and, in any event, repeat the issues dealt with in much greater detail at this inquiry, the BC’s RR 5 dated 12 March 2012, [CD/M5] relating to the location of the facility, the waste hierarchy, the ST and flood risk, ecology and the need for AA – all matters expressly before this inquiry, which is best placed to adjudicate on these issues.
120. Finally, this objection is another policy based issue with no clear evidence of resulting harm and does not support the plan led system. The MWCS has set down the scale, distribution and phasing of the recovery capacity required in Norfolk. The phasing element is particularly important given the urgent need to divert waste from landfill and the fact that this proposal is the only one that has been put forward and which can materially contribute to achieving delivery requirements expressed in mandatory terms in the adopted development plan. The grant of planning permission for the site, far from undermining the plan led system, would be in accordance with it. It is hard to see, therefore, how the grant of permission now could in any way prejudice the outcome of the WSSA process. It certainly could not be contended that the participatory process involved in formulating the DPD and testing its soundness has in any way been prejudiced: not only has this inquiry provided a hugely better opportunity to objectors to have their say than the www.planningportal.gov.uk/planninginspectorate Page 30 Report APP/X2600/V/12/2183389
WSSA EiP itself, but significantly it cannot be said that anyone would have been denied the opportunity to put forward alternative sites and have them considered by the EiP Inspector as no-one advanced any alternative sites. Whatever attempt was made at the EiP by the BC to suggest sites as examples of windfalls that could come forward, the Inspector is obviously unable to pass judgment on their suitability in the absence of sustainability appraisal and consultation.
121. In any event, insofar as there is any substance in the prematurity objection, it is a matter that needs to be considered in the overall planning balance, as Mr Hollister agreed in questions put to him. The need for residual waste treatment facilities is so pressing that this factor alone could and should outweigh any prematurity concerns. There appears to be no dissent on this proposition from the BC and Mr Hollister goes only so far as to suggest that either the determination of this application should be deferred until after the WSSA Inspector has reported on the EIP and parties have a chance to make representations on that report or that the matter is simply a material consideration that weighs against the proposed development [K12, paras 3.7.3 and 3.7.4]. There is no suggestion that the issue is any way determinative of this application. As the Inspector’s report was published in later July, the applicants’ view is that this issue is no longer germane to the proposal [C95] and at the time of writing was recommended for adoption by NCC’s Cabinet meeting on 2 September 2013. KLWIN’s suggestion that the adoption of the DPD should wait until the SoS’s decision is known runs contrary to the evidence previously presented that, in a plan-led system, decisions on the development plan should be taken first.
Proximity principle
122. The applicants stated in opening that it was not clear when the BC first formulated its objection in relation to the proximity principle that it appreciated the significance of the changes introduced in the 2005 version of PPS10, as confirmed at the inquiry. Mr Hollister agreed, when questioned by NCC, that if the proposal is found to comply with the development plan then this objection falls away.
123. Mr Hollister’s approach was focused, contrary to law and policy, on a single issue – waste miles. He explained when questioned that it was “because that is what the proximity principle is all about.” He did so in the absence of any evidence of harm arising from waste miles. In addition, he did so where his client Council has expressly agreed in the statement of common ground that there would be no such harm [CD/X3, para 13]. He also stated that “the proximity principle is nothing to do with sustainability or carbon footprint.” That statement is wholly at odds with Mr Hollister’s entire case on the proximity principle which is that the principle is underpinned by a concern about the environmental effects of transport.
124. The proximity principle drives from European legislation and, in particular, from Article 16 of the rWFD [CD/L6]. At a national policy level, the proximity principle is contained in the fourth Key Planning Objective of PPS10 [CD/U5, para 3] which states that all planning authorities should prepare and deliver planning strategies that: “help secure the recovery or disposal of waste without endangering human health and without harming the environment, and enable waste to be disposed of in one of the nearest appropriate installations.”
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125. By contrast, the previous and now superseded formulation in PPG10 provided that waste should generally be managed as near as possible to its place of production because transporting waste itself has an environmental impact [K13, App2, box1]. It applied to all waste without any distinction between MSW and C&I. Nor did it distinguish between treatment methods and, in particular, between the disposal and recovery of waste (as the fourth Key Planning Objective now does). Further, it had the sole objective of minimising travel distance. DEFRA warns against perpetuating the old formulation: “The principle is often over-interpreted to mean that all waste has to be managed as close to its source as possible to the exclusion of other considerations, and that local authorities individually need the infrastructure required to do so. This is not the case. Indeed the final part of the Article itself states, “The principles of proximity and self- sufficiency shall not mean that each Member State has to possess the full range of final recovery facilities within that Member State”. Clearly if not even the entire country needs to have the full range of facilities, a specific local authority does not have to. While there is an underlying principle of waste being managed close to its source, there is no implication of local authorities needing to be self-sufficient in handling waste from their own area.” [CD/U32, para 151]
126. Policy is clear that it is for the market to decide when and where to build energy infrastructure [CD/U3, para 2.2.19] and for the applicant to determine the throughput [CD/U4., para 2.5.13]. There is no requirement for a facility to be centrally located [CD/A14, SoS, DL, para16]. This is the legal and policy context on which the proximity principle is founded.
127. Article 16 is entitled “Principles of self sufficiency and proximity.” It is apparent, therefore, that the proximity principle is inextricably linked to the concept of self- sufficiency, as Mr Hollister contended [K12, para 2.3.4]. Self-sufficiency is a concept that applies at the Community and Member State level, not at the level of individual WPAs [CD/L6, Recital 32]. So both the concepts of the nearest appropriate facility and the network of facilities relate to the Community and Member State as a whole [CD/L8, schedule 1, paras 4(2) and (3)]. Mr Hollister agreed that the network of facilities required under the rWFD did not relate to the intra-national level. At Shrewsbury, he said that the self-sufficiency principle as it has been transposed by the Waste Regulations continued to apply at the national level [C87, para 10.4.6]. There is no basis for suggesting the principle of self- sufficiency should relate to a WPA area, let alone an individual town or district within such a WPA. Mr Hollister stated in response to questions that it was no part of his case to suggest that King’s Lynn had to be self-sufficient. However, in evidence in chief he had set out the various population figures of the major urban areas in Norfolk and explaining that, based on an allocation of Norfolk’s residual waste proportionate to the population of King’s Lynn, a residual treatment plant of 105ktpa was justified in the town. When questioned, he agreed, subject to flood risk, such a plant would be acceptable on the application site. Such an approach seeks self-sufficiency at the level of individual towns – even if such a facility could take waste from other parts of the County.
128. Whether one calls it self-sufficiency or proximity, the reality was that Mr Hollister sought to apply the principle at the intra-WPA level. To justify this approach, he referred to the DCLG December 2012 Guidance for local planning authorities on implementing the requirements of the rWFD [CD/U30, Annex 2, Article 16]. www.planningportal.gov.uk/planninginspectorate Page 32 Report APP/X2600/V/12/2183389
However, the smallest dominion that document refers to is the WPA’s area. It provides no justification for the application of the principle to individual communities within that area. Mr Hollister could point to no policy that supports the application of the principle to a level below the WPA area. Moreover, the latest Government guidance (and he repeatedly emphasised the need to look to the latest manifestation of Government guidance, in particular, with regard to justifying his revised waste forecasts) states in terms that each WPA is not required to be self- sufficient [CD/U32, para 151]. Any suggestion that King’s Lynn should not have to treat waste from other communities within Norfolk is, therefore, totally misconceived, as is confirmed in the Guide to the Debate [ibid, para 153]. This states unequivocally that “there is nothing in legislation or the proximity principle that says accepting waste from another council, city, region or country is a bad thing and indeed in many cases it may be the best economic and environmental solution and/or be the outcome most consistent with the proximity principle”.
129. It is instructive to compare Mr Hollister’s view that, in order to comply with the proximity principle, a proposal needs to help minimise waste miles and contribute to the spatial distribution of facilities within each WPA to enable communities (i.e. within those areas and at a sub-county level) to manage their own waste [K12, para 2.3.6], with the Government’s view that: “an over emphasis on restricting facilities to ‘local waste’, particularly defining it by administrative ownership of waste and the boundaries and quantities this implies, can lead to sub-optimal solutions in terms of cost, efficiency and environmental impact; and a significant loss of long term flexibility.”[CD/U32, para154]
130. Mr Hollister claimed that one large facility more centrally located in the County than the proposal would accord with the proximity principle. This was exactly the “over interpretation” the Government eschews. It is hard to understand why the residents of, say, Great Yarmouth would feel their waste was being more responsibly treated if it was done at Snetterton or even Costessey rather than King’s Lynn. Both locations are just as “remote” from Great Yarmouth as King’s Lynn.
131. Central to the BC’s objection on this issue is an interpretation of policy CS5 which requires facilities to be sized in proportion to waste arisings in the urban area in which the facility is sited. However, Mr Hollister accepted when questioned that on the plain wording of the policy it neither requires a waste management facility at each of the locations identified in the policy nor that any such facility should be sized in relation to the waste arisings in the area it is situated. In the circumstances and for the reasons set out below it is hard to see how the proposal can be suggested to conflict with this policy. Indeed, he also agreed when questioned that the proposed development did not conflict with the express wording of policy CS5. The BC’s closing at para 95 states it would be absurd to suggest that a 700ktpa plant in King’s Lynn would comply with the policy, but this is completely irrelevant given that it had already been agreed that the proposal was compliant with the policy’s express terms.
132. At the time of the BC’s first officer report, the MWCS had yet to be found sound and the BC was arguing that it was unsound for reasons which included that it did not clearly identify whether a centralised or distributed strategy for the treatment of residual waste was proposed [C81, App.7]. The BC’s representations on the MWCS demonstrate that it well appreciated that the submission policies could lead to a single large plant serving the entire County. It resisted that outcome strongly and
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argued for a linkage between the location of sites and local waste arisings, but the spatial strategy was found to be sound and the most appropriate strategy when considered against the reasonable alternatives [CD/G9, para41] (which, Mr Hollister agreed during questioning, must have included the alternative strategy that was central to the BC’s representations and opposed the strategy which was ultimately endorsed).
133. Furthermore, specific text was introduced in the final version of the MWCS in response to the BC’s objections to make it absolutely clear that it is for the market to decide whether there should be larger centralised sites in a small number of locations or a larger number of small sites dispersed across the County (and in the process demonstrating that the BC’s interpretation of the MWCS that it could permit a large facility on the western edge of the County was absolutely correct) [CD/D1, para 6.41]. Two further points should be made: first, the BC now put forward an interpretation of policy CS5 that is diametrically opposed to its understanding of this policy when making submissions to the MWCS. Secondly, the MWCS Inspector felt a single 275kpta plant at the application site was consistent with the strategy – it would be extraordinary if he had not commented adversely on paragraph 6.23 of the WCS, given the BC’s representations at the MWCS EiP if he had been at all concerned. Indeed, that wording was a proposed change expressly endorsed by the MWCS Inspector [CD/G9, para 45 and PC162]. Further, as Mr Cameron QC, who attended the WSSA EiP on behalf of NCC, pointed out, the WSSA Inspector made precisely this point to Mr Hollister. The spatial strategy has been settled and it was not open now for the BC to complain and raise it again at the examination of the WSSA.
134. At the heart of the BC’s concern expressed in the first officer report (dated 25 March 2011) was the fact that the proposal would lead to a facility designed to serve the whole of a large County, but sited in its north west corner [CD/M3, p.19]. This concern was allied with two further concerns: the capacity of the A47, a matter which was subsequently reolved, and conformity with some of the PPS10 locational criteria [CD/M3, p.20]. The BC did not rely on any development plan policy in relation to this objection. The position changed in the BC’s statement of case where reliance was placed on MWCS policy CS5 [BC statement of case, para 2.2.4.]
135. The first officer report concluded that the proposal was a “fundamental departure” from the proximity principle precisely because it would lead to a large facility on the western edge of the County and because “waste should be processed near to where it is generated.” [CD/M3, p.33] These concerns found expression in RR1 to the first OR which said that the proposed facility was “geographically isolated from the areas in which the waste will be created and has poor transport links to those areas,” indicating a lack of understanding of the proximity principle at that time.
136. By the time of the second officer report (March 2012) the MWCS had been found sound and adopted. It follows that policy CS5 of MWCS was found to be sound in the light of the policies in PPS10 and must be regarded as fully up to date.
137. As a result of the adoption of the MWCS, the BC officer concluded that a number of the original objections could not be maintained. Officers also recognised that first officer report had not properly reflected the proximity principle because it only applied to disposal and not recovery [CD/M5,p12]. All reference to the proximity principle was dropped from the RRs attached to the second officer report. RR6 to
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that report, however, reflects the same underlying concern on which RR1 to the first officer report was based, the transport of waste to the western most extremity of the County, but this time under the badge of sustainability.
138. However it is expressed, the objection as now put forward still focuses on waste miles and does not take into account other considerations, including the rationale for the change in national policy. The 2005 changes were brought about expressly to enable local planning authorities to consider factors other than distance alone [C80, paras 7.4.13 and 7.4.14 and C81, App.9, p.12]. In his evidence Mr Hollister explained that the change from the formulation in PPG10 to that contained within PPS10 was to introduce a greater degree of pragmatism and, further, that he fully recognised that there was a range of considerations that need to be taken into account in the application of the proximity principle. However, as he accepted when questioned, he does not deal with those other factors in his evidence. His proof was focused on waste miles [K12, paras 2.1.1; 2.3.1; 2.3.6; 2.9.1(c); 2.10.5 and 2.11.1) because of his view “that is what the proximity principle is all about.” The inclusion of the words “one of” in the reformulated expression “one of the nearest appropriate installations” demonstrates the inappropriateness of that stance.
139. Further, other factors which he accepted should be considered include matters such as size and economies of scale; maximising the potential for CHP, and the relative suitability, availability and deliverability of sites. These are all highly relevant to whether a facility is appropriate and are considered elsewhere in these submissions. Moreover, given the urgency of the need for recovery capacity in Norfolk, another important factor in considering NAI is whether the possibility of identifying a nearer site to the main source of arisings would justify the serious delay implications of refusing this proposal. Mr Hollister suggested that planning permission should not be granted simply as a matter of expediency [ibid, para 6.2.4]. However, to claim that granting permission for the Willows would simply be a matter of expediency is incorrect: in particular it fails to recognise that there is a development plan policy that expressly requires the delivery of 370kt of recovery capacity by 2015/16 (policy CS4) and that the proposal is the only one that can hope to do so. On this point alone it is demonstrably the most appropriate facility.
140. In any event, if waste miles are considered, one has to ask what harm results. The BC has dropped all its environmental concerns that initially supported its objection on the grounds of the proximity principle. These included: the capacity of the A47, nature conservation, air emissions and conflicting land use [CD/M3, p.20]. It has adduced no evidence to substantiate any harm arising from additional waste miles, apart from arithmetic [K13, App.3]. It does not establish consequential harm. Further, it should be recalled that the NPPF states that transport impacts should result in a refusal only where they are severe [CD/U1, para 32]. There is no transport issue before the inquiry. It follows that transport should not be a basis of refusal and yet that is what really underlies this objection.
141. Mr Hollister appeared to give up the waste miles issue (and so his case on proximity) almost entirely during questioning when he said that a 275ktpa facility serving the whole of Norfolk at Snetterton, close to Thetford, a town much smaller than King’s Lynn, but only marginally closer to the centre of the County, would be acceptable. His entire analysis to that point had been based on optimising waste miles which he sought to justify by comparison with a site at Costessey [K13, App.3]. That position was, in effect, abandoned without any analysis of the
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implications for waste miles. Mr Hollister further accepted that the 105ktpa facility he said would be acceptable at King’s Lynn could accept waste from east Norfolk and comply with the proximity principle. With those concessions, we submit that this point was effectively abandoned.
142. The WRATE assessment [C71, App.O] shows there would be little or no climate change benefit from locating the EfW Facility at Costessey, near Norwich in the centre of the County as compared to King’s Lynn. The WRATE analysis and its conclusions were not challenged by the BC, as confirmed by Mr Hollister (despite the BC having engaged Eunomia specifically to assess whether it could be undermined) [ibid, App.O, p.20, fig.4.2. and CD/R8]. In particular, Mr Hollister confirmed, when questioned, that he did not take issue with the conclusion of the WRATE assessment that any transport disbenefits are comfortably outweighed by benefits of the diversion of waste from landfill.
143. The tiny CO2 saving in locating the facility centrally in the County as compared with King’s Lynn would be wiped out by the first weeks of delay that will inevitably be caused if planning permission is refused. Moreover, the delay would be considerable: Mr Miles estimates that it would take a minimum of 6 years to carry out the actions required to deliver an alternative strategy (without considering the effects of any need to retender for the Contract). His estimate of delay was not challenged in any material way during the inquiry. As a result of the call-in and the consequent delay, the modest benefits of a more centrally located facility in transport terms have already been wiped out many times over.
144. In short, it is far preferable in sustainability terms to divert residual waste from landfill at the earliest possible opportunity and to seek to optimise aspects of sustainable development generally, than it is to await an outcome based upon minimising transport distance alone. The latter approach is not the correct interpretation of the requirement to dispose of or recover waste at one of the nearest appropriate installations. It is not required for policy compliance and will not assist in securing the most sustainable outcome. The applicants’ view is that the Inspector’s report on the WSSA supports their submissions on location and the proximity principle as do the draft Waste Management Plan for England and draft PPS10 update, Planning for Sustainable Waste Management. [C95 & C96].
Conclusion
145. DEFRA has only recently said that the phrase ‘one of the nearest’ does not mean that the waste must be managed in the closest facility to the exclusion of all other considerations including cost [CD/U32, para 152, 1st bullet.] The reality is that the facility would not one of but the nearest appropriate installation in the absence of any other facility, as recognised by Mr Hollister in K14, para 3.20.3. It would not prevent other sites coming forward and in time it would be part of a wider network of WMFs across the County.
146. In any event the main landfill resources within Norfolk are, in any event, within the BC’s area (some 86.5 per cent of the remaining capacity in Norfolk) [C80, para 3.4.5.]. If permission is refused for this proposal, then in all probability the County’s waste will continue to be transported to the western part of the County and landfilled, thereby involving a similar quantity of waste miles to achieve a waste management method at the very bottom of the waste hierarchy. If the waste is not disposed in these landfill sites it, in all likelihood, will have to travel an
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even greater distance to facilities beyond Norfolk given the deficit of landfill capacity in neighbouring counties or be exported to other countries.
147. The applicants submit that on any analysis the BC’s case as promoted by Mr Hollister on the proximity principle was incorrect. Even on his own analysis the point falls if the proposal complies with the development plan. For the reasons set out above we contend that it does.
Waste hierarchy
148. This is an objection, pursued by both the BC and KLWIN [Statement of case, para 2.2.2], that relates to the terms of the Contract and not the land use implications of the development proposed. Aside from his specific concern in relation to the Contract, Mr Hollister agreed when questioned that the facility would divert waste from landfill and thereby move the management of the waste up the waste hierarchy (which accords with the argument he made at Shrewsbury for the Appellant) [C87, para 8.2.1.].
The Contract
149. Mr Boldon explains the terms of the Contract in some detail in his written evidence [C10, paras 5.4-5.17]. That analysis indicates that there is no basis on which to suggest the terms of the Contract will prevent management of waste in accordance with the waste hierarchy or otherwise provide a disincentive to recycle. Rather, it demonstrates that the Contract provides sufficient flexibility to ensure that if insufficient MSW is available (under the Contract the WDA is to provide a minimum tonnage of 170ktpa) then substitute and/or top up waste will be secured. It is precisely this form of flexibility that the Government states avoids the problem of competition between recycling and energy from waste [CD/U32, para 61].
150. The applicants demonstrate below that the minimum forecast level of residual MSW arisings is comfortably higher than the minimum tonnage in all scenarios. However, in the highly unlikely event that the WDA fail to deliver the MT of MSW then the operator is obliged to use reasonable endeavours to secure substitute waste, which may include C&I waste from within Norfolk or from adjoining counties [C10, para 5.11]. Again, the applicants have demonstrated that there is ample C&I waste available and that there is forecast to be significantly more MSW and C&I arisings than the facility’s proposed capacity. Contrary to BC’s closing in para 9(c), the pricing of this substitute waste is not “entirely a commercial matter”: clause 25.2.4 of the contract (CD/J1) requires the applicants to demonstrate to the WDA’s satisfaction that the price is reasonably obtainable on the market.
151. If the operator fails to source substitute waste, then the WDA has the option to provide top up waste as if it were Contract waste and, again, this can include C&I waste or other MSW that is available to the WDA [C10, para 5.12]. Such a position is even less likely to occur. As a result, even if residual MSW falls below 170ktpa – an event we submit is highly unlikely – there is more than sufficient residual C&I waste to make good any such deficit and the terms of the contract provide for such an eventuality. As already mentioned, the co-treatment of MSW and C&I is wholly in accord with national and European legislation and policy.
152. Both the BC and KLWIN have suggested that a failure by NCC to deliver the MT would result in a financial penalty and that the threat of a financial penalty would act as a disincentive to NCC to recycle [KLWIN Statement of Case, para 2.2.2]. www.planningportal.gov.uk/planninginspectorate Page 37 Report APP/X2600/V/12/2183389
However, there is no such penalty in the Contract. In the unlikely circumstances, where the applicants have to make up any shortfall in the MT by securing substitute waste, if the price that they are paid is greater than the base price there is a sharing mechanism under which the applicants and NCC will share equally any uplift received. If, conversely, the price the applicants are paid for the substitute waste is less than the base price under the Contract, NCC will make up the shortfall. Mr Boldon considered this latter situation to be unlikely given that the gate fee paid for C&I waste would be likely to be higher than that paid for MSW under a long term contract.
153. Having regard to these contractual provisions, Mr Hollister agreed during questioning, that his argument on the waste hierarchy was reliant on a number of assumptions all of which the SoS would have to agree in order for him to make out his case. If only one of the assumptions is incorrect, the entire objection fails.
154. The assumptions were that:
(i) The minimum tonnage would not be met – in other words the SoS must accept Mr Hollister’s calculations on the amount of residual waste arisings available for recovery (and, importantly, as he agreed when questioned, that this assumption is not made out unless the MWL contract is included in the analysis);
(ii) The applicants, contrary to Mr Boldon’s evidence, would not be able to source enough C&I waste to make up any shortfall if the minimum tonnage is not met (as Substitute Waste);
(iii) Similarly NCC would not be able to do the same (as Top Up Waste); and, finally that
(iv) NCC will be incentivised and able (lawfully) to act in a way which results in treating waste in the facility which it would be reasonable in the circumstances to recycle.
155. Sensibly assessed, there is very little chance of all these assumptions, (or multiple layers of uncertainty, as put by Mr Cameron QC) being proved correct in practice. Mr Hollister accepted that the fact that there were multiple layers of uncertainty must be taken into account and will affect the weight to be given to the issue. We submit in the circumstances that no weight can be given to this issue for the following reasons.
Need
156. Need is not in issue in this case. Mr Hollister agreed when questioned that there is a clear and pressing need for residual waste treatment capacity and further that the need was, even on his own figures, the almost 475ktpa total residual waste shown in his Table 2 of K15. That figure is substantially above the facility’s capacity and indicates another facility would be required. Mr Miles sets out an extensive quantitative analysis of need [C80, p.17-37]. There is no requirement to revisit it in detail here given Mr Hollister’s agreement set out above. In short, policy CS4 of the MWCS sets out the overall scale of new waste management capacity needed in Norfolk. The MWCS, as we have identified, is recently adopted and (despite Dr. Hogg’s protestations to the contrary) is up to date having been found to be sound
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following an EIP. At Shrewsbury Mr Hollister described the development plan as the ‘most authoritative source’ [C87, para 12.2.2]. We agree with the contention put forward at that inquiry by him: that one should not go behind recently adopted local development plan documents. Policy CS4 sets out a requirement for 703,000 tonnes of residual waste treatment capacity by 2020 of which 370,000 tonnes is needed before 2015. The forecasts upon which this requirement is based were accepted by the Inspector at the MWCS examination as being robust and credible [CD/G9, para 33]. They are the only objectively assessed and publicly tested forecasts of Norfolk’s waste arisings and, therefore, remain the relevant and most authoritative forecasts for planning purposes. Furthermore, they remain to be met in full: the parties are agreed that there is no operational residual waste treatment capacity currently within Norfolk to meet the requirement identified within Policy CS4. The applicants’ view is that the Inspector’s Report into the WSSA supports the need for additional waste recovery capacity in the plan and that all allocations in the DPD, including WAS65 are required [C95].
157. Mr Miles concludes that, even if pessimistic assumptions are adopted in relation to the future amounts of MSW and C&I waste that are likely to be generated and more optimistic assumptions are made about the level of recycling that is achievable, more than enough residual waste will still remain after recycling to supply the facility. Incidentally, his comments about an uplift in economic activity indicated by the recent increase in waste arisings, disputed at the time by Dr. Hogg and Mr Hollister, were it seems prescient and chime with recent predictions by the Governor of the Bank of England.
158. Despite this, Mr Hollister suggests that there is a danger that the minimum tonnage of 170ktpa may not be met. He arrives at this conclusion via the following steps: (i) First, he takes the residual MSW arisings forecast for 2014/15 of c.207kt (an oral addition made in evidence in chief to table 2 of K15); (ii) Secondly, he applies a 5% discount based on his understanding of what proportion of MSW is unsuitable for treatment in the plant to arrive at c.197ktpa (K12, para 4.2.1. as amended in evidence in chief. Mr Boldon explains that at Riverside it is Cory’s experience that the figure is 0.02 per cent. (C13, para 2.10)); (iii) Thirdly, he deducts a further c.16kpta for what he says will be the improved rate of household recycling which will be delivered through the Norfolk Dry Recyclables Processing Services contract (NDRPS) to arrive at c.181ktpa (K12, para 4.2.3, as amended in evidence in chief); (iv) Fourthly, he deducts a further 35ktpa to reflect the Materials Works Contract to arrive at c.146kpta (K12, para 4.3.9, as amended in XIC); and, (v) Fifthly, he tentatively suggests that other district councils in Norfolk may enter similar contracts and, specifically that Breckland are considering doing so and deducts a further 24ktpa to reflect this, taking the total available residual MSW available down to c.122ktpa (K12, para 4.3.9).
159. There are multiple flaws in this analysis as follows: (i) First, Mr Hollister’s base year is prior to the first full year of operation of the facility (likely to be 2016-17 if planning permission is granted expeditiously). It makes sense to consider the position then rather than at a point two years prior to it becoming operational; (ii) Secondly, as can be seen from K15 Tables 1 and 2, he has departed significantly from the MSW forecasts in the MWCS. He does so by applying national forecasts contained in the DEFRA Forecasting 2020 Waste Arisings www.planningportal.gov.uk/planninginspectorate Page 39 Report APP/X2600/V/12/2183389
and Treatment Capacity Document [CD/U33]. Mr Hollister applies national trends without any regard to local circumstances. Furthermore, the DEFRA document highlights the uncertainties in forecasting – uncertainties which are exacerbated by applying national forecasts at the local level (and as demonstrated by alternative forecasts before this inquiry as set out in the DEFRA forecast in Mr Miles’ rebuttal [C84, App.8] which shows an 8 per cent increase in household waste arisings to 2020). The dangers are amply demonstrated by the fact that there has been a three per cent increase in residual household waste arisings in the first nine months of this year [C89]. As Mr Miles demonstrates, if that trend continues into the fourth quarter of this year the total residual MSW arisings in Norfolk will exceed the MWCS projections by over 6,500 tonnes [ibid, table at the foot of the page]. In the circumstances, it is simply not safe to predict a large fall as Mr Hollister does in K15 and on which his analysis is founded; (iii) Thirdly, he assumes that any enhancement in recycling as a result of the NDRPS will be additional to the increase already factored into the forecasts underpinning the MWCS. However, as Mr Miles explains, it is more likely that the enhanced recycling resulting from the NDRPS will contribute towards the increase in recycling already anticipated within the WCS and will not be wholly additional to it. Furthermore, Mr Hollister assumes that glass will be included in the NDRPS whereas the contract is out to tender and it is clear that the provision of a glass service is left for the bidder to determine [C86, p.5]. He is not in a position to judge what will be offered by those tendering for the contract; and (iv) Fourthly Mr Hollister is, even on his own figures, reliant on the Material Works contract. His reliance is misplaced. The evidence of Robert Billson only served to demonstrate the uncertainty of the delivery of the Material Works contract. First, it should be noted that it is the SoS’s long-standing and consistent policy in determining applications for EfW facilities to have regard only to operational capacity and not permitted capacity given the uncertainties associated with developing new facilities regardless of their planning status [CD/A12, para 16.18]. This is reinforced in EN-3 by reference to existing capacity [CD/U4, para 2.5.67 and footnote 36, p.22 of CD/U3]. In this regard, the treatment capacity the subject of any Material Works contract should not be considered. Mr Bilson confirmed in questioning that: (a) The BC has entered into a contract subject to what was described as ‘exacting conditions’ which must be met before the contract becomes binding; (b) It is a condition precedent that a demonstration plant is installed and operated in Norfolk. This has not been done. Indeed, Mr Bilson confirmed that his 1,000 litre demonstration plant has never been operated; (c) There is no preferred site for the development; three potential sites are said to be still under consideration, but he was not prepared to reveal their identity; (d) There is consequently no purchase agreement or option arrangement in place. Contrary to BC’s closing, para 43, the acquisition of the still unidentified “agreed site” is a condition precedent in the call-off contract [CD/J7, call-off contract clause 1.1.2 (f); (e) There is no planning permission for the facility. Nor has an application yet been made. As a consequence of not having a site, no specific environmental impact assessment work has been undertaken and there
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has been no request made to the Waste Planning Authority for a screening or scoping request; (f) Mr Bilson does not have confirmation that the process constitutes recycling based upon end of waste criteria. This is a further and very significant condition precedent. The BC is not contributing any finance to the proposal whatsoever. It has structured the deal such that it will be financially neutral to it. The gate fee of £55 per tonne matches the NCC recycling credit. If the NCC recycling credit is not received then the deal will founder. To receive that credit the process will have to pass the end of waste criteria. Moreover, in the order of 90% of the input must be recycled [C81, App.11 p.H3]. Mr Bilson had hoped and expected a decision would have been made by the EA on the end of waste criteria in February 2013, but his expectations were unduly optimistic and suggests that EA may see the matter in a very different light. Moreover, he accepted that in order for the end of waste criteria to be met the EA will have to regard the disposal of water to the sewer as recycling. The disposal of water to sewer represents some 25 per cent by weight of the output of the Material Works process (this is additional to the large volume of water “in process or lost” which might be thought analogous to evaporation in composting: see method statement 3 in CD/J7) which alone demonstrates that the 90 per cent recycling rate could not be met without counting this water as recycling. Mr Bilson confirmed that he was unaware of any example of water disposed to sewer being regarded as recycling; (g) There is no EP in place and no application has been made (another condition precedent); and (h) There is no funding in place (a further condition precedent). Mr Bilson revealed that he needed some £85m and accepted that the banks are “notoriously conservative” when it comes to innovative waste management facilities.
It follows that there is an immense amount to achieve before the contract even binds the BC. It would not be unfair to suggest that Mr Bilson failed to provide a proven track record, either of the successful development of waste management companies or of an existing market for products made from black bag waste, which will be critical to end of waste certification. Indeed, the paucity of evidence in this latter regard – a few letters from a number of companies over a long period of time (which did not relate to products produced from residual MSW) – only serves to underline how speculative the commercial marketability for the intended product is. Another major hurdle is regulation 14 of the Waste Regulations. We reject the submission made at para 59-60 of the BC’s closing regarding regulation 14: the stage of the process when the separately collected plastics are added to the black bag waste is before the material has ceased to become waste (if it ever does) and so mixing the materials at that stage is manifestly in breach of the regulation. This in itself raises huge doubts about the practicability and legality of the Omnicite process.
In short it is, to borrow the words from EN-1, a “vague and inchoate” proposal. EN-1 advises that such proposals can be excluded from consideration on the grounds that they are not important and relevant to the IPC’s decision [CD/U3, para 4.4.3]. It is our submission that no weight should www.planningportal.gov.uk/planninginspectorate Page 41 Report APP/X2600/V/12/2183389
be accorded to the Material Works contract. If that proposition is accepted, even on Mr Hollister’s own figures, there is enough residual MSW alone to meet the minimum tonnage and, accordingly the objection must fail; (v) His reliance on Breckland District Council can no longer be maintained in light of its letter dated 23 April 2013 (attaching an earlier letter written shortly after and contradicting K13.9) in which it again confirmed it had no interest in the Material Works Contract [REP/1]; and, lastly, (vi) Mr Miles demonstrates that using the MWCS forecast for the first year of operation, even assuming the NDRPS is treated as wholly additional to the WCS forecast and including the Material Works contract, there is still more than the minimum tonnage of residual MSW [C83, p.4-5].
160. It follows that there is no realistic basis on which the suggestion that the minimum tonnage will not be met and this ground of objection must fall.
161. Furthermore, one arrives at that conclusion even before any consideration is given to C&I. Mr Miles deals with C&I waste arisings in detail in his proof [C80, p.30-37]. There is no need to descend into detail as Mr Hollister accepts that the combined level of residual C&I and MSW within the county is “well above” the plant’s capacity (even on his own figures). As Mr Miles explains, there is also further C&I in neighbouring counties which is currently being landfilled and could usefully be recovered at the facility. Mr Hollister does not assert at any stage that there is insufficient waste. The proportion of the County’s C&I waste that the applicants would need to capture to ensure that the plant operates at full capacity would be well within its reach as Mr Miles demonstrated.
162. We turn to consider whether NCC would be incentivised to send waste which could otherwise be recycled to the facility and, in particular, whether there would be a compelling financial case for NCC to divert waste from the HWRCs to the facility [K12, para 4.9.1, 3rd bullet]. Mr Hollister confirmed when questioned that this was the only specific example he gave of waste which might be caught by his concerns. Mr Boldon deals with this issue in some detail in his rebuttal [C13, para 2.1-2.10]. First, as he explained, Mr Hollister’s assumptions on pricing at his paragraph 4.4.3 are not correct [C13 para 2.5-6 and C14 App.1, para 4.3]. The pricing is a complex matter and assumptions cannot be made as readily as Mr Hollister assumes. The WDA briefing note on tonnages and costs provides a direct critique of his analysis and concludes that his assumptions are flawed and that there will be no incentive for NCC to maximise the waste it delivers to the facility or to deliver more than the minimum tonnage [C14, App.1]. In short, operators of HWRCs are incentivised under their contract terms to maximise recycling and are directly rewarded financially for so doing.
163. Moreover, Mr Boldon is confident that, after market testing, there would be ample C&I waste arisings. No such similar exercise was carried out by BC. Despite this failure, the BC tried to assert that market forces would make it difficult for the Willows to compete for C&I. The argument was based on the WRAP reports [K3, K4 and C14, App.2]. However, what the latest WRAP report demonstrates [C14, App.2 (2012)] is that when landfill tax is taken into account the median price for non-hazardous landfill will be £109 in 2014 [C14, App.2]. This is well above the prices shown in the WRAP report for EfW gate fees. It follows that the suggestion that neither the applicants nor NCC could source C&I waste to make up any shortfall against the minimum tonnage is also without foundation.
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164. Further, Mr Hollister and Dr Hogg take no account of Regulation 12 of the Waste Regulations which places an obligation on establishments or undertakers to operate in accordance with the waste hierarchy. This applies, however, on the transfer of waste. Regulation 35 places the obligation on the transferor to confirm, via the transfer note, that it has discharged its duty in relation to Regulation 12 [CD/L8, Reg.35(2)(d)]. In other words, the Regulations place an obligation on the WDA to confirm that it has complied with Article 4 when delivering any residual waste to the Application facility. The BC say that Regulation 12 only applies where reasonable in all the circumstances and that includes a consideration of viability. The above analysis demonstrates that it would not be justified to refrain from recycling materials on the basis of viability and so it would be unlawful to convey waste to the Willows which should have been recycled at the HWRCs. Of course, if it was so justified, the treatment of such materials at the facility would accord with Regulation 12 and the waste hierarchy.
165. Accordingly, the BC has failed to make out any of the numerous assumptions on which the ground of objection was founded and it should fail.
Disincentive to recycle
166. We deal, briefly, with whether or not the facility will, more generally, disincentivise recycling which has been suggested by a number of third parties. As Mr Hollister said when questioned, there is rarely an EfW inquiry where this issue is not raised and he was not aware of any adverse findings against EfW facilities in this regard.
167. There are a number of drivers that incentivise both public authorities and the private sector to recycle. First, waste authorities are subject to a range of regulatory provisions that ensure waste that is practicably capable of being recycled is recycled, in particular, Regulation 12 of the Waste Regulations (CD/L8). It was suggested by the BC that the application of the Waste Hierarchy under Regulation 12 is subject to an assessment of viability (Regulation 12 provides the transferor of waste must take all such measures available to it as are reasonable in the circumstances to apply the following waste hierarchy as a priority order). Viability is a factor that is to be considered under the proper application of the waste hierarchy. However, as Mr Miles stated when questioned on the same point, it cannot be sensibly suggested that this permits a simple price comparison and the selection of the cheapest option. In this regard, it is important to understand the respective functions of the WCAs and WDAs. The Waste Collection Authorities (WCA) have primary responsibility for recycling waste generated by households and can withhold any amount of waste which will genuinely be recycled. It follows that the terms of the Contract between the WDA and the applicants cannot and will not affect the level of household waste recycling that can be achieved. The Inspector on the Shrewsbury appeal concluded: “This appeal should be determined on the basis that regulatory provisions for the collection and treatment of MSW will be properly applied and enforced. I find, therefore, that there would not be much risk of the proposed EFW incinerating waste that could viably be reused, recycled or composted. This finding would accord with the IPC’s view in the Rookery South Resource Recovery Facility Order that the regulatory system governing MSW would result in a low risk of local authorities delivering waste that could practically be recycled.” [CD/A4, para 112]
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168. Secondly, the private sector is commercially incentivised to recycle as much waste as possible. The position was summed up by the Inspector on the Cornwall appeal. He said: “A waste producer selling materials to a contractor for recycling is hardly likely to pay for the same materials to be sent to the CERC plant. The existence of a market in recyclable materials is likely to ensure that the CERC facility will not necessarily be the first port of call for the treatment of wastes which could otherwise be recycled. Thus, the Council’s concern that the existence of capacity for C&I waste in the CERC facility would act as a disincentive for C&I waste to be recycled is unlikely to be realised.” [CD/A6, para 1879]
169. Thirdly, turning to the facility itself, the waste inputs are controlled by Condition 2.3.3 of the EP [CD/E1 and CD/E2, p.18 and 91] which prevents the facility from accepting separately collected materials for recycling except where they are contaminated and otherwise destined for landfill. The EP also contains a pre- commencement condition under which the waste acceptance procedure must be agreed by the EA prior to the commencement of operations [CD/E1, C2.5 and Schedule 1, Table S1.4 and PO5]. The applicants have also offered to accept a planning condition governing waste acceptance procedures, albeit that for the reasons outlined we submit that such a condition is not necessary. Indeed, no party at the conditions session raised this issue.
Policy Considerations
170. The Government makes it clear in national policy that it does not consider there to be a conflict between high rates of recovery and high rates of recycling [CD/U24, chpt.5, p.77 – 78, paras 22 – 23 and figure 7.1]. In the GRWP it is said: “Energy recovery is an excellent use of many wastes that cannot be recycled and could otherwise go to landfill. It can contribute secure, renewable energy to UK demand for transport, heat, biomethane and electricity and is generally the best source of feedstocks for UK bio-energy needs. Our horizon scanning work up to 2020, and beyond to 2030 and 2050 indicates that even with the expected improvements in prevention, re-use and recycling, sufficient residual waste feedstock will be available through diversion from landfill to support significant growth in this area, without conflicting with the drive to move waste further up the hierarchy” [CD/U23, para 214].
171. And most recently: “Energy from waste can and should support, not compete, with effective recycling.” [CD/U32, para 56]
172. This position has been reflected in many appeal decisions, for example, Rufford [CD/A18, para 1212], Cornwall [CD/A6, para 1887] or Eastcroft [CD/A21, para 343]. This should be of no surprise as it merely reflects the relative economics of recycling, recovery and landfilling. If income can be made from selling recyclate then those responsible for the collection of waste and/ or companies that are seeking to manage their waste as part of their business are unlikely to pay for residual waste treatment or disposal. Likewise, increases in landfill tax have now made EfW competitive with landfilling. As landfill tax continues to rise (next year it will be £80 per tonne) this will only increase the competitiveness of EfW facilities. Mr Boldon explained that, whilst he could not predict whether there would be
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further landfill tax rises after 2014, he and the industry expect at the very least increases in line with inflation. Hence there is a commercial driver for local authorities and companies to seek to recycle or recover value from their waste rather than relying on landfill. The market therefore reinforces the operation of the waste hierarchy.
173. Moreover, it reflects the evidence from Europe which suggests that high rates of recycling can and do sit alongside higher rates of recovery [CD/U24, p.79, figure 7.1 and CD/U15, p.80, chart 3]. DEFRA recently stated that: “Experiences in Europe show that high rates of recycling, composting and energy from waste can and do coexist. In 2010 Austria achieved 70% recycling (including composting) alongside 30% waste which was incinerated; Germany achieved 62% recycling alongside 38% incineration; while Belgium achieved 62% recycling alongside 37% incineration. This compares to the UK with 39% recycling and 12% incineration. While some EU countries are currently experiencing overcapacity in energy from waste, it would seem that rather than reducing recycling rates, this has led to the importation of material for energy recovery from other states with insufficient recovery capacity, diverting even more waste from landfill across the EU as a whole.” [CD/U32, para 58]
174. Accordingly, neither policy nor practice supports the concern that the facility may crowd out recycling. Furthermore, the Government itself has carefully reviewed the proposal against criteria which include the promotion of recycling and the waste hierarchy in the context of the award of the PFI Credits and concluded that the Contract complied with the criteria [CD/J6, Criteria 2 and 5]. The lawfulness of this decision was upheld by the High Court when it rejected the BC’s challenge.
175. Finally in this context we have to deal with Dr Hogg’s suggestion that the facility should not be permitted now as there is a prospect of more recycling/ reuse/ minimisation in the future. This is a wholly impracticable approach and, contrary to the waste hierarchy, in circumstances where he agreed (as did Mr Hollister) that diverting waste from landfill was to move the management of waste up the waste hierarchy. In any event, it is nothing but a recipe for delay and inaction: it would prevent any proposal for waste management facilities below the very top level of the waste hierarchy (in the face of development plan policies requiring the provision of recovery capacity) for fear of displacing a possibility at some indeterminate stage in the future of something higher in the hierarchy. The emphasis in Government waste policy is on diverting waste from landfill (see WS2007 (CD/U24) p.11 para ix where three of the five key objectives concern diverting waste from landfill and GWPR (CD/U23), para 240: which states that it is clearly wrong that we still send so much material to landfill) which the facility would certainly achieve. Moreover, the Government has transposed the rWFD in such a way that there is no duty on individual applications to demonstrate compliance with the waste hierarchy [C84, para 2.29]. Compliance is to be achieved by means of the waste strategy. As we have sought to demonstrate, this proposal complies with the MWCS and that is sufficient in terms of the waste hierarchy. Dr. Hogg accepted as much when questioned.
176. For these reasons, we submit that the facility would not disincentivise recycling and that it complies fully with the waste hierarchy. The diversion from landfill that it would achieve should be accorded very significant weight.
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Flood risk and the sequential test
177. The BC statement of case raises three concerns in relation to flood risk. First, in relation to the ST; secondly, that the proposed flood mitigation works will have an impact on off-site receptors; and thirdly, that there is no suitable emergency plan in place [ BC Statement of Case, para 2.5]. There was no reference to on-site consequences of flooding although this point has been pursued in evidence by the BC’s flooding witness, Mr Robinson, and was referred to in the BC’s email of 10 January 2013 in response to a request for clarification [C51, App.4, para 5]. As Mr Robinson agreed, the BC has not carried out their own modelling or flood risk assessment (FRA) to support their concerns in relation to on and off-site impacts.
178. National policy on flood risk is now contained in the NPPF and its Technical Guide (TG). The PPS25 Practice Guidance remains relevant. It was not cancelled by the NPPF. As Mr Armitage, the flooding witness for the applicants, explained, it remains a key document used by the profession to assess flood risk. It is clear from national policy that it is actual flood risk which is to be used to inform strategic planning decisions. Actual flood risk is tidal or fluvial flooding taking into consideration the effect of existing flood defences (over the lifetime of development for up to and including the design flood criterion). Residual flood risk is either from extreme events with exceptionally high return periods (i.e. in excess of the design flood criterion) overtopping existing defence infrastructure or from unpredictable events that may arise from defence failures). .Actual flood risk is assessed based upon information and mapping provided by strategic flood risk assessments (SFRAs). Environment Agency Flood Zone (EA FZ) Mapping is only to be used where there is no SFRA [CD/U1, para 101, CD/U2, para 4, CD/U11, para 2.22]. NPPF paragraph 101 states in relation to the application of the ST: “The Strategic Flood Risk Assessment will provide the basis for applying this test.”
179. In this case, there is a SFRA: the King’s Lynn and West Norfolk SFRA [CD/G50]. It was undertaken by a reputable and experienced firm of consultants on behalf of the BC and, as Mr Robinson agreed, when questioned, it has been agreed by the EA. He did not criticise it. It is more than a level 1 assessment and contains flood risk and hazard mapping and models overtopping and breaches. The King’s Lynn and West Norfolk SFRA expressly states that it will provide the BC with an informed basis on which to make both strategic and site-specific planning decisions [ibid, paras 9.5 and 10.2]. The 2012 Protocol further confirms that the SFRA should be used in preference to the EA FZ Mapping [CD/G53]. This states: “For development and planning purposes the SFRA maps and Tidal River Hazard Mapping should be used to identify flood risk to your property/ site…This mapping should be used rather than the EA’s interactive online flood map.”. As did the 2009 Protocol before it [CD/G54], which stated: “As the SFRA is the most up to date, for the consideration of individual planning applications, the SFRA flood risk assessment maps – Climate Change maps will be used and NOT the Environment Agency’s Flood Map.” The 2009 Protocol has been superseded by the 2012 Protocol.
180. Policy CS08 of the CS also provides that the SFRA will be used to guide planned growth and future developments away from areas of high flood risk [CD/D3, p.33]. Policy CS01 recognises that development may be required in areas at risk of flooding. Policy CS08 deals with, inter alia, development in areas of high flood risk. Even if the facility was deemed to be in such an area, it complies with policy CS08 for the facility is appropriate to the level of flood risk – we deal with the
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vulnerability classification below and conclude that it would be appropriate with regards to flood risk.
181. Residual flood risk is typically considered and assessed in order to inform the formulation of appropriate flood mitigation as well as to inform the assessment of safe evacuation routes.
Defences
182. The purpose of using SFRAs as opposed to EA FZ maps is to enable defences to be taken into account in recognition of the fact that actual flood risk may be greatly reduced in defended areas [CD/G50, para 2.16]. Mr Robinson suggested that it was unusual for an SFRA to take into account defences. That is not so. First, as set out above policy is clear that it is actual flood risk that is to be assessed and SFRAs are to be used in doing so. Second, Mr Armitage points out a number of examples of East Coast SFRA’s that take the same approach [C53, §2.2.2 – 2.2.9].
183. The King’s Lynn and West Norfolk SFRA states: “The PPS25 flood risk zones give a broad indication of flood risk. However, most areas which fall within the High Probability Zone (Zone 3) are on fluvial or tidal floodplains and many such areas already enjoy a substantial degree of protection from established flood defences. The actual degree of flood risk to which these areas are subject may well be significantly less than that implied by their PPS25 classification, provided that those defences are maintained at their current standard.”[CD/G50, para 2.6]
184. The King’s Lynn and West Norfolk SFRA has carefully assessed the condition of the local defences, in accordance with Government advice [CD/U11, para 3.58]. As Mr Robinson conceded, he did not consider the matter in his proof of evidence. The defences are in good condition with only minor defects that will not reduce their overall performance [CD/PA11, Tab 9, email dated 21 October 2011 (last page)]. The probability of their failure is less than 1 in 1000 years [CD/G50, p.37, para 7.39]. Mr Robinson doubted that one could place a number on the probability of failure but accepted that it was “incredibly unlikely.” With regular maintenance and assuming a lifetime for the development of 75 years, the EA estimates that the standard of protection offered by the existing defences is likely to remain above a 1 in 200 year event throughout the lifetime of the development [N13, App.3].
185. As to the probability of the defences being maintained, the EA document the Great Ouse Tidal River Strategy (September 2009) states that the preferred strategy includes the on-going maintenance of existing flood defences [CD/E11, p.9]. The Great Ouse Catchment Flood Management Plan (July 2010) (another EA publication) applies policy 4 to King’s Lynn and South Wootton. Under policy 4 further action (i.e. this is more than simply maintaining the existing defences) to sustain the current level of flood risk into the future will be taken (accounting for climate change and future development) [C5. See also The Wash Shoreline Management Plan 2 (August) 2010 (C51, App.2) and Mr Armitage’s proof [50, paras 3.11.6 – 3.11.8)]. In coming to that decision the EA had regard to the fact that King’s Lynn has been identified as a key area for growth as well as a cost- benefit analysis of sustaining the current level of flood protection as compared to increasing it under policy 5 [C5, p.750 – 751]. There can, therefore, be considerable confidence that this policy will be implemented. There is certainly no
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evidence that continued maintenance is not possible or not likely. Mr Robinson is, accordingly, incorrect (as set out in BC’s closing, para132) to suggest that there is no evidence before the Inquiry that the defence standards in the locality will be maintained over the lifetime of the development [K22, paras 3.2.12 and 7.1.4. This is also an answer to third party concerns about fauna causing damage to soft flood defences. Mr Armitage addresses this concern in his proof, C50, paras 7.4.6 – 7.4.9]. Moreover, even without maintenance, Mr Robinson accepts that there is a very low probability of breach. As set out above he said it was “incredibly unlikely”.
186. Having regard to the growth status of King’s Lynn and the major development that has been consented already and the further development that is being planned in the vicinity of the application site, it is inconceivable, as Mr Armitage emphasised, that the defences will not be retained and maintained. We submit, therefore, that there is a very high probability that the EA will continue to maintain the existing defences. Further, there is a strong likelihood that the current level of defences will also be sustained by taking additional mitigation measures to combat the effects of climate change when required, not that that is - over the lifetime of the development - actually required to ensure its acceptability.
Hazard mapping
187. The 2012 Protocol is clear that for the purposes of assessing development proposals, the SFRA climate change maps are to be used. In addition where there is tidal river hazard map (TRHM), as the most up to date and accurate information, it should also be used to inform the flood risk assessments for both applications and allocations [CD/G53]. The purpose of TRHM is to address residual as opposed to actual risk and to inform mitigation and evacuation plans, i.e. to ensure the development is safe [CD/U11, para 7.13] in and the EA letter dated 13 July 2011 [K33, App.1]. Contrary to what Mr Robinson states in his proof [K22, paras 3.2.8 and 3.2.14 and K23], TRHM does not replace or supersede a SFRA. (The revised Protocol (2012) is clear that TRHM should be considered where applicable to inform the application of the ST but is not to be used in preference [CD/G53]). Neither does it affect the FZ classification of the site or the vulnerability categorisation of the development – which Mr Robinson accepted, when questioned. Rather it is a supplementary layer of technical information to assist with emergency planning and the assessment of the residual risk in 2115. It is also plainly directed towards more vulnerable development (i.e. residential) as can be seen from the specific design guidance included in the 2012 Protocol [CD/G53, Flood Risk Design Guidance]. There is no equivalent design guidance for less vulnerable development [C53, para 2.3.5 and C54, App.7].
Site specific modelling and the lifetime of the development
188. The 2012 Protocol provides a clear mechanism for challenging the published mapping where an applicant disagrees with it, a provision which remarkably both Mr Robinson and Dr Campbell for the BC failed to mention in their written evidence. In such circumstances, it advises applicants to undertake their own modelling. In this case, site specific modelling was undertaken as part of the FRA and, in particular, to assess residual risk and flood hazard over the lifetime of development. Dr.Campbell expressly agreed when questioned that the applicants were entitled to undertake its own modelling if they considered that a different period was appropriate having regard to the lifetime of the development. Contrary to the BC’s closing para.126, the applicants have not simply “re-drawn” the maps: www.planningportal.gov.uk/planninginspectorate Page 48 Report APP/X2600/V/12/2183389
they disagreed with the modelling on which the map was drawn, i.e. modelling at 2115 and, therefore, in accordance with the protocol remodelled the map to reflect the lifetime of the plant.
189. Mr Robinson accepted, when questioned, that it is important to consider carefully the appropriate design life of individual developments in any FRA (and policy recognises as much). This contrasts with the position in his written evidence [K22, para 3.2.2 and see CD/U11, para 3.100]. Dr Campbell agreed the same and said that the objective of an FRA is to ensure that the development is safe from flooding throughout its lifetime and not over a longer period [CD/U1, para102, CD/U2, para 9, CD/U10, para E2, CD/U11, paras 3.4, 3.90, 3.100 – 103 and C51, App.1, para 4.6].
190. According to the British Standard specific to flood risk, the lifetime of non- residential development should typically be defined as 75 years [C51, App.1, para 4.6]. Further, the EA suggested 75 years in their scoping response [C80, para7.2.9.] Dr Campbell agreed that the BC did not dispute this as the appropriate lifetime for the facility. The typical lifetime of an EfW facility of 15-30 years [CD/U31, p.154 (20-25 years), CD/U32, p.7 (20-30 years) and CD/U34, p.39 (15-30 years) ] should not be forgotten in this analysis (Dr Campbell said he was not aware of any Government Guidance which indicated a lifetime of more than 35 years for an EfW facility). This demonstrates that a 75-year period is itself very precautionary [C80, para 7.2.9]. A 60-year lifetime of development was deemed appropriate for the EfW facility in Shrewsbury (see C53, para 2.3.3). Dr Campbell was in charge of the ES at Shrewsbury. No-one there disputed the lifetime.) There is no point assessing the impact of climate change over a period beyond which the development will have ceased to exist. The SFRA climate change mapping is to 2115. A 75-year lifetime takes the Willows to only 2090. It is that period which is appropriate to assess. If the Inspector and the Secretary of State thought it necessary to do so a condition limiting the lifetime of the development could be imposed [C80, para 7.2.10]. Such a condition has now been proposed and agreed by the parties (C9C - condition 65)].
191. The Applicant’s FRA demonstrates that the existing defences would not be overtopped by a tidal flood event up to and including a 1:200 year event, incorporating climate change impacts, to 2090. The applicants’ remodelling has never been challenged by the BC or its witnesses.
FZ classification and categorisation
192. The parties agree that the FZ categorisation of the site is to be determined by the SFRA. There is no dispute that the application site now lies in FZ1 [CD/M3, p.31 and K22, para 3.1.6] (that is to say it lies in an area at the lowest risk of flooding with less than 1:1000 annual probability of flooding) nor that the applicants’ FRA and modelling demonstrates that it will remain in that FZ at 2090. That being so, there is absolutely no requirement for a ST. Even were the facility within FZ2 or 3, it is classified as ‘less vulnerable’ development [CD/U2, Table 2, p.7]. Avonmouth confirms EfWs should be classified as ‘less vulnerable’ development (CD/A7, para 260). The BC also accepted that this was the case: CD/M5, p.18]. As a result, the facility remains ‘appropriate’ development. [CD/U2, Table 3, p.8] Mr Robinson refers to the fact that the proposed development is classified as less vulnerable (K22, para 3.3.4) but does not grapple with the implications – that the proposed development is appropriate development in FZ1, 2 or 3. We also note that the
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classification of the proposed development as ‘less vulnerable’ in Table 3 is without qualification and, therefore, it is fair, contrary to what Mr Robinson says (K23, pp.2.5.2) that the proposed development is ‘entirely’ appropriate. The SoS has explicitly endorsed EfW facilities as being ‘less vulnerable’ development [CD/A7, para 260)). Less vulnerable development is appropriate in all FZ categories save 3b (functional flood) plain. Assessed to 2115, ignoring the proper lifetime of the development, the Willows falls within FZ3a [CD/U2, Table 3, p.8.]
193. The purpose of flood risk policy is to avoid inappropriate development in areas at the highest risk of flooding [CD/U1, para 100 and CD/U2, para 2]. The aim should be to keep all development out of medium and high flood risk areas “where possible” [CD/U11, para 4.5]. The facility is neither inappropriate development nor is it proposed in an area which is at the highest risk of flooding as defined in the NPPF Technical Guidance [CD/U2, para 2, 1st bullet]. It follows that, even if for some reason it was not accepted that the proposed development site was and would remain in FZ1 for the entirety of its lifetime, the development would not be contrary to the purpose behind flood risk policy. When questioned by Mr Cameron QC, Mr Robinson agreed that policy did not prohibit development in areas of high risk, it sought to steer it away from such areas and that the ultimate question is whether the development proposed is safe.
On-site mitigation
194. Flood risk is properly mitigated through the design and engineering of the facility. Appropriate mitigation and resilience measures have been designed into the facility including: the elevation of finished floor levels to 2.54m AOD; ensuring all the critical infrastructure has been designed to be well above the maximum flood levels (electrical switchgear, for example, is at 4.3m AOD); there are ample places of safety within the main buildings (for example, there are offices and amenities at 24m AOD) [CD/PA10, p.191, Table 9.2] and the access to the waste bunker has been elevated (to approximately 9m AOD). It is correct that the maximum breach level is above the finished floor levels but this is a maximum breach level that is extremely unlikely to occur (the assumptions are described below). The worst-case breach level would be 3.12-3.23m AOD and, therefore, a maximum of 69cms above the finished floor levels. This was a design decision taken having regard to likelihood and the significance of the residual flood risk and after applying appropriate professional judgment. (The BC’s closing, para 175(c) suggests there is no evidence of any real consideration of raising the floor levels above the maximum flood level. This is incorrect: Mr Armitage, when questioned by Ms Lieven QC, confirmed it was a “sensible judgment” not to raise the floor levels further having regard to a variety of factors (see also C53, para 2.6.5) and Mr Smyth for the applicants explained that the matter had been discussed at a team meeting and it was decided that it was not appropriate to go any higher. The EA was obviously satisfied with this approach. Moreover, there is nothing in national policy that says flood risk has to be fully mitigated (rather it must be taken into account and managed). (See Mr Armitage’s summary of these policies: C53, paras2.6.2 – 2.6.4).
195. The applicants have proposed at times when a risk of flooding is predicted the deployment of concrete barriers across the entrances to the elevated, three sided IBA storage bins in response to local concerns relating to the washout of IBA material, although this was not required by the EA. Mr Armitage explained why,
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even during the highly exceptional residual risk scenario, there would be no material detrimental impact on water quality [C50, paras 4.5.1 – 4.5.3].
196. The FRA demonstrates that the development remains safe as the application site is defended from tidal flooding over the lifetime of the development. Highly unlikely residual risks have been minimised by elevation of built development and critical infrastructure and provision of safe refuge well above the predicted breach flood levels over the lifetime of development.
Off-Site flood risk impacts
197. Mr Robinson suggests that no assessment of the risk of flooding to vulnerable off- site receptors has been carried out [K22, para 4.1.5 – 4.1.8]. However, the FRA does, in fact, assess the effect of ground raising and the presence of structures on the application site on off-site receptors. Again, the EA were satisfied with the assessment. Indeed, the EA said that the applicants’ own breach assessment undertaken as part of the FRA shows the worst case event and represents the best available information for the assessment of hazard at the application site [C54, App.7].
198. That was an apt description of the breach scenario – an extreme assumption depicting a snapshot of the moment when a 1 in 200 year flood event in 2090 is allied with a catastrophic breach in defences, at the closest and most damaging location for the application site where there would be an unimpeded flow of water and at the moment when the breach water level would be at its highest. If such circumstances were ever to arise, the water would spread throughout and be contained in what is a very extensive flood cell and would, in any event, rapidly subside. The breach itself is largely unpredictable but the breach modelled requires an exceptionally high extreme tidal storm surge event. Such an eventuality would be predictable well in advance. The National Storm Tide Forecasting Service monitors tidal levels and weather conditions throughout the North Sea and along the East Coast. Flood warnings for tidal areas are typically issued 11 hours in advance as a minimum [C54, App.11, p.19]. In King’s Lynn and West Norfolk, there are flood-warning systems in place [CD/G50, para 4.35], with proposals to enhance them [CD/E11, p.9]. The onset of the flooding is not particularly rapid: for example, C55 demonstrates that from the breach occurring, it would take over 20 minutes for the flood water to reach the PIC.
199. The breach assessment demonstrates that the proposed development will have no effect on the PIC [CD/PA11, App.9. Compare Figures 9.1 - 9.3 with Figures 9.4 - 9.6]. This is a complete answer to Ms Franklin’s concerns. Mr Armitage demonstrates the same with regards to the travellers’ site [C54, App.8].
200. As to cumulative impacts, he has now assessed these in response to Mr Robinson’s concerns in relation to this issue [K22, para 4.1.9]. As Mr Armitage explains, owing to the limited footprint of development compared to the sheer scale of the flood cell, detailed consideration of cumulative impact was not deemed necessary by RPS, nor was it a concern raised by the EA or the BC at the time of the application [C53, para 2.5.3]. Both the Centrica and Palm Paper developments are located upon the generally higher ground adjacent to the flood defences and, therefore, flood depths would be expected to be low. Mr Armitage explains that he does not consider that the minor uplift in water level attributable to the facility
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(3mm) upon an already flooded area would be perceptible in flood risk terms and no material detrimental cumulative effect would result [C50, para 5.6.1].
201. Mr Robinson also states that the modelling demonstrates an increase in flood hazard along Poplar Avenue as a consequence of the development. It is correct that there is a highly localised uplift in hazard category. However, this uplift in category has little or no effect upon access and egress along Poplar Avenue. Any emergency vehicles that would have to pass through areas of similar hazard in order to arrive at the increased hazard area on Poplar Avenue (note emergency vehicles would not in any event use Poplar Avenue to access the facility as was suggested a number of times during the course of the Inquiry). Moreover, it is unclear what the suggested need for emergency vehicles would be – as already identified an evacuation plan could be imposed by condition [(see C9C, agreed condition 64], there is an advanced warning system in place and anyone still remaining on site could simply move to a place of safety within the facility. Furthermore, Poplar Avenue only provides access to Palm Paper, areas of which remain dry during the assessed flood defence breach.
Evacuation plan
202. The information from the FRA is to be used as the basis on which to design an evacuation plan. There is, however, no stipulation that an evacuation plan has to be prepared before the grant of planning permission. There is no statutory requirement on the EA or the emergency services to approve evacuation plans [CD/U11, para 7.31]. The EA was content so long as a condition to secure appropriate mitigation was imposed. Indeed, the BC did impose such a condition on the PIC which, unlike the proposal, is highly vulnerable development. As Mr Armitage confirmed in evidence in chief, in his experience it is quite normal for evacuation plans to be dealt with by condition.
BC’s approach
203. We have already touched upon the general purpose behind flood risk policy – to aim to steer development away from the areas of highest flood risk where possible and ensure development is safe. We have identified that both FRAs and STs involve a degree of professional judgment and must always be proportionate to the degree of flood risk involved.
204. It is difficult to reconcile the BC’s position on this given the planning permissions that it or the SoS have recently granted for major development near to the application site (we refer to Palm Paper, Centrica B and the PIC). Moreover, the BC is promoting major employment development (in the form of EMP1 and 2) close by and in locations at equivalent flood risk to the application site.
205. The reality is that the BC is content, and is indeed encouraging, major development in the area and what the BC have attempted to do is to use the ST as a device to try to exclude the proposed development from this location. There is no basis for contending that the proposed development would be unsafe or contravene the purpose behind flood risk policy.
206. The BC’s approach is to be contrasted with that of the EA who, in their role as the Government’s statutory advisor on flooding issues, are satisfied that the proposal is appropriate and sustainable in flood risk terms. We submit that substantial weight must be given to the EA’s views. (We note that contrary to what Mr Robinson says www.planningportal.gov.uk/planninginspectorate Page 52 Report APP/X2600/V/12/2183389
at K22, para 3.3.7, the applicants did provide the EA the information it required which he sets out at para 5 a) – d). This is explained by Mr Amitage in his rebuttal (C53, para 2.4). The EA formally removed its holding objection by letter dated 17 February 2012 (CD/S2) and stated that the proposal satisfied the ST and that it was acceptable in respect of flood risk. Furthermore, there has been no suggestion whatsoever that the EA somehow misdirected itself, misapplied policy, failed to take into account any relevant material consideration or otherwise exceeded its statutory authority. It is inconceivable the EA would have withdrawn its objection if it considered that the development would be unsafe (or expose others to unacceptable risks.) Indeed, it is inconceivable that the EA would have withdrawn their objection if it had any concerns about the safety of the facility in the event of a flood. In any event, the BC did not ever actually allege it would be unsafe.
Approach to the sequential test
207. The general principle that the assessment of flood risk should be proportionate to the risks involved applies equally in this context [CD/U11, para 3.86, App.B, p.168, para B2]. The ST is a simple decision-making tool designed to ensure that areas at little or no risk of flooding are developed in preference to areas at higher risk (i.e. FZ3 and perhaps FZ2) [ibid, para 4.4]. As agreed by Dr. Campbell, it should not be applied in a rigid, prescriptive or overly formulaic manner and requires an element of professional judgment. The ST certainly should not be used as a tool to knock out applications or sites. However, this has been the approach of the BC, with the ST being alighted upon as a means to bring alternative sites into consideration.
208. The reality is that the ST/ flood risk policy is but one of numerous spatial planning issues to be considered in the determination of this application [CD/U10, para 7]. Failure to comply with the ST cannot be determinative of the application. Rather any departure from it should be weighed in the planning balance. It is clear from the BC’s opening statement that it, at least, accepts this proposition [K1, para 2]. As policy, and not legislation, the ST should be applied having regard to the purpose behind the policy. The NPPF explains [CD/U1, para 101] that its purpose is to steer new development to areas with the lowest risk of flooding. As demonstrated already, the site is both today and for the entirety of the plant’s projected lifetime properly to be regarded as lying within an area with the lowest risk of flooding: there is, therefore, no conflict with the purpose behind the ST.
209. The evidence required for the application of the ST is likely to include: the SFRA, any site-specific FRA, the availability of other reasonably available sites in an area of lower flood risk for the development proposed within the area of search, the vulnerability classification of the proposed development and a demonstration that the proposal would be safe and that residual flood risk can be overcome to the satisfaction of the EA [CD/U11], para 4.27].
210. A proposal may pass the ST in a number of ways. First, going through the process of a ST is required only for applications located in FZ2 or FZ3 [C54, App.12]. As both Mr Hollister and Dr. Campbell agreed when questioned, if the proposal is in FZ1 then the ST is met. As we have already identified, there is no dispute that the application site now lies in FZ1 [CD/M3, p.31 and K22, para 3.1.6]. The applicants’ FRA further demonstrates it will remain so in 2090. Dr Campbell agreed that if the SoS accepts the applicants’ modelling, there would be no need here to apply the ST for there could be no sequentially preferable site.
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211. Secondly, there is, again, no need to go through the process of the ST where the site has been allocated through the DPD process. Where it has been so allocated the ST is met. We acknowledge that the application site is not yet allocated but it is well on the way to being so. The emerging plan and the draft allocation of the application site are both plainly a material consideration. In our submission, particularly where the ST is not to be applied mechanistically, it is appropriate to have in mind the advanced stage of the draft allocation of the application site when considering the ST and flood risk. A ST has been carried out in the context of the WSSA to which the BC did not originally object. Such an objection was only raised in mid 2012, see appendices to NCC’s planning policy witness Ms Jeffery’s proof [N20, App.1-5]). As we have said, the SoS is likely to know the outcome of WSSA before he takes his decision on this application. We are confident that WAS65 will be endorsed for allocation and, therefore, under this route there will be, at the time this decision is taken, no need to apply the ST. The applicants’ view is that the Inspector’s Report on the WSSA endorses the ST carried out by NCC and that there is no need for a further ST to be carried out. It also states that there is no priority order in terms of flood risk for the release of sites.[C95].
212. Thirdly, if the site is not allocated and not in FZ1 then the ST process needs to be applied and the question is whether or not there are reasonably available alternative sites suitable for the development proposed within the area of search and with a lower probability of flooding [CD/U1, para 101 and also CD/U3, para 4.4.3, which provides that the relevant alternatives are those of the same capacity and with a realistic prospect of being delivered in the same timescale].
213. The starting point for the ST, as for flood risk generally, is the SFRA [CD/G50, para 10.2, CD/G53, CD/G54]. Mr Robinson agreed this when questioned (see also K32, para 4.3.21 – 22, 6.3.3 and 7.3.4). Further, policy DM4 of the MWCS expressly states that the SFRA ought to be used. However, it is suggested by the BC that NCC’s conclusions on the ST are flawed because NCC uses its own countywide combined SFRA. This SFRA is based upon the SFRAs carried out by the individual District Councils and in these each uses its own methodology. As a consequence, the BC argues that the combined SFRA cannot be used in the application of the ST as the data within it is not provided on a consistent basis across the whole County. The only consistent data set across Norfolk, the argument goes, is the EA FZ maps and so it is these that should be used. However:
1) This is an argument unsupported by any identified policy. Nowhere, in so far as we can identify, does policy expressly set out the need for consistent methodologies between different SFRAs in the geographic area of search in order to be able to carry out a ST. The PPS25 Practice Guidance expressly provides that the aim is for each County to have an SFRA which covers the whole area either from a single SFRA or from aggregated ones carried out by the individual LPAs in the County [CD/U11, para 2.27]; 2) In fact, it is the BC’s approach that is wholly contrary to policy. As already identified, both national and local policy is clear that SFRAs should be used in the application of the ST. SFRAs are far more detailed than the EA FZ maps and take into account both climate change and defences. They also distinguish between FZ3a and b. They are the best information available and reverting to the lowest common denominator, in this case the EA FZ maps which expressly ignore actual flood risk, the assessment of which forms the entire basis of national policy. The BC’s approach is precisely the mechanistic application of the ST that policy advises against; www.planningportal.gov.uk/planninginspectorate Page 54 Report APP/X2600/V/12/2183389
3) Furthermore, the consistency point goes nowhere: as Mr Robinson agreed, when questioned by Mr Cameron QC, the alleged inconsistencies make no difference in this case. He agreed that the only site which was ruled out on flood risk grounds was Gapton Hall (Great Yarmouth) which is, in any event, in FZ3. Moreover the alleged inconsistencies between the King’s Lynn SFRA and those applying in the rest of the County are more illusory than real: where defences exist they have been taken into account. It seems that NCC assumed The Great Yarmouth and Gorleston SFRA is undefended but the reality is that it confirms defended scenarios have been mapped [C54, App.3, p.4 - 11 and Table A3]. The Partnership of Norfolk District Councils’ SFRA states all existing defences are taken account [C54, App.4, para 5.2 of the Subsidiary Reports]. Breckland has no defences in the district [C54, App.5, para 4.2]; and, 4) By implication the BC approach would also require the TRHM to be ignored, again contrary to plain planning policy. The 2012 Protocol provides that the TRHM must also be considered where applicable to inform the application of the ST (although not in preference to the SFRA). TRHM designations do not affect the FZ categorisation. As explained above, TRHM should be used to ensure the development is safe. The relevance of such information demonstrates that policy does not intend the ST to be applied in a mechanistic way of ignoring anything which does not apply uniformly across the whole County. Moreover, we note the approach of Dr Campbell: at K34, para 7.3.4 he adopts the use of the SFRA as the starting point for the BC revised ST. He states that the method of comparing Flood Risk is by use of the local authority SFRA maps. In the case of King’s Lynn and West Norfolk the Climate Change Maps in the SFRA are used in accordance with the protocol agreed between the EA and the BC.
214. The Combined SFRA did not include a breach assessment given the less vulnerable nature of the development contemplated in the WCS but noted the need for site specific FRAs at the planning application stage [CD/G15, p.4 and 5]. Accordingly, as Mr Armitage concluded, the level of detail within the Combined SFRA is appropriate and proportionate to assessing the flood risk of the proposed development.
215. Mr Robinson’s suggestion that the precautionary principle should be applied, the defences ignored and the site, consequently, designated as FZ3 is wholly unsound [K22, para 3.1.16]. Nowhere that we can find in flood risk policy is the precautionary principle referred to. It cannot be a sensible or proper approach to advocate that no account is taken of existing flood defences, which can radically change the actual flood risk of a site, their condition and the future strategy for their maintenance all of which are well understood. Moreover, Mr Robinson’s approach essentially advocates the use of EA Flood Maps contrary to the BC’s own Protocol and SFRA, and the NPPF.
Policy in relation to flood risk
216. Policy DM4 of the WCS addresses flood risk and stipulates the use of the Borough Council’s SFRA as the basis for assessing risk. This is the approach that has been adopted by the applicants. A FRA must be carried out for all development in flood zones 2 and 3 and for sites greater than 1 hectare. A ST must also be applied where required by PPS25 (now superseded by the NPPF). Both a ST and FRA have been undertaken in this case.
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217. Policy CS08 of the KLWNCS also addresses flood risk and again highlights the requirement to consider flood risk based upon the Borough Council’s SFRA. It seeks to guide planned growth and future development away from areas of high flood risk, whilst acknowledging that some development may be required within flood risk areas to meet regeneration objectives and to maintain the sustainability of local communities. Development within high flood risk areas will be required to demonstrate, inter alia, that the type of development is appropriate to the level of flood risk or that flood risk is fully mitigated through appropriate design and engineering solutions. It is plain from the use of the word ‘or’ that these criteria are to be read disjunctively.
218. For the reason set out above and in the evidence of Mssrs Armitage and Miles, it is clear that: (i) The site lies within flood zone 1 based upon the SFRA current flood map and the applicant’s own modelling for 2090; (ii) Even ignoring the presence of flood defences, contrary to the approach adopted within the SFRA, it has been demonstrated through the ST prepared by NCC that there are not sites sufficient to meet the requirements of MWCS policy CS4 that are both within a lower flood risk zone and are appropriate and reasonably available having proper regard to all relevant criteria; (iii) The development is classified as ‘less vulnerable’ and is therefore appropriate within all flood zones excepting zone 3b, functional flood plain. Even in 2115 the application site does not fall within flood zone 3b and hence it is appropriate to accommodate the use proposed; and (iv) Flood risk is fully mitigated through the design and engineering of the facility.
219. The proposal therefore complies fully with Policy DM4 of the MWCS and Policy CS08 of the KLWNCS in respect of flood risk.
Conclusion
220. Even if the application site is deemed to fail the ST and is regarded as being located in FZ3, the proposal remains appropriate as less vulnerable development. The EA is content the facility is safe and the risk to the development is plainly very low. Risk is a product of the probability of a breach and the consequences of a breach. The probability of a breach is low given the defences, their good condition and the policy intention to see them maintained. The consequences too are low: there will be no material impact on neighbours and all the essential infrastructure within the site to be elevated above the level of flood waters in the worst case scenario. The significance of any such deemed failure in light of the purposes of flood risk policy would be very low and would in the end be only a factor to be weighed in the planning balance. The significant point is that the facility is safe over its lifetime from flood risk.
Alternative sites
221. There is no general planning requirement to consider alternatives or to establish that the proposal is the best option [CD/U3, para 4.4.1]. Planning is concerned with what is acceptable. The question is not whether there are any more appropriate or better sites or whether the proposal represents the ‘optimal’ arrangement of WMFs in the County. [See CD/A4, para 144]. The Salford decision also refers, in which the Inspector said there was force in the submission that if the development is acceptable in land use terms then it should gain planning
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permission irrespective of whether a better site exists; and, Ince Marches, [CD/A22, paras 11.94 and 124].
222. There are only a limited number of situations where there is a legislative requirement to consider alternative sites, for example, under the Habitats Regulations where a development will harm a protected species – consideration will have to be given to the likelihood of NE granting a licence to disturb the relevant species which in turn requires the question of whether there are no suitable alternatives to be considered [CD/L11, Regulation 53(9)]. There is no such legislative requirement in relation to flood risk. The EIA Regulations stop short of imposing a requirement on developers to identify alternative sites but simply requires the developer to outline the main alternatives considered and the reasons for the choice made taking into environmental effects. [CD/L3, Schedule 4, Part 1, para 2 and Part 2, para 4]. We note that the best practice guidance on EIA does, however, advise that it is prudent to consider the main alternatives to demonstrate how decisions have been taken and if such an assessment is undertaken (as here) it may be a material consideration.
223. However, we accept that in this case alternatives are relevant by reason of the ST. Dr Campbell accepted in turn, when questioned, that should the SoS conclude that the application site is properly to be considered in FZ1 then his evidence would be rendered irrelevant. He also accepted that the result would be the same if the application site was allocated before the SoS’s decision on this application.
224. The ST test and consequent need to look at alternatives is a policy rather than a legislative requirement. It follows, as Dr Campbell agreed, it should be approached in a proportionate manner and having regard to whether there is conflict with the purposes behind the policy. As we have already demonstrated, in this case there is no such conflict with the purposes behind the flood risk policy and the ST as part of it. Further, the application of policy is discretionary and so, even if the ST were failed, this would not necessarily lead to rejection of the proposal.
225. Where alternatives are relevant EN-1 states that, given the level and urgency of need for new energy infrastructure, decision-makers should be guided by the following principles: “– the consideration of alternatives to comply with policy should be carried out in a proportionate manner; – whether there is a realistic prospect of the alternative delivering the same infrastructure capacity (including energy security and climate change benefits) in the same timescale as the proposed development; –…the IPC should not reject an application for development on one site simply because fewer adverse impacts would result from developing similar infrastructure on another suitable site, and it should have regard as appropriate to the possibility that all suitable sites for energy infrastructure of the type proposed may be needed for future proposals;…. – alternatives which are vague or inchoate can be excluded on the grounds that they are not important and relevant to the IPC’s decision. – …where an alternative is first put forward by a third party after an application has been made, the IPC may place the onus on the person proposing the alternative to provide the evidence for its
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suitability as such and the IPC should not necessarily expect the applicant to have assessed it.” [CD/U3, para 4.4.3]
226. Furthermore, where alternatives are to be considered, they must be alternatives to the development proposed, as Dr Campbell agreed in questioning, and not some fraction of it [CD/U1, para 101 and CD/U11, para 4.25]. The development proposed includes the IBA facility. Whilst Dr Campbell was reluctant to agree this, he did accept it was part of the planning application which is surely determinative of the matter. Dr Campbell further agreed that, in the light of the principles set out above, an alternative would need to provide the same infrastructure capacity in the same timescale and that none of his sites could deliver that capacity in the same timescale. That, in itself, is we submit enough to dispose of the ST issue in favour of the development.
227. Alternatives to the application site have been considered in detail over a number of years both through the plan-making process and this application. We deal with each in turn.
WSSA
228. Policy WAS65 of the submission version of the WSSA allocates the application site for a range of potential uses including thermal treatment. In making the draft allocation NCC undertook a sequential test based on the combined SFRAs for Norfolk which demonstrated that there was no “in principle” flood risk issue with the allocation of the application site.
229. The application site is one of only three sites that have been identified through the site allocations process for the accommodation of a major/strategic TT plant. Importantly, several such facilities will be required to meet the need for residual waste treatment capacity within the WCS.
230. There are no alternatives to the three sites that are currently identified within the submission draft or that are being actively proposed by objectors. It is not as if objectors have not had the opportunity to identify alternative sites for the WSSA has been through four consultation exercises (Issues and Options (2008), Further Issues and Options (2009), Revised Issues and Options (2011) and Pre Submissions (2012) [see CD/G30, p.4 onwards]. As to the number of consultation responses see CD/G26, para 3.3 – 3.5. Mr Miles provides a detailed analysis of the site’s progress through the various stages of the WSSA [C80, para 6.1-6.2]. The allocation of the application site for, inter alia, TT has been a consistent feature in WSSA throughout the process. The applicants’ view is that these matters have been supported in the Inspector’s Report on the WSSA [C95].
231. The BC has been less consistent. The BC did raise some concerns about the potential environmental effects of a TT plant on the site (ecology, air quality and the need for health matters to be properly assessed – on which issues the BC is now satisfied) but it expressly stated that the site would support the waste hierarchy and the proximity principle as well as recognising the site’s CHP potential [CD/G28, p.154-155]. We now face precisely the reverse arguments from the BC today. The first time the BC raised a concern about the suitability of the site for thermal treatment was in response to the Revised Issues and Options paper in May 2011 following, it is to be noted, the Local Poll in February 2011. By then the indicative capacity had increased from 150ktpa in the Further Issues and Options (2009) to 250ktpa and the application had been submitted to NCC. The objections www.planningportal.gov.uk/planninginspectorate Page 58 Report APP/X2600/V/12/2183389
at that stage to WSSA reflected the fact that the application had been submitted: prior to then the number of objections had been very modest. They raised a variety of potential environmental impacts but, importantly, did not suggest alternative sites that were better placed to accommodate thermal treatment.
WSSA EIP
232. As identified above, no alternatives to WAS65 or the other sites were advanced by either the BC or third parties. (URS’ representations to the WSSA EiP on behalf of the BC did actually refer to alternative sites, but it was explained these were put forward as examples of “windfall” sites which might come forward). The plan making procedure is designed to be front-loaded. In the circumstances, it is not now open to the BC properly to rely on alternatives sites as it has attempted at this inquiry to do. The only issue at the WSSA EIP was whether the individual sites were suitable for the indicated range of WM activities and not the principle of whether the sites were suitable for WM per se. The BC’s suggestion that reliance may be placed on windfall sites defeats the whole purpose of WSSA which is to allocate sufficient sites to enable the requirements of policy CS4 to be met. As noted already, Mr Hollister accepted during questioning that the application site was suitable for TT.
Call for sites
233. Dr Campbell asserts [K32, para 2.2.7] that the WSSA has not been prepared in accordance with good practice as recommended in Planning for Waste Management Facilities [CD/U31] and has, therefore, underestimated the number of sites which are reasonably available for residual WMFs. The BC has never previously objected on the ground that NCC’s ‘call for sites’ was a flawed approach [K32, para 3.3.1]. The claim is made for the first time in Dr Campbell’s evidence. However, the call for sites has been extensive and made to industry, landowners and agents [CD/G26, para 3.2] over the four consultation exercises [See CD/G30, p.4 onwards. As to the number of consultation responses see CD/G26, paras 3.3 – 3.5]. As indicated in the Strategic Housing Land Availability Assessment Practice Guidance [C84, App.2], a site which is not promoted by industry or the landowner is not likely to be available: the attitude of the landowner is critical in terms of deliverability. This may be thought to apply with particular force to waste management proposals which usually do result in forceful reactions from the proposed host community.
234. Another of Dr Campbell’s main concerns was that there was no systematic consideration of employment and industrial land. However, the Mott McDonald report (commissioned by the WDA and not the WPA) did this [K33, App.A] and identified a number of sites that the WPA was invited to investigate further. More importantly, the applicant’s revised ASA considers employment and other potentially suitable land in considerable detail [CD/PA11, App.4, p.4-5], as Dr Campbell accepted. His criticism is at best confined to NCC’s work. Dr Campbell was content to rely on the sites that are contained in the applicants’ revised ASA for his consideration of alternatives.
235. Therefore, despite the bluster over alternative sites, the fact is that all three sites Dr Campbell has put forward were extensively covered in the applicants’ assessment and he has identified no others. Moreover, despite Dr Campbell’s criticism of the approach of NCC, he only puts forward two additional sites (a total
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of three including Harling Road, Snetterton, which was already in WSSA) that he states are preferable to the application site – Land West of William Frost Way, Costessey and the Broadlands Business Park. Both these sites were included in the applicants’ ASA (as Sites 14 and 8 respectively). We address each of these sites below. As will be clear from our earlier submissions, although Dr Campbell claims that these sites are sequentially preferable in terms of both the sequential test and the proximity principle, the application site is properly to be regarded as zone 1 and, therefore, there can be no sequential preference for these sites. Further, for the reasons set out already, he has we submit misapplied the proximity principle.
236. As Mr Miles concludes, the WSSA process alone provides a high degree of certainty on the suitability and, importantly, the availability and deliverability of the site in comparison to alternatives. However, the applicants and Mr Miles have undertaken their own alternative sites assessment.
ASA
237. The objective of the ASA was to assess at a high level (an approach which was never suggested as inappropriate by Dr Campbell) the potential suitability of a range of sites to determine those that are likely to possess the greatest potential to accommodate an EfW facility of comparable scale to the proposal and within the requisite timeframe [CD/PA11, App.4, para 4.1.1]. As such, it mirrors, to a degree, the work undertaken by NCC on the preparation of the WSSA. The fact that the conclusions align closely, particularly in respect of the suitability of the application site, supports the position that significant weight can properly be attached to the allocation of the site within the emerging WSSA.
238. The ASA identified a long list of 142 sites drawn from an evidence base agreed with NCC and which included the preparatory work for WSSA as well as other existing and proposed allocations. The long list criteria were appraised against seven exclusionary criteria (which Dr Campbell agrees comply with the guidance in Annex E of PPS10) [K32, para 4.2.2.] He also believes the criteria were applied fairly save for the criterion relating to the open countryside. He does not suggest that it was an inappropriate criterion but that a site in the open countryside does not amount to an insurmountable barrier to the development of an EfW and that the criterion was applied restrictively to the Snetterton Employment Expansion Site. However, there can be no doubt that there is a strong policy presumption against development in the open countryside which is reflected in the MWCS [CD/D1, polices CS6 and CS8. The NPPF [CD/U1, para 17, 5th bullet] and PPS10, Annex E [CD/U5] also refers, as do and many recent appeal decisions – it was part of the reason for refusing Rufford [CD/A18, DL, para 13] and Middlewich [CD/A14, DL, para 30] and weighed heavily against the proposal at Rookery South [CD/A10, para 6.25].
239. From the 142 sites 16 were shortlisted for more detailed assessment. The shortlisted sites were then assessed in more detail against 13 criteria in order to compare the opportunities and constraints of each site not (as Dr Campbell has suggested) to exclude sites. He agrees that the methodology used to assess the shortlisted sites was suitable for a high level assessment generally [K32, para 4.3.5] but complains that the applicants had failed properly to consider mitigation and had been overly proscriptive in the applying the criteria.
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240. Consistency is important in undertaking an assessment of alternative sites. If prospective mitigation measures are to be taken into account, they would need to be assessed for all criteria not simply one or two where more obvious mitigation measures could be considered. To do so a preliminary design would be required for each site as well as a detailed assessment of the potential environmental impacts. Such a level of assessment is simply not proportionate or practicable in the context of a high level ASA.
241. Six sites were identified as being unlikely to be available or deliverable by 2020 (the period the ASA considered [CD/PA11, T4, para 2.7.34]) and were therefore discounted. Two further sites were identified as having potentially significant constraints that could call into question their future potential and were similarly discounted.
242. The remaining eight sites were broadly grouped into three geographical areas. Two sites, including the application site, were within King’s Lynn, two within the general area of the A11 at Snetterton and four within or adjacent to the Longwater Employment Area at Costessey. As Mr Miles explained in evidence, taking account of the quantitative and locational objectives of the MWCS, it is likely that sites will be required in all three broad locations.
243. The ASA concluded that of the two sites in King’s Lynn the application site was less constrained and preferable having regard to access, the potential impact upon Air Quality Management Areas (AQMAs) and the potential for the development of CHP. (CHP potential is a key factor. The potential of this site to provide CHP should be given considerable weight. If the CHP potential of the application site is judged to be greater than other sites this would, of itself, provide strong justification for the grant of planning permission, whatever the outcome of the FRA categorisation or ST outcome. Dr Campbell agrees with that conclusion [K32, para 4.3.40].
Deliverability
244. In its second officer report, the BC carried out a detailed critique and rescoring of the ASA. In doing so, the BC eliminated a number of factors that had been considered in the ASA, including key factors such as deliverability (an exercise that Dr. Campbell does not now pursue in evidence). That exercise concluded there were three sequentially preferable sites (Site 6 (Thetford), Site 13 (Land East of William Frost Way, Costessey) and Site 14 (Land West of William Frost Way, Costessey)). However, Dr Campbell now rejects that conclusion. Of those sites, he relies only on Site 14. He also relies on Site 1 (Harling Road, Snetterton) and Site 8 (Broadlands Business Park).
245. The BC has sought to discount deliverability despite the importance placed on that factor in both national and local policy. Deliverability is especially important in a County where there is currently no residual waste treatment capacity and large quantities of waste continue to be landfilled and, further, where this need is recognised in a policy WCS4 as requiring the delivery of 370ktpa recovery capacity by 2015 and a further 333ktpa by 2020. In identifying land for WMFs waste planning authorities are advised to avoid unrealistic assumptions on the prospects for the development of individual sites having regard, in particular, to ownership constraints [CD/U5, para 18]. The Inspector in Cornwall concluded, given the urgency of diverting waste from landfill in Cornwall – a situation which applies
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equally in this County – that “the ready availability of sites is a factor that should be given very substantial weight.”[CD/A6, para 1909].
246. The PPS10 Companion Guide advises that in demonstrating that the stock of allocated land does provide sufficient opportunities in line with the core strategy, consideration should be given to any identified constraints to site deliverability including the marketability of sites to the waste management industry and with respect to ‘lead in’ times [CD/U6, para 7.26] and, further, states that only sites with a high likelihood of coming forward should normally be allocated [ibid, para 7.28]. The Inspector in Cornwall expressly said that there was little point in pursuing sites that are unlikely to become available and that this was particularly relevant where there was an urgent need to divert waste from landfill: [CD/A6, para 1908].
247. The NPPF states that to be deliverable a housing site should be available now, offer a suitable location for development now and be achievable with a realistic prospect of delivery within five years [CD/U1, p.12, footnote (fn).11]. As Mr Miles explains, advice on the deliverability of housing sites is equally applicable for WMF sites (albeit the period in which land must be available may differ) [C80, para 7.2.62]. The Practice Guide to PPS25 also makes it clear that the concepts of ‘developable’ and ‘deliverable’ as defined in PPS3 are relevant to the application of the sequential test [CD/U11, p.89, fn.7) and that ‘reasonably available’ sites can be identified from the evidence base for LDDs such as Strategic Housing Land Availability Assessments as required by PPS3 [CD/U11, para 4.30]. The Strategic Housing Land Availability Assessment Practice Guidance provides further detail: “A site is considered available for development, when, on the best information available, there is confidence that there are no legal or ownership problems, such as multiple ownerships, ransom strips, tenancies or operational requirements of landowners. This means that it is controlled by a housing developer who has expressed an intention to develop, or the land owner has expressed an intention to sell. Because planning applications can be made by persons who do not need to have an interest in the land, the existence of a planning permission does not necessarily mean that the site is available. Where problems have been identified, then an assessment will need to be made as to how and when they can realistically be overcome.” [C84, App.2, para 39].
248. The NPPF is also clear that deliverability is a key determinant in judging whether a development plan document is sound [CD/U1, para 182] and this will be a question for the WSSA Inspector. But perhaps the clearest exposition of the importance of deliverability is contained in local policy, and policy CS4 in particular which states that 370ktpa of residual treatment capacity will be delivered in the period 2010 – 15 and a further 333ktpa by 2020 – the period looked at by the ASA. Deliverability is then a key factor. The deliverability of the application site is assured. Moreover, there are no applications or even proposals for thermal treatment on the other WSSA sites or, indeed, any of Dr Campbell’s alternative sites.
Proximity
249. Dr Campbell also states that the ASA fails to recognise that potential sites will have to comply with the proximity principle [K32, para 4.4.11]. In this regard he
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confirmed that he relies on Mr Hollister and that he looked at no factor other than waste miles. Dr Campbell concluded that all three of the sites he identified as equally suitable for the thermal treatment of waste were preferable in terms of the proximity principle [ibid, para 5.5]. We have already addressed Mr Hollister’s approach to the proximity principle elsewhere and demonstrated that it is flawed. For current purposes, we reiterate that there is no policy requirement to show that a site will minimise transport distance. It is but one of many factors to be taken into account. Nor is there any requirement for a facility to be located centrally in a waste planning authority’s area [CD/A14, Dl, para 16]. Furthermore, none of these sites are being promoted and we refer back to what we said was the irony underlying the BC’s arguments on the proximity principle: any benefit in waste miles from the development of a more centrally located site would be wiped out almost immediately by the delay caused to the diversion of waste from landfill by the refusal of planning permission for the facility. In short, Mr Hollister’s errors in relation to the proximity principle invalidate Dr Campbell’s conclusions on the ASA.
250. We turn now to deal with the individual sites. The Snetterton Employment Expansion Area was included on the long list but excluded from further consideration due to a conflict with the open countryside criterion. Dr Campbell criticised this approach [K32, p.18 on]. The criticism goes nowhere as Dr. Campbell himself does not put forward the site as reasonably available (see his Table 7.1, K32, p.70). Nonetheless Mr Miles deals with the point comprehensively in his rebuttal [C83, para 2.2]. We note before doing so Dr Campbell’s acceptance that he provided no evidence to indicate a willing landowner in relation to any of the sites or any industry/ operator interest in any of them. Given the centrality of deliverability that we submit is a very considerable failure.
Snetterton
251. The Harling Road, Snetterton site is allocated within the WSSA for thermal treatment. However, the WSSA provides an indicative capacity for the site of only 100ktpa reflecting the comparatively constrained size and configuration of the site. Furthermore, as Dr. Campbell recognises, the site is not of sufficient size to accommodate an IBA processing facility. The site does not, therefore, offer an alternative for the ‘development proposed.’ The application relates to both the EfW plant and the IBA treatment plant and so, whatever the position may be at many existing EfW plants, both elements must be taken into account and indeed they are inextricably linked and have not come together simply for the purpose of “expediency” as BC suggest. There has been and could be no suggestion that the IBA facility has been included just to frustrate the ST. It is important to remember that for the purpose of the ST assessment the applicants adopted a site area of 3.8ha to reflect both elements of the proposal [CD/PA11, App.10 p.10-10 footnote], rather than 2.4 ha as shown in the ASA.
252. The attempt by Dr Campbell to demonstrate that the site could house the Willows indicates the need for the BC to establish an alternative which might accommodate a plant of the same scale. The exercise put forward in K35 superimposes the facility’s layout on a totally different site. It is not a development designed for the site and fails for reasons set out in the applicants’ note to the inquiry [C18. The BC’s response to this (K37) does not add to the analysis – if anything it only highlights the unsuitability of the site and the lack of thought that went into K35. Not least, because: the exercise only confirms that an IBA facility cannot be incorporated on the site; the accuracy of the plan is questionable and suggests that www.planningportal.gov.uk/planninginspectorate Page 63 Report APP/X2600/V/12/2183389
there may be potential trespass into the neighbouring landfill – this is important given the tolerances shown; the area assumed for parking is unavailable – it is leased to Lafarge; there would be no room for landscaping whatsoever and no account has been taken of the cost and practicality of developing the site – there would be a need for a landfill gas migration barrier (the relationship of an actively gassing but uncontained LF site and a combustion plant placed immediately alongside could hardly be more inappropriate) and, in the second layout, which unusually puts forward a ground level tipping hall, to dig out the waste bunker. Further, there would be a lack of operational flexibility given the extremely tight fit. For example, if there is a need for any repairs to the circulation road it would in all likelihood require operations to cease, whereas on the application site such works can be accommodated without affecting adversely the operations.
253. The revised ASA concludes that the site is far less suitable than the application site having particular regard to the more rural location of the site; potential impacts on the natural and historic environment; the relationship of a residential property to the main site access and the general absence of significant CHP potential [see C73, Table 1 in which Mr Aumônier concludes that there are ‘limited’ opportunities for CHP].
254. Dr Campbell suggests that the grant of planning permission for the Iceni Biomass plant at a nearby site indicates that the location is generally suitable for thermal treatment. The point, of course, adds nothing given the allocation of the site in WSSA. The important point is that a development of similar scale and nature to that proposed could not be accommodated on the site. However, we do reject the notion that the application proposal and the Iceni plant are, to use Dr Campbell’s words, ‘very similar.’ [K32, §4.3.42]. The Iceni turbine hall is 25 m high and the stack 60m high. The proposed development at the facility would be for a building of 51 metres in height with a stack of 85 metres. It is more than twice the height of the permitted Iceni building. In the circumstances, it is hard to see how the two can be regarded as very similar.
255. Lastly, as Dr Campbell accepted, there is no evidence that the landowner is willing to sell the land for the development of an EfW facility. Indeed in a letter dated 19 April 2013 the landowner confirmed that the site was not available for this development and that part of it is currently lease to Lafarge Ltd until March 2024 [SUP/2]. In its further letter of 24 April 2013 Norse has reconfirmed the appropriateness of the estimated recovery capacity of the site of 100ktpa in view of the site’s physical constraints, ownership and leasehold boundaries and its own proposal to establish a WTS.
Costessey
256. The land West of William Frost Way, Costessey is neither allocated in the WSSA (and cannot now be included in it) nor has the site ever been advanced or promoted by either its owners or industry. As Mr Aumônier explained in evidence, the CHP opportunities are inferior to the application site [C73, Table 1 in which he concludes that there are ‘some’ opportunities for CHP]. Moreover, the site is surrounded by sensitive uses. Whilst these surrounding sensitive uses do not automatically preclude a large-scale thermal treatment plant from being developed, in our submission it makes it far less likely. Moreover, the fact is that to date the landowner has elected not to respond to the extensive call for WMF sites in relation to this site. As Mr Miles explained in answering questions from Mr Wilkie, the
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owners – R G Carter and associated companies [see C84, App.5] – are the same as those who did not allow WRG to develop a site close by for an EfW facility. WRG, as Dr Campbell agreed, would have tried to obtain a replacement site in this area but failed. This was helpfully confirmed by Mr Wilkie and his email. This is an email from Cllr Tim East in response to a question Mr Wilkie emailed to him. In his reply Cllr East confirms that: “WRG could not acquire land for their plant as no local land owners would sell/ lease or rent to an incinerator company” [OBJ40/1]. Importantly, Caroline Jeffery further explained when questioned, that the owners of the site had been contacted in the call for sites (on no less than 4 occasions) and had responded but did not put forward this site, as Dr Campbell accepted. (NCC received letters from R G Carter and associated companies in 2008, 2009 and 2011 (see CD/G30, p.9, 26 and p.40) and in 2012 (CD/G31, p.8)). There is no reason why the same owners should have a different view today. Finally, Dr Campbell’s reported but undocumented conversation with Richard Hollidge at FCC to the effect that there was simply no time to remove the restrictive covenant does not fit with the facts – there was at least an eight month period in which to address this matter [C81, App.11, F3].
257. So on the evidence, there is no indication that the landowner would release this site for TT; indeed, there is every indication that he would not: that was his attitude in relation to WRG and he has not responded on this site to the several consultation exercises despite having been written to on no fewer than 4 occasions. It would have been simple for the BC to approach Carters direct had they wanted to establish the availability of the site. The fact they have not done so - or at least not communicated the response had they done so - is very significant.
258. The site is also located within 1.4kms of the River Wensum SAC and SSSI. In this regard it is important to note that a neighbouring site (WAS31) was excluded from WSSA for thermal treatment following objections from the EA and a Habitats Regulations Assessment carried out by NCC which concluded that there was the potential to give rise to significant harm through nitrogen deposition. [CD/G26, p.79 and CD/G42, p.2-22]. The EPR briefing note which concludes that the EA objection to WAS31 for thermal treatment and the NCC decision to exclude the site on that basis was sound [C84, App.4]. There was no challenge from the owner of WAS31 to that conclusion. The failure to object to a removal is significant – as Dr Campbell agreed, such an allocation would have significant beneficial consequences for the value of the land – and any landowner would seek to protect that value. (Conversely the failure to object to an allocation is of no import. First, the allocation would provide value and that is no bad thing for any owner. Secondly, if the owner did not want to develop the site he would not have to do so). Dr Campbell agreed with the exclusion of WAS31 for thermal treatment (albeit he made clear not for ecological reasons [K32, para 3.2.6]). Land West of William Frost Way is situated on the same industrial estate and is broadly equidistant from the River Wensum SAC/ SSSI and should therefore rightly be excluded on the same basis. Dr Campbell further agrees with the exclusion of the SPC Atlas Site on the basis of its proximity to the River Wensum SAC/ SSSI.
259. In the circumstances it is difficult to understand Dr Campbell’s reliance on land West of William Frost Way. His reference to the Shrewsbury EfW is unsound. In comparing the two sites, Dr. Campbell takes no account of: the proposed capacity of the two developments (90,000tpa at Shrewsbury as compared to 275,000tpa at King’s Lynn); the location of the designated sites relative to the Shrewsbury and Costessey sites and the prevailing wind direction at each; or the sensitivity of the www.planningportal.gov.uk/planninginspectorate Page 65 Report APP/X2600/V/12/2183389
designated habitat to nitrogen deposition or its current condition. These latter points were, however, taken into account in the EA’s assessment of the Costessey site.
260. Finally, Mr Miles explains that the Costessey site is the subject of a restrictive covenant which may make its development for thermal treatment less likely. Even if the restrictive convenant does not itself prevent the proper operation of a modern EfW plant, there is still the potential for a beneficiary of the covenant to argue that the covenant does so apply [C83, para 2.3.32 and C84, App.5].
Broadland Business Park
261. The Broadland Business Park (BBP) comprises a prestige, high quality business park (with which proposition Dr Campbell agreed at least in part), the vision and objective for which is: “To reflect its prime location the business park should be of the highest quality. Development must be well designed, at low density and well landscaped. The overall intention is to provide a parkland setting for the buildings, producing an attractive environment for people to work and visit, and which will relate well to adjacent countryside and residential areas.” [C83, para 2.3.10 and see para 7.17 of the Broadland District Local Plan (Replacement) in May 2006.]
262. It is occupied predominantly by large modern office blocks and with an element of more general B1 development, retail, leisure and distribution uses (see the recent marketing brochure [K84, App.4]). The only plot available for development is to the north east of the BBP. It lies 160 metres from the main residential areas to the east of Norwich and under 1.0 km from the Broads National Park as well as immediately adjoining open countryside. The plot has not been allocated in WSSA and cannot now be so allocated. Neither has it been promoted by its owners.
263. Moreover, it cannot properly be considered to be available. The basis on which Dr Campbell considered availability was that there was no planning application in relation to the land [K33, para 3.5.1]. That was wrong. Broadland Council resolved to grant planning permission subject to the completion of a section 106 agreement for a major mixed use development as an expansion to Norwich which incorporates housing and employment uses. As Dr Campbell agreed, residential land values are high and any landowner would want to protect his land value and that it was highly unlikely that a landowner would allow development which might discourage take up of housing. You only need to look at the third party response to the proposal in an area with very little housing to see that could well be the case. Why would the landowner want to switch horses at this stage? There is absolutely no evidence that the landowner is interested in doing so. It is plainly not available – even on Dr Campbell’s terms [K33, para 3.5.1].
264. Further, proposed condition 14 limits the height of the proposed buildings to 15 metres “to ensure an appropriate development”[N45]. This is a reflection of the low level development currently on site and an illustration that the proposed development (a building of some 51m in height with a stack of 85m) would not be acceptable. Dr Campbell accepted that there was nothing of that height at BBP now.
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265. Again, Dr Campbell draws comparison with the Shrewsbury case where he states that a height restriction was overcome “by good design”. However, direct comparisons given the site specific nature of such a consideration are at best difficult to make and at worst meaningless. In any event, the two facilities are in no way comparable with the Shrewsbury plant having a maximum height of 28m where the surrounding buildings were up to 19m tall (which compares to 51m and approximately 12m)[C83, para 2.3.17].
266. Moreover, as Mr Miles explained, the height restriction was imposed at Shrewsbury on an outline permission which related not to the appeal site but to adjoining land and had since lapsed prior to proposals for the Shrewsbury EfW being advanced. The Inspector in that case, therefore, gave no weight to it for that reason [CD/A4, para 26]. The contexts of the two sites, therefore, are not comparable in any meaningful way.
Coltishall
267. The site at RAF Coltishall was raised by Mr Wilkie when asking Mr Miles questions. Mr Miles has addressed this site in detail in a note to the inquiry [C88]. As has Mr Palmer [N14]. Mr Miles states the site was not included within the long list assessment for two principal reasons: first, it is not allocated or otherwise identified in any of the source documents that were used to identify potentially suitable sites in the alternative sites assessment and, secondly, it lies outside the Norwich Policy Area and is not within a 10 mile radius of the three other named settlements of Great Yarmouth, King’s Lynn or Thetford, so that the site is not ‘well related’ to the four main centres as defined within MWCS Policy CS5. Accordingly, the identification of RAF Coltishall would, therefore, have been contrary to Policy CS5 of the WCS. Mr Miles nonetheless analyses the site against the long list criteria and concludes that it would have been excluded from further consideration on the grounds of failure to meet criteria relating to planning policy, open countryside, cultural heritage and transport and access. Not least because the whole site is a Conservation Area (N14 includes a plan which sets out the extent of the Conservation Area) and includes important World War II and Cold War artefacts and, therefore, there would be major heritage asset issues. An EfW with a 85m stack would not be a compatible use on a former airfield recognised as an important heritage asset. Further, the site has a very poor access on minor roads and which passes through a residential area. In short, it is not a suitable alternative site.
Conclusion
268. What this all demonstrates is a high degree of consistency between the conclusions of the ASA and the WSSA in respect of site suitability for the accommodation of a strategic thermal treatment facility. The suitability of the application site has been demonstrated within both the applicants’ ASA and throughout the WSSA process. Whilst another site at King’s Lynn and a site at Snetterton have emerged as draft allocations in WSSA for thermal treatment, the KL Technologies site is agreed by Dr Campbell to be less suitable than the application site and Snetterton is not large enough to represent a genuine alternative. In any event, the real question is whether the application site is suitable in land use terms not whether there are other equally suitable, still less other more suitable sites.
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269. Dr Campbell claims that a number of sites were wrongly excluded from the assessment carried out by NCC, but he failed to identify any site that was not considered in the applicant’s ASA (with a single exception that Dr. Campbell agreed was correctly excluded). His three preferred sites were all included in the applicant’s shortlist of sites and, moreover, at no stage does he suggest that (flood risk and proximity issues aside) these sites are preferable to the application site, only that they are ‘equally suitable’ [for example, K31, paras 3.2.4, 3.3.2, 3.3.3 and K32, paras 5.1.3 and 5.4.1].
270. Further, if this application is refused then substantial delay will be caused with major ramifications for sustainable waste managements in Norfolk. There is no application in relation to any of Dr Campbell’s three proposed sites and no likelihood of any.
Response to King’s Lynn Without Incineration
Carbon footprint
271. In its third officer report dated 30 April 2012 [M7] the BC resolved that NCC should ensure that the carbon assessment submitted with the application was “robust and provides a credible assessment of potential carbon savings if any” and, further, if this was not demonstrated or the carbon savings were much reduced on review, to object on the ground that the facility would be contrary to the aims of the MWCS and the NPPF which both seek to reduce greenhouses gases (GHGs).
272. In the event, the BC instructed Eunomia and Dr Hogg specifically to review both the RPS Carbon Assessment and Mr Aumônier’s WRATE analysis and to identify key arguments for refusing planning permission [CD/R8, para 1]. The issues raised in Eunomia’s report with regard to the carbon assessment of the facility are the same as those put forward in Dr Hogg’s evidence. However, they were evidently not accepted by the BC or otherwise not thought appropriate to pursue. Despite the BC’s resolution in April 2012, the expense of instructing an external consultant and a preliminary report in which it was claimed that there were flaws in the carbon assessment, the BC decided not to pursue an objection. We reminded the inquiry what Mr Hollister agreed when questioned: where the BC abandoned grounds of objection it plainly did so because it judged they were unsupportable. We know that the BC, which Mr Hollister agreed was keen to establish grounds on which to object [CD/R8, para 1]. The instructions are clear: the 2nd task for Eunomia was to identify “the key arguments to put forward such that planning permission may be refused.” The BC did not pursue its original objection on carbon footprint. Clearly, it saw no proper basis on which to do so.
273. Nonetheless, despite his advice having been rejected by the BC, Dr Hogg, together with Mr Burton make the same highly technical points on behalf of KLWIN. In opening we suggested that these points were not only fundamentally flawed, as the evidence of Mr Aumônier and Dr Broomfield explains, but are of no real significance to the determination of this application.
274. National policy is clear: there is no requirement for applicants to assess CO2 emissions against carbon budgets despite the recognition that EfW plants may produce significant levels of CO2e [CD/U3, para 5.2.2 and CD/U4, para 2.5.38]. This has been confirmed in various recent appeal decisions [see, for example, Lostock [CD/A12, para 16.11] and Severnside [CD/A19, para 241].
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275. Moreover, as already set out, the Government is neutral in terms of technology choice – it is a matter for the market. (The MWCS is also technology neutral [CD/D1, para 6.40]. The need for new renewable energy infrastructure, as Mr Burton accepted as being the case with this facility, is so urgent that a comparison between the relevant carbon merits of the technologies is not necessary. The Government states that a mix of technologies will be required to meet its targets [CD/U3, para 3.1.1-2]. These technologies will have different carbon intensities, as well as other relative advantages and disadvantages. As noted already, the Government firmly supports EfW and anticipates a considerable increase in energy output from EfW. This inquiry is not about establishing whether the application site is the best or whether there is another process with a lesser carbon impact, but rather whether the application site is suitable and whether any harmful impacts can be properly mitigated. The answer to both these questions in this case is an emphatic yes.
276. At Lostock the SoS gave explicit consideration to the matter of technology choice in the context of carbon emissions. He recognised the articulation of the urgent national need for renewable energy in EN-1 and EN-3 and the role that waste combustion can make in meeting that need. He said that this type of facility was not incompatible with the emphasis placed on sustainability in the NPPF [CD/A12, SoS DL, para 7.6] and concluded: “It is apparent from the NPSs, however, that the kind of technology to be used by the proposed Development is not to be ruled out as contrary to the objectives of developing low carbon energy sources. Whilst it may be true that there are other technologies that may be superior from a purely low carbon point of view, it should be noted in response to this and a number of other representations made by objectors that the role of the section 36 process is not to ask whether there is a better way to generate the electricity a proposed generating station will generate, or a possible better use of the proposed Development site, but to consider whether the impacts of the Company’s proposal would be (or can be made) acceptable in planning terms. From a carbon emissions point of view, the Secretary of State sees no reason to depart from the analysis and conclusions of the Inspector.” [CD/A12, SoS DL, para 7.9. The Secretary of State is also clear that there is no requirement to demonstrate that an individual application is the best overall environmental outcome (ibid, SoS DL, para 24)].
277. In any event, the EA are satisfied that the facility represents BAT both in terms of technology choice and pollution control. [CD/E2, p.54] . Regard should also be had here to the advice in PPS10 that WPAs should avoid duplication between the planning and pollution control regimes [CD/U5, paras 26-27]. Further, Regulation 18 of the Waste Regulations says that whilst planning authorities must have regard to Article 16 of the rWFD they should ignore the words “taking into account best available techniques.” Both confirm that the consideration of BAT is not principally for the planning authority. The EA are also satisfied that the facility also represents BAT in terms of global warming potential (GWP) even ignoring the avoided methane as a result of landfill diversion [CD/E2, p.65]. Furthermore, DECC recognises EfW with CHP as a ‘highly efficient’ renewable technology that offers ‘considerable’ carbon savings [C71, App.C, para 10.1] and explicitly exempts waste fed generators from the need to meet and report on sustainability criteria required for other generators with an output greater than 1MW [C71, App.N, Summary.
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Consultees almost unanimously agreed with this decision]. EfW proposals have consistently been held by Inspectors and the Secretary of State to comply with climate change policies. (See, for example, Lostock [CD/A12, SoS DL, paras 7.6 and 7.9]; Hartlebury [CD/A11, SoS DL, para19], Severnside where the Inspector concludes that the plant would help combat climate change by reducing reliance on fossil fuels and by cutting emissions from landfill. He called these savings ‘high’ and ‘significantly greater’ than any produced by optimizing the location of the development [CD/A19, para 224 and 241]; Shrewsbury where the Inspector said that the EfW plant would make ‘a significant contribution to reducing carbon emissions’ and rejected an objector’s argument that the WRATE assessment was flawed [CD/A4, para 135]; and Middlewich [CD/A14, SoS DL, para 23].
278. Mr Burton’s concern was that the facility is not properly speaking low carbon, as a result of his comparative analysis to the predicted carbon intensity of the grid over the life of the development (which we explain above is not required). He goes on to say that, therefore, the proposal does not comply with the NPPF. It is only KLWIN that makes this point. Mr Hollister on behalf of the BC expressly agreed when questioned that the proposal would be a low carbon development.
279. In any event, Mr Burton accepted when questioned that if he was wrong in his interpretation of policy (and he conceded that he was not a planning expert) and that EfW was as a matter of policy to be considered low carbon, his objection must fall away. It is clear that policy treats renewable energy as low carbon. The Guide to the Debate states that EfW plants provide valuable low carbon energy [CD/U32, p.2 (1st para)]. The Energy White Paper includes energy from waste in a list of low carbon distributed technologies [U37, Table 3.1, p.86]. The White Paper on Planning Our Electric Future explains that the Government intends to zero rate biomass under the emissions performance standard since it is regarded as low carbon [CD/U38, para 2.4.30]. It is, therefore, the Government’s policy to treat EfW facilities as low carbon. This is because the Government recognises the dual role performed by these plants, as a result of which they cannot be sensibly compared with facilities whose sole purpose is to treat waste. The Government clearly values and seeks to encourage plants which, in addition to managing waste, generate renewable energy with the added benefits derived from the particular qualities of the energy generated – the 4 ‘Ds’: diversified, dependable, dispatchable and distributed.
280. In so far as Mr Burton relied on the NPPF, nearly every paragraph he relies on encourages both renewable and low carbon energy (see, for example, paragraphs 93 and 97). There is no dispute between the parties that the facility would generate renewable energy. So that even if it were not low carbon, it would still engage the policy encouragement for renewable energy in the NPPF. It is difficult in the circumstances to see why there is any policy conflict. Mr Burton made no attempt to grapple with the presumption in favour of renewable energy development contained in para 98 of the NPPF [CD/U1]. Further, in so far as the NPPF defines low carbon technologies as those that reduce emissions as compared to fossil fuels (p.55), Mr Burton accepted when questioned that he had not done this (he has compared the facility to a future mix of generation capacity). It follows that he has made no attempt to establish that the facility is low carbon in those terms.
281. Furthermore, as Mr Burton accepted when questioned, he made no attempt whatsoever to quantify or otherwise explain the harm he said arose from his
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calculation that the facility in electricity-only mode would have a marginally larger carbon footprint than landfill (see Table 7.1, W-000, p.13).
282. With regard to the only development plan policy he cited (CS13 of the MWCS), Mr Burton accepted that the facility complies with the wording of that policy. He said that the policy was out of date following the publication of the NPPF (which we refute for the reasons just set out). Even if he is right, all that means is that less weight should be attributed to that policy and the proposal’s compliance with it. That is a long way from suggesting that the development proposed does not comply with the development plan.
The applicants’ carbon assessments
283. Whilst not required, RPS nonetheless conducted a carbon assessment as part of the application and Mr Aumônier carried out a further assessment of the facility’s environmental impacts, including the transport impacts, using the EA’s life cycle assessment software, WRATE. WRATE is a software tool specifically developed for appraising the carbon performance of waste management systems. Its use is recommended by DEFRA. Mr Aumônier’s WRATE assessment employed the default parameter values in the software (save a conservative amendment on conversion efficiency).
284. The RPS carbon assessment estimates that the facility would result in a reduction in GHG emissions of between 88,000 and 96,000 tonnes of CO2e per annum in electricity-only mode. This is equivalent to the annual emissions of 85 per cent of the households in King’s Lynn [CD/PA7, Carbon Assessment, para 4.1]. Over the expected lifetime of the proposal (assumed to be 25 years for these purposes) the total GHG emissions savings of the facility in electricity-only mode would be between 2.2 and 2.39 million tonnes of CO2e compared to the current landfilling of waste [ibid, para 42]. In CHP-mode: the annual savings will be between 141,000 and 144,000 tonnes of CO2e and the lifetime savings between 3.53 to 3.59 million tonnes of CO2e [ibid, para 43].
285. The WRATE assessment also demonstrates that the facility would deliver significant climate change benefits over landfill, a saving of some 86,000 tonnes of CO2e in the year modelled (2015). Using the default WRATE assumptions the saving is 119,000 tonnes of CO2e.
KLWIN’s carbon assessment
286. KLWIN’s case, however, as put by both Dr Hogg and Mr Burton was that the Willows in electricity-only mode will have a carbon footprint that exceeds that of all other modelled alternative waste management routes including landfill so that it is said that the facility will fail to reduce GHG emissions, will not be low carbon and, furthermore, it is asserted that the facility’s contribution to renewable energy generation will be insignificant [W1, paras 5 and 8].
287. It accepts, however, that in CHP-mode the facility would make carbon savings over all other management routes Eunomia looked at, save MBT with dual fuel, and so would be preferable in GWP terms to landfill [CD/R6, p.53, Table 7.1].
288. The Eunomia carbon assessment uses the functionality of WRATE to appraise alternative waste technologies. In doing so it amends the default parameters such as electricity mix, process performance and waste composition. Mr Aumônier deals
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with what he considers to be the flaws in Dr Hogg’s assumptions in his rebuttal [C73, para 16-23]. As Mr Aumônier explained in his oral evidence, there should be no methodological uncertainty here. All he has done is to use the WRATE default parameters. WRATE is, of course, the Government’s recommended tool for the evaluation of waste management systems. Dr Hogg interferes with the default assumptions. Mr Aumônier explained that he was concerned that the changes in the default assumptions were designed to produce a particular result. Contrary to KLWIN closing para 35, W13 does not sanction departing from default parameters, although it recognises that there may be a need to reconsider certain parameters on any update of WRATE. Nor is there any suggestion in the supplementary guidance to the Treasury Green Book [W14] that its guidance should be used in preference to the WRATE default values. We turn to deal with each of the principal areas of methodological disagreement.
Electricity Mix
289. The benefits of the scheme arise in part because of the avoided need to generate electricity from other sources. In CHP-mode, this benefit increases. In the original WRATE assessment, ERM employed the default assumption within the software, which is that marginal generation is replaced. This equates to those power stations which contribute ‘peakload’: switched on when demand is high; and switched off when demand is low. In WRATE, this marginal generation is a mix of coal and gas power. In the recent cold weather, when demand was high, up to 40 per cent of electricity generation was coal-based.
290. Since the submission of proofs and rebuttals DEFRA’s ‘Guide to the Debate’ was published and this document settles the issue. As Mr Aumônier explained in evidence, it provides that a CCGT plant is the current standard comparator as this is the ‘marginal’ technology if a new power station is proposed [CD/U32, p.18, fn.29]. This is a conclusive rejection of Dr Hogg’s position. He had tried to rescue his case, when questioned, by relaying to the inquiry a telephone call he made to an acquaintance in DEFRA. However, he has provided no note of that call, despite suggesting that he might do this. There has been no opportunity for other parties to test what was supposedly said and, in any event, the recently published Government policy could not be clearer: it must surely be preferred to an unsubstantiated, informal conversation with a DEFRA employee.
291. Mr Aumônier carried out a further sensitivity analysis changing the default in WRATE to 100 per cent CCGT in order to reflect the new guidance [C75]. The carbon benefits of the scheme are shown to reduce but the results still indicate a clear preference over landfill in electricity-only mode. It is worth noting that the GWP impacts of landfill increase under this scenario because the benefits of landfill gas recovery are also reduced.
292. The ‘Guide to the Debate’ [CD/U32] approach is consistent with the advice in the supplementary guidance to the Green Book, Valuation of Energy Use and GHG Emissions on which Dr Hogg relies. It requires consideration of the counterfactual, i.e. what would happen if this proposal did not come forward. The counterfactual to the facility is CCGT. If capacity is not provided by the facility, then the same capacity will instead be provided through new-build CCGT. Thus, the correct comparator for assessing the carbon benefits of the scheme is CCGT and the correct point of analysis is when the proposed facility will come on line.
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293. However, Dr Hogg does not identify a comparator or counterfactual. His approach is to suggest that a direct comparison is made between the carbon-intensity of the scheme and the forecast marginal generation in every year of the facility’s lifetime, through to 2035 and beyond. This serves to demonstrate the relative performance of the scheme compared with average generation through the lifetime of the development. It is not a realistic comparison to make: the SoS must make a decision now as to whether to provide electricity to the grid through the scheme or whether this capacity will be provided instead through CCGT. He does not have open to him the option of providing in place of the scheme the future grid mix, whatever that might comprise (for example, if the hoped for nuclear contribution does not eventuate the mix will be more carbon intensive than presently envisaged).
294. As an average, the marginal mix must be comprised of technologies with carbon- intensities both above and below the mean. Based on DECC’s projections, the future energy mix. The Government explicitly seeks a diverse mix of all types of power generation including fossil fuel generation [CD/U3, para 3.3.4]. It also includes the significant expansion in EfW which is explicitly encouraged in the national policies we have already identified.
295. Dr Hogg’s proposition, that the facility be compared unfavourably with a future mix that already includes hypothetical capacity of this type, cannot be the intention of policy. Taken to its logical conclusion, it contemplates refusing planning permission for any proposal that would have a carbon-intensity higher than the grid average over its projected lifetime. Ironically that would include CCGT and would perpetuate the on-going use of long established coal-fired power stations. In the circumstances, we submit that the applicants’ carbon assessments should be preferred.
Metals recovery
296. Mr Burton asserts that the rates of metals recovery from Incincerator Bottom Ash (IBA) assumed in WRATE and used in Mr Aumônier’s assessment of the carbon footprint of the facility are too high. This is based on Eunomia’s report to KLWIN which draws on a single paper to conclude that the rates in WRATE are at the upper end of the range of what is found in practice. However, as Mr Aumônier explained, the WRATE values are nonetheless consistent with the Best Available Techniques (BAT) Reference Document (BREF) for municipal waste incineration and, of course, the EA has judged the facility to be BAT.
297. Mr Burton also relies on lower metals recovery rates that are referred to in the permit application and used by RPS in its assessment. As Mr Aumônier explained, these were lower simply in order to present a conservative analysis and to be consistent with the position adopted by the applicants in their bid to NCC. In practice, metals are valuable and the operator is incentivised to recover as much ferrous and non-ferrous material from the IBA as possible.
298. Ballast Phoenix, the proposed operator of the IBA facility, indicated to Mr Aumônier that it expects the recovery rate for the metals delivered to it to be 80 per cent or higher. Ballast Phoenix is a highly experienced operator and the leader in this field in the UK. It is extremely well placed to judge. Ballast Phoenix informed Mr Aumônier that its analysis reveals that recovery rates can reach 90 per cent and
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provided him with confidential data on the recovery of ferrous and non-ferrous metals from IBA at six sites in 2011 and 2012 [C73, para 32-33].
299. Mr Aumônier provides further analysis in his rebuttal based on this data from Ballast Phoenix and national composition data for residual wastes [C73, para 33-37 and App.F].
Methane capture
300. A further area of disagreement is the level of methane recovery from landfill. The more methane, a GHG which is around 25 times more damaging than CO2 [CD/U32, para 35], that a landfill site captures the better it performs in GHG emission terms which inevitably reduces the comparative benefits of EfW.
301. As Mr Aumônier explains [C73, p.10-13], Mr Burton’s calculations in this regard were flawed in that he assumed that the roughly equal measures of CO2 and methane that are generally accepted to be produced by landfill was by weight. It is not. Rather it is by volume. Since carbon dioxide is much heavier than methane Mr Burton has considerably overstated the mass of methane captured and combusted in landfill gas and his recalculations of the RPS carbon assessment are, consequently, flawed. That Mr Burton’s calculations ought to be treated with caution was confirmed by his acceptance, when questioned by Mr Cameron QC, of a number of points made by Dr Broomfield in rebuttal. It became clear that Mr Burton only disagreed with one of the points made by Dr Broomfield (his ‘Assumption 2’) [N32, p. 5], demonstrating further errors in his approach.
302. Mr Burton pushed a rate of 75 per cent, when Eunomia recommended capture rates of zero per cent for landfill sites with no gas extraction, 20 per cent for those with limited gas extraction equipment and 50 per cent for the most modern landfills sites. This recommendation reveals internal differences in the KLWIN team and lends weight to the assumptions employed by RPS.
303. Again, for the reasons put forward by both Mr Aumônier and Dr Broomfield, KLWIN’s position on this issue is unsound, which further undermines its position on carbon footprint.
Waste composition
304. KLWIN’s carbon assessment also changes the assumptions of the waste composition. In short it reduces the biogenic content of the waste. This leads again to a lowering of the carbon benefits of the scheme. Mr Aumônier explains why Eunomia’s assumptions in this regard are flawed in detail in his rebuttal [C73, paras 39-46].
305. Of the waste in a typical black bag somewhere between one half and two thirds will contain biogenic carbon. (See CD/U32, para 37. DEFRA’s Forecasting 2020 waste arisings and treatment capacity February 2020 carries a central assumption of 68% based on a range of 55 to 75% [CD/U33, para 2.4 and C73, App.I, which states up to 68% of MSW is biomass; C71, App.AG – DEFRA’s Review of Municipal Waste Component Analyses, Final Report which estimates the biogenic content of MSW to be 67% with a 95% confidence level; and C71, App.L, p.45, which confirms the Government’s default assumption for the purposes of the Renewable Heat Incentive is that 50% of MSW is biomass.] The Government expresses a clear preference for the treatment of this waste by EfW over landfill [CD/U32, paras 43-44]. That can www.planningportal.gov.uk/planninginspectorate Page 74 Report APP/X2600/V/12/2183389
be no surprise whatsoever: waste management routes with lower GHG emissions are placed higher in the hierarchy [ibid, para 35]. Moreover, the facility complies with the ‘two rules’ as Mr Aumônier explained: first, as the EA confirmed [CD/E2, p.20-22] the facility is highly efficient (and has the potential to increase its efficiency through operation in CHP mode) and, secondly, the current biogenic content of the waste is such that EfW is preferable over landfill [CD/U32, para 32].
306. There is no doubt that waste composition may change over time and it is very difficult to make precise predictions of waste composition beyond the near future [ibid, para 16]. Mr Aumônier explained when questioned that the applicants will have operational flexibility that will allow any future changes in waste composition to be managed. It would be open to them to preferentially select C&I waste with a high biomass content. The Government refers expressly to this form of operational flexibility to address any future changes in waste composition over the lifetime of an EfW plant [ibid, para 44]. As Mr Aumônier said, when questioned, the fact that the Government in February 2013 was using a central assumption of 68 per cent biomass content [CD/U33, para 2.4] should provide considerable comfort. He also said that the biogenic content would be unlikely to fall below the level of 50 per cent. Further, it should not simply be assumed that the biomass content of waste will forever decrease having regard, for example, to the increased use of biopolymers. Moreover and importantly, what the Government does not do is suggest that the better route for treating typical black bag waste now should not be pursued on the basis that the composition of waste may change over time. However, deferring the problem is precisely what KLWIN urge: that is simply not a tenable solution and Mr Aumônier described it as an entirely impracticable way of running things. It is plainly contrary to the clear message pervading Government policy that we have set out already that there is a clear and urgent need for these types of facilities.
The significance of the facility’s contribution to renewable energy generation
307. There is no doubt that the facility would make a significant contribution to the pressing need for renewable energy. Mr Aumônier sets out in some detail why EfW is treated in policy as a supply of renewable energy which is released through the use of fuel from a renewable energy source (i.e. the biomass fraction of waste. In exporting 21.1MW of electricity to the local grid the facility would make a very material contribution towards increasing regional renewables generation. As Mr Boldon indicated, the plant would generate sufficient electricity for the domestic needs of circa 36,000 households. Despite the significant contribution that the facility would make to energy production, Dr Hogg suggested that the facility would provide only a ‘trivial’ contribution to national targets for renewable energy. This is manifestly the wrong approach. Policy is clear beyond all doubt that even small contributions are highly valued. The NPPF states even small-scale projects make a valuable contribution to cutting GHGs [CD/U1, para 98]. EN-1 says that a significant amount of infrastructure is required both large and small scale [CD/U3, para 2.1.2.] It was Dr Hogg’s and Mr Burton’s case that national policy statements were not relevant to the determination of this application. However, both EN-1 and EN-3 clearly state that they are likely to be a material consideration (ibid, para 1.2.1 and CD/U4, para 1.2.3. The Chief Planning Officer’s letter, dated 9 November 2009, also confirms their materiality [CD/U18, Annex A, para 16]. If further comfort was required, all decision letters on EfW facilities since the publication of EN-1 and EN-3 in July 2011 accept their relevance for example,
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Salford [CD/A9, para 37]. Moreover, the NPPF – the latest Government Guidance in relation to planning policy – expressly states at paragraph 3 that National Policy Statements form part of the overall framework of national planning policy and are a material consideration in decisions on planning applications. This is determinative of the issue and demonstrates that the applicants, NCC and the BC were right to agree that these documents are material to this application (see X2 and X3, para 12).
308. It further emphasises the need for decentralised energy generation and expressly endorses the contribution that can be made even from micro-generation. It states that these technologies can lead to some reduction in demand on the main generation and transmission systems and can offer significant economic benefits where the heat and electricity can be put to commercial use [CD/U3, para 3.3.29]. If micro-generation is to be encouraged in the context of a NPS dealing with NSIPs, how can it seriously be suggested that a proposal that would export 21MW is not? Dr Hogg accepted, when questioned, that he could not point to any policy that suggested a proposal cannot be significant unless it is above the 50MW NSIP threshold nor could he point to a policy that states that weight can only be ascribed to the generation of renewable energy at a certain scale. Mr Hollister does not endorse Dr Hogg’s approach, as he supported the plant at Shrewsbury which would generate about a third of the energy of the proposal (8MW gross) [CD/A4, para 20] complying with the Government’s national energy policies.
309. Moreover, there are numerous recent decisions where Inspectors and the SoS have accepted the need for small-scale energy generation and ascribed significant weight to the generation of substantially less energy than will be produced by the facility. For example: Shrewsbury (8MW gross) – “a small, but nonetheless significant, contribution” (ibid, paras 20 and 126); Cornwall (20MW gross, 16.6MW net) “the energy benefits of the proposal should attract significant weight” [CD/A6, paras 64 and 2128]; and Avonmouth “the electricity generation in the order of 26.4MW would amount to a significant contribution to the local energy supply” [CD/A7, SoS DL, para 15]. Further, as both Dr Hogg and Mr Burton accepted, when questioned, it is not just the quantity of energy produced that is significant but also its qualities, that it comprises energy which would meet what we earlier characterised as the four ‘Ds’: diversified, dependable, dispatchable and distributed.
Conclusion
310. The proposal, operating with or without CHP, would provide significant GWP advantages over landfill. This is a factor which should weigh heavily in favour of the grant of planning permission, not least given the central importance the Government attaches to tackling climate change.
Air quality
311. Mr Smyth explained that detailed dispersion modelling of the air quality effects associated with the stack emissions has been undertaken on a worst case basis, assuming that the facility will operate continuously, at the maximum throughput, at the WID limits and using the worst case meteorological data. The results of the assessment show that the air quality effects of the facility during its operation would not be significant.
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312. Further, the results of a cumulative assessment shows that the air quality effects associated with emissions from stack, from traffic arising as a result of the development (although any development of the application site will give rise to some traffic) and emissions from Centrica B and the Palm Paper sludge combustor would not be significant.
313. Mr Smyth also concluded that there is no evidence that traffic generated by the proposal would be likely to result in a material detriment to the local AQMAs or that the facility would otherwise have a material effect on air quality for local residents.
314. There is a large body of experts who agree with Mr Smyth’s analysis. Most significantly, the EA has granted the environmental permit [CD/E1]. In doing so, the EA endorsed the model used for the air quality modelling [CD/E2, p.26, para 5.2.1]. Mr Bramwell for KLWIN accepted, when questioned, that the ADMS 4.2 dispersion model was commonly used for regulatory purposes. Not only did the EA approve the model but, through its specialist Air Quality Monitoring and Assessment Unit, it checked the data input files to verify that the results were consistent with those input files and the assumptions and conclusions in the risk assessment. It also carried out a sensitivity analysis. After this thorough process, the EA confirmed that the modelling was soundly based and was an appropriate tool with which to assess the environmental impact of the proposal [CD/E2, p.96]. This conclusion was the same as those arrived at by AEA for NCC and by URS and AQ Consultants for the BC (who as Mr Hollister, Dr Hogg and Mr Bramwell conceded were looking for reasons to refuse the application). Together with RPS, that is no fewer than five separate expert bodies who agree that the modelling was robust.
315. Both Mr Bramwell and Mr Hughes for KLWIN acknowledged that they were not experts in air dispersion modelling. Mr Bramwell sought to rely on his engineering and gliding experience. Further, they each accepted that they had carried out no modelling themselves nor any other quantitative analysis and, consequently, had no data with which to contradict the conclusions of RPS.
316. Mr Bramwell complained that he had not been provided with all the information he needed to carry out his own modelling. However, as Mr Smyth explained when questioned, and also in C24, para 1.4, Mr Bramwell was provided with all the data that Mr Smyth would have needed to recreate the model.
317. As to Mr Bramwell’s specific concerns about the modelling, Mr Smyth has addressed them in detail in his rebuttal [C24, para 1.1-1.11]. We reiterate here only the following points. First, Mr Bramwell accepted that if the SoS determines that the effects of Centrica B were taken properly into account then much of his evidence falls away. Secondly, as to the Centrica B building itself he accepted when questioned that the dominant building was the facility itself and that having regard to the dominant building accorded with the modelling guidance for ADMS v4.2 [N46]. Thirdly, and with regard to the air dispersal units at Centrica B, Mr Bramwell’s evidence relied wholly on his misreading of an email from CERC which he repeatedly stated in oral and written evidence contained a recommendation that the effect of Centrica B should be modelled using a CFD model [W-206]. In fact, the email says the opposite: CERC state that it was not worth undertaking such an exercise because if anything the effect of the air dispersal units at Centrica B would be to cause greater dispersal. Finally, it is plain that the EA took these matters into account and, importantly, as Mr Bramwell accepted when questioned, did so at a
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time when they had received the correct layout for Centrica B [CD/E2, p.96 and 101-102].
318. The further concerns Mr Bramwell identified in his rebuttal in relation to emissions abatement control (odour and the treatment of fly ash) are all covered by the permit conditions and the environmental management scheme as he agreed, when questioned.
319. Whilst Mr Bramwell dealt with alleged errors in the modelling, Mr Hughes dealt with ‘air pollution dispersion.’ Despite having worked for NE for a year in related areas, he did not provide any quantitative analysis. He fails to identify the relevant EQS for the habitat of interest nor did he mention the process contribution (PC) of the facility let alone compare it to the relevant EQS. He fairly conceded that his conclusions were based on no analysis of the concentration of pollutants in the environment. He further admitted, when questioned, that he was not aware that the modelling had been done on a worst case basis and had assumed that the plant operated at WID levels all the time. We submit, in the circumstances, that Mr Hughes’ evidence should be given no weight.
320. It follows that there is no substance in KLWIN’s attack on the air dispersion modelling.
Ecology
321. A large amount of paperwork was generated in relation to ecology. Ms Colebourn’s evidence deals comprehensively with ecological matters. In closing the applicants make the following points:
1) Both NE and the EA have scrutinised the proposal and do not object to the facility. Any ecological objection therefore sets itself against the views of the relevant statutory advisors on this issue to the Government; 2) As Ms Colebourn points out, the approach adopted for the assessment of ecological impacts was layered with cautious assumptions. In addition to the wholesale adoption of the precaution built into the air dispersion modelling described above, she explains that the highest level of background pollutants was used and it was assumed that the maximum calculated process contribution would affect the whole of the designated site [C35, para 1.22]. Further the critical load functions (CLF) for Roydon Common and Dersingham Bog SAC provided by APIS are very precautionary, as is the screening threshold applied by NE/EA. A PC of <1% of the CLF is regarded as insignificant and not requiring appropriate assessment under the Habitats Regulations. The precautionary nature of that threshold is plain: it is a hundred times lower than the level below which harm would not be caused to the most sensitive species according to present knowledge. If that were not precautionary enough, although the applicants demonstrated, and NCC accepted, that this threshold would not be exceeded, NCC nonetheless chose to apply a yet further layer of precaution by carrying out an AA. This, together with the further information supplied by Ms Colebourn, has demonstrated that the facility, either alone or in combination with other projects, will not adversely affect the integrity of Roydon Common. The conservation objectives for this site are set out in C31, App C1 and assessed in NCC’s AA [Z10, Annex 2]. 3) Mr Boyd for the Norfolk Wildlife Trust (NWT) broke off his cross-examination of Ms Colebourn at a point when an agreement between them seemed likely to be reached. In the ensuing adjournment he and Ms Colebourn agreed a SoCG [C37]
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which, when the inquiry resumed, he confirmed he personally was content with although he could not commit the NWT. As a result he chose not to cross-examine her any further, the clearest indication that he considered the NWT objection had been resolved. A version of this SoCG was signed much later by Mr Boyd on behalf of the NWT [CD/X6] but only after changes to and deletions from the version that he had previously agreed were made. The NWT still agreed that CLF for acid on Roydon Common is itself precautionary and that the highest predicted PC affecting the habitat of interest was less than 0.9 per cent of the CLF assuming the modelling was robust [ibid] but, as Mr Boyd accepted, he provided no modelling himself and did not cross-examine Mr Smyth. Importantly, Mr Boyd said that the 1 per cent approach was the “best tool we have” and that some threshold was necessary if development was not to be completely stifled. It follows that the NWT objection which was focussed on acid deposition, although not formally withdrawn, has, in effect, been agreed away. However, in a shift of its position and contrary to what Mr Boyd had previously agreed in C37, NWT reintroduced concerns about nitrogen deposition and Mr Boyd, very belatedly, revised his proof of evidence to focus on nutrient nitrogen deposition. A full response by EPR to NWT’s altered position is contained in C39 in which it is explained that the PC of the facility would be less than half of the 1% screening threshold and would be rapidly cancelled out by declines in background levels. The NWT’s concerns have been demonstrated to be untenable; 4) Mr Stevenson’s evidence was wholly reliant, as he agreed, on Mr Bramwell’s alleged modelling errors being accepted. He agreed that if Mr Bramwell is wrong, his evidence falls away. For the reasons set out above, we submit that Mr Bramwell’s evidence is unreliable so that Mr Stevenson has no foundation for his own conclusions; 5) Mr Stevenson accepted when questioned that he provided no evidence whatsoever of any impacts on Roydon Common caused by pollutants. Only a single paper he referred to, Jones and Power [W-412] relied on measurements/ data taken from Roydon Common itself. However, as he accepted, first, those measurements are not recorded in the paper itself. Secondly, the conclusion is only that ‘many’ heathland ecosystems are affected by ambient levels of nitrogen deposition. Mr Stevenson accepted that the paper said nothing as to whether Roydon Common was one of those ecosystems. Thirdly, in any event, by 2020 the predicted nitrogen deposition rate at Roydon Common as predicted by APIS will be below the range of deposition rates studied in Jones and Power, casting doubt on the paper’s relevance. (Compare W-412, para 2 of the Summary (13.3-30.8kg N ha per year) and C34, App.3 (12.88)). Fourthly, the paper’s conclusion was based in part on the understanding that nitrogen deposition rates in Europe are unlikely to decline in the next few decades. That conclusion is directly contradicted by APIS. This casts further doubt on the paper [ibid, App3]; 6) Partially on the basis of Jones and Power and in reliance on the Payne et al paper [W-416] (which Mr Stevenson confessed he had not read and had failed to appreciate that it dealt with the critical load itself whereas the focus at this inquiry was whether the emissions were below 1 per cent. of the relevant critical load), he called into question the levels at which critical loads were set. He explained that he had no objection to the use of critical loads per se only that he felt that the particular levels needed adjustment. Mr Stevenson went on to say that he was not technically competent to advise as to how the critical loads should be adjusted generally or with regard to Roydon Common itself. In criticising APIS’s critical loads, he set himself against Mr Boyd who demanded that the views of APIS (and NE and the JNCC) are properly respected as expert views; www.planningportal.gov.uk/planninginspectorate Page 79 Report APP/X2600/V/12/2183389
7) Mr Stevenson had to admit when questioned that he did not know what the process contribution (PC) of the facility would be. Therefore he was not able to make a site-specific evaluation of the potential ecological harm arising from the dispersal of pollutants from the proposed development. This underlined the academic nature of his evidence, which should be given little weight; 8) Mr Bramwell, Mr Hughes and Mr Stevenson all accepted that legislative controls in respect of air pollutions have been extremely successful. There is no reason, therefore, to doubt APIS’s predictions of further reductions in relation to sulphur and nitrogen depositions [C31, App.7 and C34, App.3]. In the case of nitrogen deposition the predicted drop between 2005 and 2020 is 4.62kg, some 46% of the critical load, or 31 grams a year. By contrast the process contribution is 3.6 grams a year. As Mr Cameron QC said, on the basis of the APIS predictions, the drop in nitrogen deposition during the course of this inquiry would outweigh the process contribution of the Willows over a year of operation; 9) Further, there is no evidence that plants on Roydon Common are suffering from the effects of air pollution. Contrary, to what Mr Stevenson said, there is not a lack of evidence: the inquiry has the benefit of Ms Colebourn’s evidence,including her Ellenberg analysis [C31, AppC1], which indicated only that the lost species shared a common need for light which can be explained by the lack of grazing/ management on Roydon Common until recently, Dr Denyer’s field study and NWT’s evidence as well as Mr Stevenson’s acceptance that the absence of a species did not amount to evidence of deterioration [W-426, p.3, para 3.1] Furthermore, the NE condition assessment, as Mr Stevenson agreed, does not indicate any concerns relating to air quality on Roydon Common [C31, App.4.] Similarly, the vulnerability box of the Natura 2000 data sheet does not refer to air pollution [ibid, App2]. Moreover, 95 per cent of Roydon Common is assessed by NE to be recovering [ibid, App 4]. Lastly, Ms Colebourn and NCC agree that NWT’s management of the site will ensure the condition is likely to improve in the future [C33, para 3.15-3.17 and CD/M1, App.6, para 6.20; and, 10) Mr Wilkie and others raised concerns in relation to the potential effects of the proposal on the fauna of the Wash SAC including the harbour porpoise. These issues are dealt with in detail in a note produced by Ms Colebourn [C38] which concludes that there will be no likely significant effects on the species in The Wash. (Note: The applicants’ view is that the Inspector’s Report on the WSSA supports their view that they have complied with the requirements on designated sites [C95]).
322. In accordance with the conclusions of NCC, NE and the EA, there is no ecological justification for the refusal of this application.
Health
323. There is concern amongst KLWIN and third parties about the effects of the proposal on health. However, it was emphasised at the PIM that any evidence on health at this inquiry should be confined to the framework laid down by PPS10 [CD/U5, paras 26-31]. However, KLWIN’s and Professor Howard’s evidence go well beyond these boundaries, especially in Professor Howard’s proof of evidence which goes into a detailed examination of health issues that PPS10 clearly states is inappropriate.
324. The Government is quite clear on the proper delineation between the planning and pollution control regimes. Paragraphs 26 and 27 of PPS10 provide:
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“In considering planning applications for waste management facilities, waste planning authorities should concern themselves with implementing the planning strategy in the development plan and not with the control of processes which are a matter for the pollution control authorities. The planning and pollution control regimes are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment to the lowest practicable level. It also ensures that ambient air and water quality meet standards that guard against impacts to the environment and human health. The planning system controls the development and use of land in the public interest and should focus on whether development is an acceptable use of the land, and the impacts of those uses on the development and use of land. Waste planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced.”
325. Paragraph 30 expressly states that the detailed consideration of waste management processes and its implications on human health is the responsibility of the pollution control regime.
326. The EA has already granted the permit [CD/E1], so that the SoS can be assured that the EA is clearly satisfied that the applicants will operate the plant in accordance with both BAT and the stringent requirements of WID which are designed to avoid any impact on human health. Professor Howard agreed, when questioned, that in the circumstances it was plain that the EA was so satisfied.
327. EN-3 at paragraph 2.5.43 requires planning decision makers to assume that there will be no adverse impacts on health where the plant meets the requirements of WID. It follows in the light of the grant of the permit and Professor Howard’s agreement on behalf of KLWIN recorded above that national policy requires this inquiry to assume there will be no adverse impacts.
328. PPS10 further advises decision-makers to avoid carrying out their own detailed epidemiological and health studies and that they should instead draw upon Government advice and research as well as consultation with the relevant health authorities and agencies [CD/U5, para 31.] In this case there were no objections whatsoever from any technical consultee on health grounds (including the EA, NHS Norfolk, the FSA and the BC’s Environmental Health Officer). As we have identified above, the statutory consultees had the benefit of multiple air quality experts examining and reporting on this proposal as well as a detailed HIA [CD/PA7, Tab 3] before coming to their conclusions. Further, this is not one of those cases where the local health authorities merely issued a standard response placing reliance on others. Here, the NHS Norfolk involved itself in the detail. In its letter of 23 August 2011 it actively sought further work to be done [N12, App.4, NHS Norfolk letter dated 23 August 2011]. We note that with regards to health inequalities it is NHS Norfolk’s view that the proposal will be beneficial – this is directly contrary to some of the concerns expressed by third parties [ibid, para 4]. In its letter dated 29 February 2012, following the submission of further information that included a response to the points raised by the NHS, it stated its comments and concerns had been addressed and no further information or clarification was required [ibid, NHS Norfolk letter dated 29 February 2012].
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329. The statement in WS2007 that there is no credible evidence of adverse health outcomes for those living near incinerators could not make the Government’s position on the matter any clearer [CD/U24, para 22 of Chapter 5]. The Inspector at Ince Marshes regarded that statement as a full answer to those arguing against incineration of waste on the basis of the precautionary principle [CD/A22, IR, para11.24]. The HPA, the Government’s statutory advisor on health matters, has said that, whilst it is not possible to rule out adverse health effects with complete certainty, any potential damage to health of those living close-by is likely to be very small, if detectable [CD/H2]. Para 30 of PPS10 also states that modern, well-run and well-regulated waste management facilities operated in line with current pollution control techniques and standards should pose little risk to human health (CD/U5). Reliance was placed by objectors on the report by the British Society for Ecological Medicine of 2008. However, it has been widely criticised by, inter alia, the HPA and Professor Bridges in a supplementary paper dated 30 March 2013 critically examined its findings, concluding that it has not made any useful contribution to the understanding of possible health risks from modern incinerators.
330. Professor Howard’s evidence, as we have already identified, went beyond what is required for the analysis of health in the context of a planning determination. For that reason we do not address it in detail in these submissions. His concerns were threefold: uncertainty in modelling, (modelling is a technical matter for the EA. Moreover, Professor Howard’s evidence amounts to an attack on accepted practice (as he fairly acknowledged). Both the ADMS model and the worst-case approach are accepted and endorsed by the EA [as to the latter see, for example, CD/E6, p.7], particulate matter (see, in particular, C61, App.3) and the approach to monitoring dioxins. Again this is an attack on accepted methodology as Professor Howard accepted when questioned. The TDI is the basis on which regulators operate, not body burden. A planning inquiry is not the forum to attack that accepted practice. These all fall squarely within in the province of the EA. Professor Howard fairly admitted as much, when questioned. Professor Bridges deals with all these points in detail in his evidence and rebuttal (see, in particular, his detailed rebuttal of Professor Howard’s evidence (C63)). We note that the Inspector at Cornwall preferred the position of the EA to Professor Howard’s evidence. Also, the latest scientific paper on this issue (Reeve et al., BMJ Open Access Paper dated 21 December 2012), the authors and methodology of which Professor Howard spoke very highly when questioned, concludes on an analysis of pre-WID incinerators (and therefore plants that were permitted to emit much higher levels of pollutants) that there is “no evidence of elevated risk for individuals living in areas containing an incinerator compared to individuals living in matched areas without an incinerator” [C64, App.5]. That conclusion we submit is clear and wholly supports the HPA position statement.
331. Third parties have expressed concern about the regulatory performance of Wheelabrator Technologies Inc. in the United States of America. However, this matter has been fully investigated by the EA and it is satisfied that both Cory Environmental Management Limited and Wheelabrator Technologies Inc. have the necessary expertise to operate the facility in line with the stringent requirements of EU legislation and that the rigorous conditions on the EP allied to its own approach to enforcement will mean that the EP will be complied with. Again, this is a matter for the EA and they are plainly satisfied. However, the applicants have submitted a detailed response to the repeated allegations about Wheelabrator’s allegedly poor performance record in the US and which deals with these concerns [C16].
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Perception
332 The public’s concerns or perceptions in relation to health and air quality are themselves capable of being material considerations, whether or not they are objectively justified (Newport Borough Council v Secretary of State for Wales [1998] Env. L.R. 174). However, the weight that can be attributed to those perceptions will depend on whether or not the concerns are objectively held. Further, the Inspector at King’s Cliffe drew attention to the advice in the Annex to the now superseded PPS23 that for perceived risk to be material to a planning consideration there must be a clear demonstration of the land use planning consequences [CD/A24, para 7.33]. The substance of that advice is still relevant.
333. Here, there is no reliable evidence to suggest that perceptions of health risk are objectively justified or that there would be any land use planning manifestations arising from those perceptions of health risk.
334. We note that Professor Howard said that the public’s concerns were objectively justified but it was not clear on what basis he made that claim. His case was that there are actual health risks but this has never been accepted, at least as representing any material harm. His position is contradicted by AEA, AQ Consultants, URS, RPS, the NHS (here the NHS wrote a whole series of letters and were clearly actively involved in the process and, importantly, concluded that the proposal was likely to positively combat health inequalities in what is a deprived area) [N10, App.4. see the letter dated 23 August 2011, §8.4, in particular] the EA, the FSA, the HPA and the BC’s EHO. The public cannot simply turn a blind eye to the conclusions of these bodies. The Inspector’s approach at Ince Marshes is instructive. He said: “…the position giving rise to doubts in the mind of the public, concern over health effects of incineration of waste, is one that is in direct conflict with a position taken by the Government in a statement of national policy (paragraph 22 of Chapter 5 of Waste Strategy for England). Such a statement will not satisfy everyone but should act to allay anxiety amongst the public at large. My conclusion is that although the proposal raises public anxiety this should not carry great weight in relation to the planning decisions on the proposals before the Secretary of State.”[CD/A22, pp.11.28]
335. There are significant factors in this case that should ameliorate any concerns the public have. First, as we have already identified, the EA has issued the permit which it could not have done if the proposal was not WID compliant. It must be assumed that the EA will properly apply the pollution control regime. Secondly, the public have had full opportunity to express their concerns on this issue, both before and during the inquiry. The applicants have adduced expert evidence at this inquiry on both air quality and human health in an endeavour to allay concerns and provide assurance that these concerns have been properly evaluated. Thirdly, it is clear that the public’s views on this issue have been taken fully into account. As Dr Broomfield and Mr Palmer made clear, NCC considered health issues in detail and were fully aware of the public’s concerns when determining the application. Further, as the Inspector at King’s Cliffe noted the inquiry process itself provides a direct link between the public and the decision-maker so that the public will know that their views will be taken into account. Fourthly, in response to public concerns a section 106 obligation is in place to require the carrying out of additional air
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quality monitoring in the locality. For all these reasons, we submit that the perception of health impacts should not be accorded any significant weight in this decision.
336. This conclusion wholly accords with recent appeal decisions. The Inspector at Lostock concluded: “…public perceptions about the health risk from the proposal are capable of being material planning considerations. However, these cannot be considered to be objective on their own and to have any weight, these perceptions need to be justified by objective evidence.” [CD/A12, para 16.38] And: “Where the waste combustion generating station meets the requirements of WID and would not exceed local air quality standards, which have both been shown to be the case in this proposal, then it should not be regarded as having an adverse impact on health. Therefore little weight should be given to this matter.” [CD/A12, para 16.49]. See also, for example, Cornwall (which was in another deprived area) [CD/A6, paras 2097-2098], Shrewsbury [CD/A4, para 94] and Hartlebury [CD/A11, para 11.70].
Localism and the local poll
337. We recognise that the proposal is intensely unpopular locally (which is not unusual in the context of public inquiries of this nature). However, the fact that many local people object is not, in itself, a proper basis on which to refuse planning permission. Planning decisions are not to be taken on the results of plebiscites or because a proposal has attracted a large volume of objection. As Mr Hollister agreed, when questioned, it is not the weight of numbers who object but whether or not there are relevant planning objections. The Costs Circular 03/2009 makes this plain. (The Circular is due to be replaced and the SoS will need to have regard to any changes). It provides: “While planning authorities are expected to consider the views of local residents when determining a planning application, the extent of local opposition is not, in itself, a reasonable ground for resisting development. To carry significant weight, opposition should be founded on valid planning reasons which are supported by substantial evidence.” [CD/U19, para B21]
Further, the observations of the Inspector at the Wadlow Farm appeal [CD/A23, IR12.16] in relation to plebiscites are instructive: he concluded that applications cannot be determined simply on the basis of a poll of numbers in favour and numbers against and that such an approach would thwart many forms of development including many categories of public utilities which are perceived by those affected as unattractive neighbours but are nonetheless necessary for the largely silent wider community. Those remarks are particularly apt here. Although this proposal is objected to by large numbers of local people, its functions are of considerable county-wide significance and the SoS must, in reaching his decision, have regard to the wider public interest of enabling Norfolk to have the residual waste recovery capacity that it so urgently needs.
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338. Moreover, this issue has been addressed at numerous EfW inquiries. In all cases the Inspectors have concluded that if the objectors are afforded the opportunity to engage properly in a public inquiry then the requirement to give due regard to the local views will be discharged through that process, for example, Sinfin Lane [CD/A5, paras 133 and 135-136] and Middlewich [CD/A14, para 228] in which the Inspector acknowledged that the benefits of a similar proposal were more than local. Furthermore it should be recalled that, here, the application was called in as it was of more than local concern. See also King’s Cliffe [CD/A24, para 7.67]; Wadlow Farm, [CD/A23, para12.16]; and Liverpool [CD/A25, para 53] also refer,in which the Inspector held that public opposition itself is not a material consideration. At Lostock, the Secretary of State expressly found that adequate account had been taken of local views through the public inquiry itself [CD/A12, para 7.12 of the SoS’s DL]. Further, we note that at King’s Cliffe a petition and the results of a local referendum were submitted to the Secretary of State after the public inquiry. Both of these documents strenuously opposed the proposal. The SoS took them into account and concluded that they did not raise any new issue which would affect his decision or require further comment from the parties [CD/A24, para 5 of the Secretary of State’s DL].
339. Furthermore, the High Court recently rejected the contention that the Localism Act 2011 brought a fundamental change in approach to the determination of planning applications. The Court held that whilst the Localism Act made significant changes to the planning system, specifically by the removal of the regional tier of the plan making system and the introduction of neighbourhood plans, those changes did not eliminate the role of the SoS in determining planning applications opposed by local planning authorities or abolish the long-standing principles and policies by which such decisions are made. The new opportunities afforded to the public through the Localism Act is through the plan making system, not development control [Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin) at [55, 59-60 and 64-65]].
340. It is estimated that the public’s questioning of witnesses at least equalled in length that of the opposing main parties. The public could not sensibly or fairly now suggest that they have not been afforded the opportunity to participate fully in this inquiry.
341. The BC and KLWIN were sensible to place no reliance in their written evidence on the result of the local poll conducted by the BC in February 2011 (several months before the application). KLWIN in fact pursued the matter at the inquiry, although the BC did not do so to any great extent. As Mr Hollister confirmed, when questioned, his evidence was entirely silent on the BC’s own local poll. This disregard of the poll by the BC’s expert planning witness is a telling indictment of its relevance and reliability.
342. Mr Boldon analyses the local poll in some detail [C10, paras 7.24-7.40]. It is, of course, not binding. Moreover, there are a number of obvious flaws with the poll which undermine the results. First, it was conducted at a time before the applicants had begun their comprehensive community engagement programme, before the application had been made and before the EIA assessment completed. The poll was therefore premature and could not possibly reflect the views of the public on the specific application before this inquiry. Secondly, we submit that the ballot paper was plainly misleading. It characterised the facility as a ‘mass burn incinerator’ and made no reference whatsoever to its role as a generator of www.planningportal.gov.uk/planninginspectorate Page 85 Report APP/X2600/V/12/2183389
renewable energy. Thirdly, the supporting documentation contained only one side of the argument, for the reasons explained by Mr Boldon. and was couched in alarmist terms [C11, App.8]. In all these circumstances the outcome was wholly predictable and can be given little weight. Mr Boldon also records the early and vigorous campaign conducted against the proposal even before the local poll by the local newspaper that must also have influenced people’s views.
343. Moreover, the proposal is designed to serve the waste management needs of the County, not just King’s Lynn or the BC area. Mr Hollister agreed, when questioned, that in so far as it was relevant to take into account public opinion, in the circumstances pertaining to this application, it was right to consider the broader position and the views of residents of Norfolk as a whole and not just those within the BC area. Notably, the Secretary of State for DEFRA has concluded, whilst fully aware of the strength of local opposition within the BC area, that a broad consensus for the proposal exists in the County and, therefore, was able to confirm the award of the PFI credits [CD/J8]. Further the Inspector at Shrewsbury concluded that weight could be given to this [CD/A4, para 132]. This conclusion is supported by the ComRes survey that indicates that (despite the high opposition locally) some 65 per cent of people interviewed from across the County as a whole support the proposal. ComRes interviewed some 1,751 adults in Norfolk by telephone between 17 and 22 February 2011, 809 of whom were residents in the Borough of King’s Lynn and West Norfolk, the remainder were from the rest of other Norfolk [CD/PA11]. 65 per cent of the people in Norfolk supported the proposal. Perhaps, not surprisingly, of those within the Borough of King’s Lynn and West Norfolk, 62 per cent opposed it).
344. Finally, we note that in relation to call-in decisions for his own determination, the SoS’s policy is not to intervene in local issues: this application was called in as the proposal was deemed to have regional and/ or national significance. If, as we suggest, the issues raised at the inquiry are almost entirely local or, at most, sub- regional in nature, the Secretary of State ought to respect the conclusions of the elected members on the Planning Regulatory Committee who represent the interests of all the Norfolk’s residents. In other words, the local decision was to grant planning permission. We submit that there is no good reason to go against that decision.
Response to third parties
345. We have by this stage in our submissions addressed the great majority of third party concerns and, here, respond to only those few that remain.
Landscape and visual impacts
346. Mr Goodrum, the applicants’ landscape witness, said in evidence that the lack of objection on this ground was almost unique in his experience in the context of development of this nature. Mr Hollister agreed it was a common ground of objection to proposals such as this. Mr Goodrum explained that the reason no main party has raised a landscape objection to this proposal is due to the present and proposed surrounding land uses and the built form to accommodate those uses. KLWIN’s photographs of their model (W15a and W15b) show how well the EfW plant would nestle alongside the permitted Centrica B power station.
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347. We have already referred to the fact that the application site and its surroundings are unusually well suited to the development proposed being in an industrial estate already characterised by major industrial and infrastructure uses operating from large-scale buildings and plant and which include a series of chimneys and stacks. Further permissions for like uses and buildings have recently been granted. Moreover, as Mr Hollister agreed, Government policy recognises that development such as this would inevitably have landscape and visual impacts. We note too that the proposed development would not affect any designated landscapes.
348. It is an objection raised only by third parties. None of the main consultees objects to the development on landscape or visual grounds. Further CABE, the Government’s advisor on design matters at the time of the application, was also supportive of the proposal and of its design.
349. We submit that Mr Goodrum’s evidence is comprehensive and persuasive and should provide the SoS with confidence that he can conclude that the proposal’s landscape and visual impact would be acceptable.
350. Mr Goodrum reviewed the Landscape and Visual Impact Assessment (LVIA) included in the ES and carried out his own, including an assessment of cumulative impacts. He concludes that the development is acceptable in landscape and visual terms. He also carried out an assessment of effects on residential receptors within 1km of the site, concluding that living conditions in respect of the potential visual effects on residential amenity would not be adversely affected and thus judged the effects to be acceptable on visual grounds.
351. The only other person at the inquiry to provide some form of analysis as opposed to assertion in relation to landscape matters was Mr Morrish. However, there are only minor variations in judgments between Mr Morrish and Mr Goodrum. Mr Morrish is very much out on his own and the judgment of Mr Goodrum should be preferred.
352. Mr Goodrum further concludes that the proposed development complies with the relevant development plan policies on landscape.
353. Accordingly, there is no proper landscape and visual impact basis on which to refuse the Willows.
Adequacy of the Environmental Statement
354. The ES was prepared in accordance with Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 [CD/L2] (as amended) and was the subject of full scoping exercise.
355. Following consideration by the WPA and independent advisors retained to evaluate the ES, supplementary information was submitted addressing all the points raised. All requisite administrative procedures were followed in respect of the additional information. The ES is therefore both thorough and correct.
356. With regard to the PIC, this has been appropriately considered within the ES and in supporting information. In particular, it is considered fully in relation to potential flood risk and air quality impacts. The main objection expressed by third parties was that it should be treated as a sensitive residential receptor for the purposes of assessing noise impacts and emissions to air. This is not the case given the short- term nature of the detention arrangements at the facility. This is confirmed in the NCC Officer Report to committee and no objection has been received to this effect www.planningportal.gov.uk/planninginspectorate Page 87 Report APP/X2600/V/12/2183389
from the BC Environmental Health Officer following the review of relevant documentation by independent advisors.
357. The status of the PIC as a worst-case receptor for human health studies was also taken into account by the EA in their decision document. They concluded that the facility would not fulfil the worse case criteria given that individuals are unlikely to spend long periods at these locations continuously. The EA also pointed out that the consideration of maximum ground level concentrations for air quality modelling served to ensure that the risks to human health were properly considered [CD/E2, p.105]. Ms Franklin said that the average detention periods were longer than the 6 – 7 hours the EA had in mind. However, the average periods suggested by Ms Franklin were in the order of 9 hours. It is difficult to see how that could affect the conclusions of the EA or ES in any way.
358. It is well established that a claimant who seeks to quash a planning permission by reference to the adequacy of an ES faces a high hurdle. In Blewett v Derbyshire County Council [2003] EWHC 2775 (Admin), Mr Justice Sullivan (as he then was) dealt with such a case and held that the adequacy of an ES is a matter for the decision maker (subject to the decision being rational in the Wednesbury sense). He said: “Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of ‘full information’, but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the ‘environmental information’ of which the statement will be but a part.”[at pp68]. (Note: There was an appeal to the Court of Appeal (See [2005] Env. L.R. 15) but the appeal did not deal with the EIA issue).
359. KLWIN’s closing para 65 suggests that the environmental information concerning Centrica B’s air cooled condensors had been incorrect. However, whatever view is taken of the correctness of the material in the submitted ES, the inquiry has certainly been provided with the “full picture” on the relationship between Centrica B and the appeal pocedure: see C20 para 6.6- 20 and C24 para 1.1-11. It cannot be said, therefore, that the SoS has been deprived from taking the full and correct information into account.
Conditions and section 106 obligation
360. In the event that planning permission is granted, the inquiry has a set of agreed conditions. Although KLWIN participated in the inquiry session on conditions, it later submitted a document making further submissions and comments on the agreed conditions. The applicants have set out its response [C92 (amended version)] to these points in a note to the Inquiry and we do not rehearse that material here.
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361. As to the section 106 obligation, this has been executed and submitted to the Inquiry. The applicants submitted that the obligations it contained were not strictly necessary and so did not meet the tests in the Community Infrastructure Levy Regulations. NCC, however, contended that it did meet the legal tests. Accordingly, the Secretary of State will have to decide whether all or some or none of the obligations are CIL compliant and, to the extent they are, what weight should be accorded to them.
Benefits
362. The proposal would deliver a number of significant and tangible benefits which we submit should be given substantial weight. We have already covered these benefits in some detail but draw them together here in summary form. The facility would:
(i) Divert some 275ktpa of residual non hazardous waste from landfill, thereby avoiding the release of substantial quantities of harmful GHGs including methane and making a substantial contribution to combating climate change;
(ii) Directly accord with national energy policy and so help to diversify the supply of energy and provide dependable, dispatchable and distributed energy;
(iii) Provide Norfolk with valuable and much needed recovery capacity, enabling it to meet more sustainably its waste management capacity needs and thereby reduce its dependence on continued extensive landfilling in flagrant disregard of the waste hierarchy;
(iv) Represent a substantial saving to NCC in the cost of waste management by some £8-10M each year. Contrary to the BC’s submissions in closing [Ms Lieven QC, para 185], this is the direct consequence of recovering waste in the EfW plant rather than continuing with landfill;
(v) Help to reduce the cost of managing waste for local businesses by providing a more competitive method of waste management for C&I waste for which no landfill tax would be payable;
(vi) Export 21MW of renewable and low carbon energy to the local grid providing sufficient power for about 36,000 homes (i.e. more than the number of homes in King’s Lynn which has a population of approximately 40,000) [C10, para 9.8];
(vii) Be CHP enabled. The facility could not be more favourably located to exploit CHP;
(viii) Produce some 55ktpa of secondary aggregates from the bottom ash recycling facility which would help reduce the reliance on primary aggregates, husbanding them for future generations, as well as reducing the energy expended in winning such minerals;
(ix) In addition some 5ktpa of metals will be recycled from the IBA;
(x) Provide 40 jobs many of which will be locally sourced. In addition, a significant number – up to 300 – of construction jobs would be created. The facility would
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also support the local economy and indirect employment through the need for services, supplies etc; and
(xi) Provide a visitor and education centre, up to £100,000 per annum for a community fund to be used to support community led projects and a further £100,000 a year for the Waste Awareness and Education Programme (through the Contract).
Implications of refusal
363. Should this application be refused there will be major repercussions for the sustainable management of waste in Norfolk. The implications of a refusal should be viewed in light of the Government’s recognition of how pivotal the planning system is to the adequate and timely provision of required infrastructure [CD/U5, para 1] and the positive role the planning system has in delivering sustainable waste management [ibid, para 2], as well as the Government’s emphasis on early delivery. DEFRA set up the Waste Infrastructure Delivery Programme precisely for this purpose.
364. There are at present no residual waste treatment facilities operating within the County. As Mr Miles explains, there are no long-term sustainable waste management plans in place in the absence of the facility. There are only short- term contracts in place which expire in 2015 or 2016: one in relation to the MBT facility in Waterbeach, Cambridgeshire until 2015 but this facility was closed in September 2012 following a mechanical fault and is not expected to be re- commissioned until December 2013 [see C81, App.5]. There is also an agreement in place until 2015 to transport some MSW to the Allington EfW in Kent (see C80, para 3.4.4). These short-term contracts are only to be in place for a few years and in no way could be seen as a potential alternative to the facility or other long-term solution.
365. If the application is refused Norfolk’s residual waste will either need to continue to be landfilled or to be exported for treatment or landfilling out of County. The irony given the BC’s concerns about waste miles is that by 2015 over 85 per cent of Norfolk’s remaining landfill capacity will be at two sites in the BC’s area (Blackborough End and Feltwell) so that, in the event of a refusal, the waste is likely to be transported to King’s Lynn in any event [ibid, para 3.4.5].
366. If it is to be out of County it is likely to be transported over a considerable distance, even outside the East of England. Mr Miles demonstrates in his needs analysis that the capacity in the surrounding counties would be insufficient to take Norfolk’s waste. And, of course, NCC is currently transporting waste to Kent. This is indicative that his analysis is right.
367. Developing alternative strategic residual waste treatment facilities within the County will take considerable time. In planning terms a considerable number of steps will need to be taken: the identification and acquisition of an alternative site; the detailed design for the new facility; the scoping and carrying out of an environmental impact assessment; consultation with relevant consultees and with the local community; the preparation and submission of a planning application; its determination including the potential for an inquiry; the discharge of pre- commencement conditions; and the construction and commissioning of the facility. In Mr Miles’ experience and excluding any requirement for an inquiry to be held,
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such steps would be likely to require a minimum period of six years. This is entirely without consideration of the need to either revise the Contact or a re-procurement – and as Mr Boldon explains, this could take a considerable period of time and cost a significant amount - the cost of procuring the Contract was £3.570m to November 2012 [C81, App.11, J5, para 7].
368. It follows that the earliest date that an alternative residual waste treatment facility of comparable capacity to the facility could be operational will be beyond the end of 2018.
369. A refusal of planning permission would also have an adverse effect on businesses in Norfolk by the removal of an opportunity to have a cheaper and more sustainable means of residual waste management.
370. At Cornwall, the Inspector considered the implications of refusal and placed weight on both delay and increased costs. He said:
“Some of the implications of not proceeding with the CERC proposal have already been touched upon in the part of the conclusions of the report concerned with need. These conclusions point to the urgent need to meet targets in diverting waste from landfill and to manage waste further up the waste hierarchy, thereby meeting national targets and complying with European, national and local policy…
It is noted that the Inspector in his conclusions on the Belvedere EfW appeal attached considerable importance to the WDA’s evidence in that case on the financial penalties that would be incurred if the scheme did not go ahead. He concluded that the prospect of significant cost to the public purse from further delays if the contract had to be re-tendered had not been given the weight it merited. He went on to say that the uncertainty that would follow if the contract was re-tendered should be accorded considerable weight by the decision maker. I share this view and consider that in this case the financial repercussions of the CERC proposal not proceeding and the contract having to be re-tendered should be given very substantial weight.
Support for this view is provided by WS2007. In chapter 5, the document stresses the importance of reducing the costs of waste management. In addition, the establishment of the WIDP by DEFRA was done to improve investment and procurement by local authorities and to ensure cost effective and timely delivery of major elements of waste management infrastructure. It is clear from this that financial considerations are deserving of weight.” [CD/A6, paras 2105, 2110, 2111 and, generally paras 2105-2123.]
371. The SoS explicitly endorsed the Inspector’s conclusion on this issue and said that the financial implications of rejecting the appeal should be accorded substantial weight alongside the consequences of failing to meet targets, of not diverting waste from landfill and not managing waste in a more sustainable manner [ibid, SoS DL, para 27]. Now, of course, s.70 of the Town and Country Planning Act 1990 has been expressly amended to make local financial considerations a matter that must be taken into account in the determination of planning applications. The fact that DEFRA has awarded NCC a substantial amount of PFI credits (now known as waste
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infrastructure credits) to enable the contract between it and the applicants to go forward is of great significance and section 70 now requires the decision-maker to take that into account. It should be accorded considerable weight, especially given the particular scrutiny this project received from DEFRA on account of the large volume of objections and the fact that this project survived a previous cull of PFI projects deemed not worthy of continued support.
372. Here, the WDA estimate the cost of delay in this case as being between £8-10 million per year based upon existing waste management arrangements [C81, Appendix.11, J1-J5]. This constitutes a material consideration which should be taken into account and accorded substantial weight [as in eg. Cornwall CD/A6, IR2110 and DL27].
Planning balance
373. None of the issues raised by the BC is determinative of this application in its own right. Rather they are issues that must be weighed in the balance (insofar as they have any substance). The BC have not carried out this exercise properly. Mr Hollister purports to carry out such an exercise but the arguments in favour of the development are not properly assessed. He brushes over energy and climate change policies, whereas policy dictates that great weight ought to be given to the climate change benefits of the scheme and the generation of energy - both renewable and non-renewable energy - to the contribution of decentralised, home grown, dispatchable energy which assists in energy security and resilience. Neither does Mr Hollister appear to give the compelling and urgent need for the proposal any particular weight. Moreover, as he acknowledged, when questioned by Mr Cameron QC, the “significant harm” he identifies almost exclusively relates to policy issues rather than to actual harm on the ground. The applicants submit that, properly analysed and taking into account the benefits identified above, the planning balance falls decisively in favour of the grant of planning permission.
Conclusion
374. The facility positively addresses three global policy aims and the urgent need for infrastructure to achieve them: first, the provision of urgently needed residual waste recovery capacity critical for the diversion of waste from landfill; secondly, providing much needed renewable energy with excellent potential for exploitation of CHP, thereby increasing energy security and contributing to renewable energy targets; and, thirdly, displacing the carbon dioxide that would otherwise be emitted to generate energy and avoiding the harmful methane emissions that arise from landfilling with consequent climate changes benefits.
375. All these benefits would be delivered on a site that is admirably suited to this form of development. It would be operated by applicants who have already obtained the necessary permit from the EA and who are jointly and successfully operating the biggest EfW plant in the UK in one of the most densely populated parts of the country.
376. Furthermore, this application enjoys a number of presumptions in favour of the development being granted permission: first, it accords with the relevant provisions of the development plan and therefore enjoys the statutory presumption in favour of planning permission; secondly, the facility is sustainable development and
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accordingly benefits from the presumption in favour of such development under the NPPF; thirdly, it enjoys the presumption in favour of renewable energy development contained in paragraph 98 of the NPPF; fourthly, the proposal enjoys the presumption in EN1 [CD/U3, para 4.1.2] to grant planning permission for an energy generator which accords with the policies set out in that NPS; and fifthly, the facility is deserving of the favourable treatment required by paragraph 24 of PPS10 in relation to proposals on unallocated sites as a result of its compliance with that paragraph’s requirements.
377. Accordingly, this is an application that the SoS should clearly approve and should do so in the shortest possible timescale in view of the urgent and pressing need for the facility to commence operations.
The Case for Norfolk County Council
The main points are:
Introduction
378. The issues canvassed before the inquiry have been wide ranging, however it is important to bear in mind that the issue for the SoS to consider, is whether he should grant planning permission. This is not a general inquiry into wider waste management issues whether in Norfolk or further afield. When making a decision on a planning application, the decision maker should focus on the question of whether the development itself is an acceptable use of land, and on the impact of the use.
379. In this case much time has been spent examining the processes and emissions. Those processes and emissions are subject to approval under the pollution control regimes. It is to be expected that the SoS will follow his own policy in the NPPF [CD/U1, paragraph 122], and assume that these regimes will operate effectively. On the same theme, namely that considerations should be limited to land use planning, and in particular, whether the proposed development is an acceptable use of the land, although time has been spent at the inquiry on the identity and characteristics of the applicant, those matters should be given little weight.
380. The applicants are Cory Wheelabrator, and they have entered into a contract with the WDA; however any planning permission will not be personal to the applicants, but will run with the land. As a result issues relating to the details of the contract which the applicants have entered into, and the identity of the applicants, although relevant, should not be at the forefront of the deliberations.
381. A striking fact in this case is that independent experts who have investigated the proposal in detail have come to the conclusion that the proposal will not give rise to specific unacceptably adverse impacts on people, or on flora or on fauna. That point is demonstrated by reminding oneself of the BC’s position: a) They started with 12 grounds of objection [CD/M5, pp 34-36]. b) Those grounds, included landscape and visual impact, impact on Roydon Common SAC, adverse impact on investment, impact on residential amenity, and impact on air quality. c) None of those matters are now pursued. Those main opponents of the scheme are left with points of general principle (e.g. proximity, or impact on the hierarchy), not points based upon alleged adverse
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impact as a result of the proposed use of land in the particular location where development is proposed.
382. Before turning to the detail, it is important to bear in mind the decision making framework set by section 70(2) of the Town and Country Planning Act 1990 (“TCPA 1990”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”). Given those provisions I invite the SoS to first make a finding as to whether or not the proposal accords with the development plan to then go on to consider other material considerations.
383. If the proposal is to be treated as a recovery facility, there can be no doubt that it accords with the relevant policies in the development plan, and (in particular) policies CS4, CS5, CS6 and CS8 in the Minerals and Waste Core Strategy MWCS. The points made by objectors relating to proximity, hierarchy, assessment of need etc… are ‘other material considerations’. The real issue before this inquiry is whether any of those factors are sufficient to displace the indication given by the development plan. On the evidence, it is clear that other material considerations, taken as a whole, do not displace the indication given by the development plan (namely that planning permission should be granted), they reinforce it.
384. NCC’s case is in the format set out in section 70(2) of the Town and Country Planning Act 1990 and first address the development plan, then local finance considerations, followed by other material considerations. When considering other material considerations adopting the headings identified by the Secretary of State and by the Inspector [as set out in CD/X3].
The Development Plan
385. The relevant elements of the development plan are: a) The Norfolk Core Strategy and Minerals and Waste Development Management Policies Development Plan Document (MWCS) b) The BCKLWN Core Strategy (CS) c) The saved policies of the BCKLWN Local Plan (LP). The most relevant policies are contained in the MWCS. No party alleges any conflict with the saved policies of the BCKLWN Local Plan.
386. In considering compliance with the development plan at this early stage in my submissions, NCC will, inevitably have to rely upon some submissions which they will make later, for example those relating to the application of the R1 formula.
387. When considering the development plan and other policies the approach to be taken to construction of policies is to be borne in mind, namely that policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context, see Tesco Stores Limited v. Dundee City Council [2012] UKSC 13, at paragraph 18.
388. In their statement of case the BC alleged a breach of the following development plan policies: MWCS: CS5 and DM4 CS: CS08 The alleged breaches of DM4 of the MWCS and CS08 of the Borough’s CS turn on the BC making out their case on flood risk and, in particular, the sequential test. www.planningportal.gov.uk/planninginspectorate Page 94 Report APP/X2600/V/12/2183389
389. In evidence Mr Hollister accepted that there was no breach of the actual words of policy CS5, when questioned by Mr Philips QC, and he then resorted to an assertion that there was a breach of the intention that lay behind the policy. The case has been developed further in the BC’s closing submissions where it is submitted that CS5 has to be interpreted “purposively” [BC closings, para 90], and “objectively interpreted in context” [ibid, para 177(1)]. However, those submissions are not supported by the evidence called by the BC. a) Mr Hollister relies upon the reference to the proximity principle in paragraph 6.20 of the MWCS. b) The policy has been formulated taking the proximity principle into account. c) The throughput of the proposed development exceeds 10,000 tpa and it therefore falls within the definition of a major or strategic facility for the purposes of the application of the policy. d) The application site is well related (as defined in paragraph 6.25) to King’s Lynn. e) As acknowledged by Mr Hollister the policy wording is complied with. f) The reference to the proximity principle in paragraph 6.20 does not import some additional test into the policy, it provides the reasoned justification for it. g) If, as Mr Hollister contends, the siting of a 275,000 tpa facility at King’s Lynn would conflict with the policy, paragraph 6.23 of the reasoned justification would not have been included. Paragraph 6.23 notes that it is expected that a 275,000 tpa facility will be provided at King’s Lynn – if such a project was considered inconsistent with the policy that followed, 6.23 would have so indicated. It does not do so.
390. CS policy CS08: a) The policy states that the findings of the Borough’s SFRA will be used to guide development. b) The Borough’s SFRA takes account of defences and identifies the application site as lying within (present day) category (equivalent to zone) 1. c) Even if the flood maps for 2115 with climate change are taken (and the site is considered to fall within flood category 3), as the development falls within the ‘less vulnerable’ category [CD/U2: NPPF Technical Guide Table 2], and the development is therefore appropriate to the level of flood risk identified. d) As the development vulnerability type is compatible with the flood risk zone [ibid, Table 3], there is no requirement to demonstrate that the development contributes to regeneration objectives. e) There is no dispute as to the appropriateness of siting waste management facilities on the application site – it lies within an industrial area. f) Flood risk is fully mitigated. g) The requirements of the policy are therefore satisfied.
391. The contentions based upon failure to carry out an adequate sequential analysis, or based upon the suggestion that there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding are not made out, for the reasons given when considering flood risk. As a consequence there is no breach of MWCS policy DM4.
392. KLWIN did not call a planning witness. The closest their case comes to addressing the development plan was in the evidence of Dr Hogg. He alleged conflict with policies CS4 and CS8 of the MWCS (orally on Day 14). Dr Hogg’s analysis is entirely dependent upon his assumption that the proposal is to be considered to be www.planningportal.gov.uk/planninginspectorate Page 95 Report APP/X2600/V/12/2183389
a disposal facility. As he accepted, when questioned, if the proposed plant is properly to be regarded as a recovery facility, policies CS4 and CS8 are complied with. A certificate has now been granted by the EA [C77]; they are satisfied that the R1 formula will be met. As a result Dr Hogg’s argument falls, and his evidence no longer supports the view that CS4 and CS8 are not complied with. Quite the opposite, it demonstrates that the proposal accords with those policies.
393. Mr Burton alleged conflict with policy CS13. CS13, which is a policy which encourages waste developments to generate renewable energy on site. The EfW facility is, by its very nature, a net exporter of electricity and there can be no doubt that the policy is satisfied. The policy also encourages co-location with other nearby industrial and/ or residential users of heat – there could be few better sites than that application site – that element of the policy is complied with.
394. Subject to resolution of the flood risk sequential approach point (which is addressed later in these submissions), the evidence of witnesses called by those opposed to the development does not support a submission that the proposal can be considered to be contrary to any development plan policy.
395. Of course it is not individual policies which must be considered, it is the development plan as a whole. There is a danger of concentrating on the policies with which a development proposal is said to conflict, however it is the whole plan which must be considered.
396. In this case the proposal derives considerable support from, and makes a very significant contribution towards achieving the aims of, a large number of policies in the development plan. In particular, the proposal makes a significant contribution towards satisfying the requirements of policies CS3 and CS4. a) CS3 states that the strategy for waste management is to provide sufficient waste management capacity to meet the expected arisings of municipal and commercial and industrial waste. It states that provision is to be made to manage the quantities of non-hazardous waste set out in Appendix A. b) CS4 is the means by which the strategy set out in CS3 is to be met. The proposal will make a very significant contribution to achieving CS4’s aim that recovery facilities with a capacity of 370,000 tonnes a year are to be delivered in the period 2010-2015 (and a total of 703,000 tpa of capacity in the period 2010- 2020). c) It can be said with certainty that a decision to refuse planning permission would frustrate that policy objective.
397. Given that on proper analysis there is no conflict with policies relating to flood risk, the proposal complies with all material development plan policies.
398. Even if, contrary to NCC’s case, it was held that there was a conflict with policy DM4 of the MWCS, it would still be necessary to consider whether the proposal could be said to accord with the development plan when considered as a whole. The proposal would comply with policies CS3 and CS4. As a result of lack of unacceptable environmental, amenity and/or highway impacts, it also complies with all the other policies in the plan (including CS6, CS8). Given that without consent for the current application, the objectives identified in CS3 for the period 2010-2015 will not be met, the proposal would comply with the development plan when
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considered as a whole, even if it was held to be conflict with DM4. The policies that favour the application far outweigh any non compliance with DM4.
399. For those reasons, the proposed development accords with the development plan.
Local Finance Considerations
400. Section 70(2)(b) TCPA 1990 requires the SoS to take local finance considerations into account. Those considerations include a grant or financial assistance that will or could be provided to a relevant authority by a Minister of the Crown [See definition of ‘local finance consideration’ at section 70(4) TCPA 1990].
401. In this case the project has been awarded a provisional grant of £91m [C80, para 4.6.10].
401. Elizabeth Truss MP questioned whether the application of public funds (in the form of PFI credits) to the project can be justified – that is not a matter for this inquiry. A decision has been made on that issue by the Government.
402. The BC argues that no weight should be given to the PFI credits ‘Now that the planning application is being determined by the SoS ….’ [BC closings para 185]. The weight to be afforded to local finance considerations is, of course, for the decision maker, however the approach advocated by the BC would rob section 70(2)(b) of any force. Once a decision has been made to grant the PFI credits, unless and until withdrawn, those credits are available for a particular project, they make the project deliverable, therefore have land use consequences, and should be given significant weight. The BC submit [ibid, para 85] that section 70(2)(b) is not intended to “skew the planning balance” to take into account redistribution of public money. If ‘skew the planning balance’ is taken to mean that local finance considerations could tip the balance in favour of development, the BC’s submission cannot be correct. What is the point of a statutory provision which requires a matter to be taken into account, if that matter cannot make a difference to the outcome?
403. That grant has to be taken into account when determining the application and weighs in favour of the scheme. The fact that the grant for this project has been maintained, notwithstanding that PFI credits have been withdrawn elsewhere, makes it an even more powerful material consideration.
404. The argument that, in the event that PFI credits are not granted to this project, more money will be available for other schemes, is not a matter for this inquiry. Section 70(2)(b) makes local finance considerations, and the receipt of PFI funding in particular, a specific factor to be taken into account by the decision maker- he should do so.
405. Norfolk will not have the benefit of that grant if the application is refused.
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Other Material Considerations
Preliminary Issues
Need
406.The starting point, when considering issues relating to need, is provided by the guidance given at para 22 in PPS10. In this case there is an up to date development plan, namely the MWCS [CD/D1], and the application proposal is consistent with it. Therefore the applicant should not be required to demonstrate a quantitative need.
407. It is also important to bear in mind the guidance given in National Policy Statements (NPS) on energy. Those policy statements are relevant, notwithstanding that the proposal is not a NSIP. Their relevance is made plain, in EN-1 [CD/U3 at paragraph 1.2.1], and in the NPPF [CD/U1, para 3]. The NPSs make clear that applications for energy related development should be assessed on the basis that need has already been demonstrated [EN-1 at para 3.1.3 – CD/U3; EN-3 at para 2.1.2, CD/U4 ].
408. The NPPF takes a similar approach. The proposal is for renewable energy, and therefore the applicant does not have to demonstrate overall need (CD/U1, para 98 of the NPPF). In this case there is a recently adopted core strategy which identifies a need for recovery facilities (see MWCS policy CS4).
409. Those opposed to the scheme have sought to argue that the figures in the MWCS are out of date. However, in a plan led system it must be recognised that it takes some time to prepare a plan and that its evidence base will be founded on data collected some time before adoption. The evidence on which the MWCS is based is summarised in Appendix A to the plan. Further detail was provided to the Inspector who examined the MWCS, and can be found at CD’s G14 and G16. The Inspector held that the MWCS was based upon robust and credible evidence [CD/G9, para 33].
410. Despite the fact that they did not take issue with the figures in policy CS4 when making objections to the MWCS [N8 & N9], the BC now seek to question them. Mr Hollister’s alternative figures are set out in the tables in document K15. NCC will address Mr Hollister’s approach in more detail when considering the waste hierarchy, but it is appropriate at this point to note that his figures should not be relied upon as they are based upon predictions that apply to England as a whole and are not specific to Norfolk. a) That approach fails to take into account the different characteristics of Norfolk when compared to England as a whole; and b) It fails to take into account the different predicted household growth rates in Norfolk (acknowledged to be as much as 10,000tpa by Ms Jeffery, when questioned). c) It is clear from the guidance given in Annex D to the Companion Guide to PPS10, that account should be taken of an anticipated increase in households [CD/U6, Annex D para 8]. d) It is also clear from the draft revised RSS [CD/G2, p95] that different rates of change in MSW arisings are anticipated in different counties within the East of England region.
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411. In addition, the figures in the MWCS are based upon robust assumptions. In particular: a) the assumptions as to the proportions of household waste recycled and of residual municipal waste recovered are consistent with the WS2007 [MWCS, p 109, Table 8.3], and with the recycling target set in the rWFD [CD/L6, Article 11]; and, b) a 50% recycling by 2020 is realistic and appropriate, given the 2009-2010 rate of 43.5%, and the anticipated increase likely to arise as a result of kitchen waste collection services [CD/G14 para1.3.4.1].
412. However, even if Mr Hollister’s figures [K15, Table 2] were accepted, there would be no reason to depart from the indication given by the development plan. a) Mr Hollister’s figures for 2020/2021 are based upon an assumption that total MSW and C&I arisings will be 474,757 tpa, which is about 78% of the figure assumed in the MWCS (621,147 tpa). b) Mr Hollister assumes that residual MSW arisings will be 192,159 tonnes pa in 2020/2021.
413. Even if the actual residual arisings, and therefore need for recovery were about 78% of the MWCS figures, there would still be a need for substantial increase in recovery facilities. Without the application proposal, there would be no prospect of meeting the 2010-2015 requirement for provision of recovery facilities (even if 78% of the figure in CS4 were appropriate). Furthermore, the additional requirement to 2020 would not be met. In addition, if Mr Hollister’s figures for residual MSW arisings were accepted, they would still exceed the minimum tonnage provision in the contract (170,000 tpa) (the MWL contract is considered under the Waste Hierarchy).
414. As a result, even if Mr Hollister’s figures were accepted (and they should not be for the reasons given), they do not provide any justification for departing from the indication given by the development plan. Although there is no requirement for an applicant to demonstrate need, the fact that a need for the facility does exist is an additional material consideration (and a powerful one) in favour of the application proposal.
The R1 formula
415. In order to be considered a recovery operation falling within Annex II of the rWFD [CD/ L6], the R1 formula must be satisfied. It is not possible to carry out the R1 calculation based upon actual data unless the plant is operating. As a result any calculations carried out before the plant is built are necessarily based upon assumptions.
416. The applicants provided an R1 calculation in response to the County Council’s request for further information. That calculation showed that the plant comfortably exceeded the efficiency factor of 0.65 specified in Annex II to the rWFD; the figure was 0.756 [CD/PA11/2]. Mr Aumônier has recalculated the efficiency factor to test it, and also produced a figure in excess of 0.65.
417. At the time that the permit application was made, the applicants did not seek a ruling from the EA on the question of whether the proposed plant would meet the R1 efficiency factor. However, the recently issued (February 2013) Guide to the Debate document [CD/U32, para 52] indicates that an application can be made to www.planningportal.gov.uk/planninginspectorate Page 99 Report APP/X2600/V/12/2183389
the competent authority (the EA) in advance of construction and operation. Mr Aumônier told the inquiry that such an application had been made, and that he was absolutely confident (when questioned by Dr Hogg) that the plant will meet the R1 efficiency factor criterion. Mr Aumônier’s confidence was justified, as the EA has now certified that, based on the design data provided, the proposed plant will fall within the definition of an R1 recovery operation under Annex II of the rWFD [C77].
418. On the basis of that evidence the planning application should be determined on the basis that it is a recovery facility meeting the R1 criterion.
Combined Heat and Power
419. There can be no doubt that the application site is well located to enable both heat and power to be supplied. There is a good connection for export of electricity.
420. More importantly, the site lies adjacent to one of the most significant users of steam in Norfolk, the only major paper mill in the county, Palm Paper. The BC, KLWIN and other objectors seek to rely upon correspondence from Dr Palm of Palm Paper to support an argument that there is no realistic prospect of the facility supplying heat to Palm Paper. The correspondence does not support the objectors’ case.
421. As made plain in Dr Palm’s letter of 10th April 2012 [CD/Y6], Palm is aware of the controversial nature of the application proposal and remains ‘neutral’ – i.e. neither for nor (importantly) against. Palm is considering four options [ibid, p2]: a) Maintain the status quo; b) Acquire steam and/or power from the waste incinerator (should it be built); c) Acquire steam and/or power from Centrica B (should it be built); d) Gain steam and power from Palm’s own CCGT CHP plant. The choice, as to which option is to be pursued, is to be made “…as soon as in a few years time the alternatives are known …”[ibid, p2].
422. The fact that Palm is considering making an application for a DCO under the Planning Act 2008, and has submitted scoping report [K6], and sought advice from the National Infrastructure Directorate of the Planning Inspectorate [K5], does not indicate any departure from the four option strategy.
423. As Dr Palm himself stated in the 1st March 2013 newspaper report, there is nothing new which could be added to his previous statements [K5]. As Mr Boldon made plain, when questioned by the BC, Palm is adopting a prudent commercial position and putting itself in a good negotiating position and thereby protecting its commercial interests; it is not committing to any particular source of supply of heat and power. The lack of a contract to supply heat, when the CHP enabled plant is only at the planning application stage is, as noted by the Hartlebury inspector, far from surprising and is to be expected [CD/A11, IR 11.48].
424. Ms Franklin has submitted further information relating to Palm Paper’s application under the Planning Act 2008 but none of that information undermines or contradicts the statements made by Dr Palm, namely that his company has not yet decided which option to pursue. Likewise, the email submitted by Cllr Kemp [OBJ28/2](which states that Palm are not in negotiations with Cory) does not alter the position. www.planningportal.gov.uk/planninginspectorate Page 100 Report APP/X2600/V/12/2183389
425. It has been stated that Palm need 60 MW of electricity and 130 t/h of steam to cater for peak loads [K6, para 1.4]. Mr Boldon states that Palm’s averaged steam requirement is 72 tph, and that operating in full CHP mode the plant could provide 65 tph (90%) [C19, para 9]. URS point out that the scoping report for the Palm CCGT application suggests that their requirement is higher (100 tph in normal operations and 150 tph for short term peak loads [K6, as referred to in K36]).
426. Even if the facility provides less than is required by Palm it could make a significant contribution, and it does not rule out Palm taking a supply from the facility. Palm are already catering for their needs using their own boilers, and the options now under consideration offer ways of reducing reliance on imported energy– whether by taking some supply from the proposal, and/or some from Centrica B (which is CHP enabled)[CD/A15] and some from existing gas boilers (as stated by Mr Aumônier, in questions). In many ways, the fact that Palm has such a significant demand for steam, (which may outstrip the ability of the Willows to supply it) is a demonstration of how beneficial the co-location is. It is much to be preferred to the alternative, namely insufficient demand for steam.
427. The opportunity to export heat is not limited to the Palm Paper plant. The other developments planned for the area offer further opportunities. a) The BC emerging site allocations document contemplates both employment and housing development in the vicinity of the application site [C70, p 53, Figure 2]. b) NORA (a 48.5 ha site lying to the north of the application site) contemplates residential, employment, community and mixed use development [ibid, Fig 4 on p58]. c) The steam system of the proposed Centrica B power station could be combined with this facility [ibid, para 125].
428. As noted by the Sinfin Lane inspector [CD/A5 paras 37 and 38], the important point is that a plant is located so that potential customers for the heat are within easy reach. The opportunity to operate in CHP mode exists, and the site could not be better for taking advantage of that opportunity.
The opinion poll
429. The BC’s opinion poll is an indicator of local views, which should be taken into account when making a decision on the planning application, as recognised in the NCC’s officers report to the planning committee [CD/M1, para 7.418]. However, when taking into account the results of the poll it is important to remember that it was conducted in February 2011, before the planning application had been made in June 2011, and before any ES was available. As a result those polled had little or no information on which to base their opinion. In particular those who were concerned about local environmental effects would not have been able to consider the assessment contained in the ES, and would not have known that the BC, having taken advice from relevant experts, have concluded that they should not pursue any objection based upon local or wider actual environmental impacts (save in relation to flood risk) and that they should not pursue any objection based upon adverse impact on health. The fact that opinions were based upon limited or no application specific knowledge lessens the weight that can be afforded to those opinions.
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430. As noted in the recent DEFRA publication, ‘Incineration of Municipal Solid Waste’ [CD/U34, p38], public concern founded upon valid planning reasons can be taken into account when considering planning applications.
431. The weight to be given to the opposition revealed by the poll, and to public concerns, will depend upon the extent to which it is based upon valid planning grounds. The proper approach to take is identified in paragraph B21 of Circular 03/09 [CD/U19]: While planning authorities are expected to consider the views of local residents when determining a planning application, the extent of local opposition is not, in itself, a reasonable ground for resisting development. To carry significant weight, opposition should be founded on valid planning reasons which are supported by substantial evidence. Planning authorities should therefore make their own objective appraisal and ensure that valid planning reasons are stated and substantial evidence provided”.
432. That advice is of particular relevance in this case. Much of the opposition from local residents is based upon concern and fear related to emissions and the subsequent impact on human health and on nature conservation interests. Those issues have been the subject of careful consideration by NCC and applicants’ witnesses. Further, and perhaps more importantly, air quality impacts were, initially, raised as an objection by the BC. They took advice from specialist consultants, and in the light of that advice did not pursue their objections on that ground. Similarly the BC raised initial concerns relating to ecology, but upon reflection did not pursue them.
433. Although there can be no question that the concerns are genuine, they are not supported by substantial evidence, and therefore, in accordance with the policy guidance given, should be afforded limited weight.
Wheelabrator’s record in the USA
434. Much has been sought to be made of Wheelabrator’s record of environmental performance in the USA. Those concerns are capable of being relevant when considering environmental permitting, as the EP is granted to a named operator, however they are of very limited (if any) relevance when considering an application for planning permission.
435. The identity of the operator, and the allegations of non-compliance, were considered by the EA when determining whether or not to grant an EP [CD/E2,pp 93-94]. Save in certain limited circumstances (which do not apply in this case) planning permission is not personal, it runs with the land. As a result the identity of the applicant is of little or no relevance. It is the operations and the use of land which the applicant proposes which is relevant.
436. Given the fact that the identity of the proposed operator was considered by the EA under the Environmental Permitting regime, and given the fact that the application is not for personal planning permission, the SoS is invited to give little or no weight to the allegations relating to Wheelabrator’s operations in the USA.
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POPS Regulations
437. Attention was drawn to the approach taken by the Inspector in his report on the Rufford proposal [CD/A18, paras 1239-1340]. The Rufford inspector contemplated that consideration of alternative processes, techniques or practices and processes (as referred to in Article 6(3) of Regulation (EC) 850/2004), as set out in the EA’s decision document CD/E2 p66, fell for consideration in the planning process. The Secretary of State was careful to state that he had formed no view on whether such alternatives should be considered in the planning process [CD/A18, para 20].
438. It is clear that consideration of alternative processes, techniques or practices, as required by Article 6(3), is to be considered by the EA as competent authority and is not a matter that falls for consideration in the planning process. That submission is based upon: a) The law, in the form of Persistent Organic Pollutants Regulations 2007[CD/L14, the POPS Regulations]. The competent authority for the purposes of Regulation (EC) 850/2004 is the EA [ibid, Reg 3(1)(a)]. Article 6(3) is to be complied with by a person considering an application for a permit under the Environmental Permitting Regulations [ibid, Reg 4(1)(b)]. b) The advice contained in documents N34 and N35 (on implementation of the Stockholm Convention); and c) Good sense: it is the EA who have the expertise to consider alternative processes, techniques and practices.
439. In this case the EA have considered the POPS Regulations and the Regulation (EC) 850/2004, and have concluded that permit conditions deliver the requirement of the Stockholm Convention in relation to unintentionally produced POPs [CD/E2, p 66]. There is no need or requirement to consider the balance of production versus destructions of dioxins, or alternative processes, techniques and practices (relating to POPs) further in the context of this planning application.
Highway safety and congestion
440. A number of objectors have raised a concern that the proposal will lead to harm to highway safety and/or congestion (e.g. Mr Moore, Mr Doubleday, the Grimston, Congham and Roydon Residents Association). KLWIN and the BC do not object on highway grounds.
441. The impact on highways is considered in chapter 6 of the ES [CD/PA2] and in the Transport Assessment (TA) (Appendix 6 to the ES). a) There is predicted to be an increase of 4.5% of total daily traffic along High (Saddlebow) Road during operation [CD/PA2, para 6.8.8]. (There is predicted to be a peak hourly increase of 10.4% on High (Saddlebow) Road [CD/PA2, 6.8.10]. b) The assessments demonstrate that the generated traffic would have no discernible environmental impact on any part of the local road network [CD/PA2, 6.8.7, 6.8.9 and 6.8.11]. c) Relevant junctions have been assessed and shown to operate (in the operational phase) with spare capacity, and are predicted to continue to do so in future year scenarios [CD/PA3, Appendix 6 to the ES, para 8.10 ]. The construction phase will generate fewer HGV movements – ibid, Appendix 6, paragraphs 6.4.13 and 6.4.14. d) The proposal is acceptable in transport terms [CD/PA2, para 6.8.12].
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442. The highways authority and the Highways Agency accept the findings of the TA [CD/ M1, para 7.335]. There is no evidence to rebut the analysis set out in the transport assessment, namely that there will be no unacceptable impact on the highway network, whether by reason of environmental impact or impact on highway safety and congestion.
Alternative technologies
443. Ms Lisa Barnes appeared at the evening session on 23rd April 2013 to seek to promote her company. There appears to be little evidence that the technology referred to by her is practicable or viable [C73, paras 71 and 72]. The MWL proposals are addressed under the waste hierarchy.
444. KLWIN suggest that there is a proposal to export waste in the form of RDF to the Netherlands [W19]. Although the Council has considered this option, there is currently no facility in the County for achieving processing to RDF in sufficient quantities and the cost would be greater than the PFI contract.
SEA/EIA
445. Ms Crowther seeks to contend that there is a requirement for a strategic environmental assessment and that the ES (and further information) which has been submitted is deficient. The adequacy of the ES is dealt with below. SEA is required for plans and programmes which set the framework for future development consent of projects listed in Annex 1 and Annex II to the EIA Directive (such as the MWCS or the emerging WSSA DPD), not for individual planning applications such as this. EIA is required for the current application; an ES and further information is before the inquiry (Environmental Assessment of Plans and Programmes Regulations – regulation 5(1) and (2)).
The Main ‘other material considerations’
Flood risk and water quality
446. The following issues arise: a) Appropriate flood zone b) The sequential analysis c) Will the proposed development be safe? d) Will the proposal cause flood risk elsewhere?
447. Mr Kratz, on behalf of (Ms Phillips, Mr Greene, and Ms Oliver) also raised an issue relating to fear or perception of harm arising from flooding.
Appropriate Flood Zone
448. Policy DM4 in the MWCS states that the Norfolk District Councils’ strategic flood risk assessments should be used to inform decisions on waste management facilities. In this case the relevant SFRA is that produced by the BC. The BC’s SFRA contains two separate sets of maps showing current actual flood risk and estimated levels of actual flood risk in 2115 allowing for the predicted effects of climate change [CD/50, page vi]. By taking actual flood risk, account is taken of flood defences [ibid, para 5.13]. www.planningportal.gov.uk/planninginspectorate Page 104 Report APP/X2600/V/12/2183389
449. On the current actual risk mapping the Application Site falls within Category 1 [Figure 5.1 – sheet 6 of 11, reproduced at CD/PA3 Appendix 10.1].
450. The BC and the EA have agreed a protocol [CD/G53]. That protocol states that development proposals will be assessed against the 2115 climate change maps in the SFRA. Tidal hazard mapping is to be used (in addition to the SFRA) to inform flood risk assessments. The protocol contemplates that applicants can carry out their own modelling [ibid, para 10].
451. In this case the development proposed has a limited life. A proposed condition [C9C p 28, Condition 65] would require use of the plant for incineration of waste to cease 75 years after commencement, unless permanent cessation of waste incineration had already taken place. Another proposed condition [ibid, p24, C63] requires decommissioning and removal of the development following cessation of use.
452. The modelling provided by the applicants demonstrates that in 2090 the Application Site would still be protected by the existing flood defences [CD/PA2, ch 10 para 10.4.32]. If MWCS policy DM4 is applied (and it should be), and if the flood category or zone is derived from the SFRA, the application site falls within category or zone 1 throughout the lifetime of the development. Therefore it would not be necessary to carry out a sequential analysis. That is, effectively, the end of the matter.
453. Mr Robinson, on behalf of the BC, also raised issues relating to the Revised Combined SFRA [CD/G15] carried out by NCC for the purposes of plan making. Mr Robinson contended that, as NCC had combined district SFRA there was an inconsistency of approach as some districts (BC, Broadland, South Norfolk [C54, App4]) took account of flood defences, some had no flood defences (Breckland [ibid, App5]) and some (Great Yarmouth) did not take account of flood defences. The combined SFRA is entirely consistent with policy DM4 in the MWCS (the district SFRAs have been used), and as Mr Robinson accepted when questioned, the inconsistency alleged makes no difference to the sequential analysis carried out for the purposes of assessing the current planning application.
The Sequential Analysis
454. The EA originally objected to the application on the ground that no sequential analysis had been applied [CD/PA11, Appendix 1, p 101], and indicated that the site should be treated as falling into Flood Zone 3. As a result of that objection the County Council carried out a sequential analysis, treating the application site as lying within Flood Zone 3 (as advised by the EA) and stated in Mr Palmer’s oral evidence, and using the EA’s template [CD/M1, App 8 and N12].
455. The NPPF Technical Guidance (TG) [CD/U2, Table 2] indicates that development for waste treatment facilities falls into the ‘less vulnerable’ category, and can therefore be acceptable in flood zone 3a, subject to the application of the sequential test. The approach to be taken when carrying out a sequential test, is to consider whether there are “… reasonably available sites appropriate for the proposed development” [CD/U1, para 101], or as put in the PPS25 Practice Guide, “… there are no other reasonably available sites which could be considered as being suitable www.planningportal.gov.uk/planninginspectorate Page 105 Report APP/X2600/V/12/2183389
and appropriate for the development that is proposed, where the development could then be located.” [CD/U11, para 4.25]. It is important to note that the policy requires that sites be suitable and appropriate for the development that is proposed, not for thermal treatment in general.
456. The County Council concluded that there were no other reasonably available sites for the proposed development [CD/M1,App 8].
457. The test to be applied is that set out in paragraph 101 of the NPPF, namely are there reasonably available sites appropriate for the proposed development? The following issues have to be considered: a) Identify the proposed development. b) Consider whether there are sites which are appropriate for the proposed development. c) Consider whether those sites which are appropriate are reasonably available.
The proposed development
458. It is first necessary to identify the proposed development (or using the words in the PPS25 Practice Guide, “……the development that is proposed….” [CD/U11, para 4.25]). The proposed development is an energy from waste recovery facility capable of treating 275,000 tonnes of waste a year, and an incinerator bottom ash handling facility.
459. The BC sought to suggest that, as in their revised alternative site assessment (ASA) the applicant considered sites of 2.4 ha or more, and that as for the purpose of the ASA, the IBA processing facility was not considered essential [CD/PA11, App 4, para 2.4.1], a 2.4ha site should be considered for the flood risk sequential test.
460. However, as acknowledged by Dr Campbell, when questioned, the ASA and the flood risk sequential assessment are different exercises – the question is different. That different approach taken in the ASA and in the flood risk sequential approach, is apparent from the flood risk sequential assessment in the Part B environmental information- where the Harling Road, Snetterton site (despite being greater than 2.4 ha in extent) is assessed as being of “… limited suitability for the accommodation of the proposed development” [CD/PA11, App, p10-10].
461. There is no doubt that the proposed development to be considered for the purposes of applying the sequential test is as described in the application, and comprises an EfW facility (with a capacity to treat 275,000 tonnes of waste a year) and an IBA processing facility.
Sites – are they appropriate and reasonably available (Issues b) and c))?
462. Three sites are put forward by BC, namely: a) Harling Road, Snetterton b) Land west of William Frost Way, Costessey; and c) Broadland Business Park
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Harling Road Snetterton
463. The site is proposed to be allocated for energy recovery (including thermal treatment) as site WAS19 in the WSSA DPD.
464. The main issue to be considered is whether the site is appropriate for the proposed development. Two subsidiary issues arise, namely, can an EfW plus IBA facility be accommodated on the site, and can the site accommodate a 275,000 tpa EfW facility?
465. The proposed development is for an EfW plant and IBA facility on a site of 4.8 ha. The effective size of the WAS19 site is 2.6 ha [CD/G6, para 6.19.4]. It is clear that the Snetterton site cannot accommodate an EfW plant and IBA facility. As a result it cannot accommodate the development proposed. That fact is sufficient to rule out the Snetterton site when applying the sequential test.
466. The example given by the BC in their submissions, of a retail unit with a warehouse or a balancing pond, is not comparable [BC closings para 142-3]. It should be borne in mind, given the BC’s retail example, that the Tesco v. Dundee [2012] UKSC 13) case concerned a retail development, and concerned the issue of whether there was a suitable alternative site. Although that case depends on the words of the particular policies relating to retail use, the distinction drawn by Lord Reed (at paragraph 29) is of particular assistance: Provided the applicant has done so, however, the question remains, as Lord Glennie observed in Lidl UK GmbH v Scottish Ministers [2006] CSOH 165 at [14], whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site.
467. The decision-maker should not fall into the trap identified in Tesco and to ask the question: is there an alternative site on which to meet the need or deficiency? That is not the question which the policy requires to be asked. The question is whether there are reasonably available sites appropriate for the proposed development. The IBA facility is an integral part of the proposal and affects the way in which the proposal is operated, and its output. The contrast between the BC’s balancing pond example and the development proposed in this case demonstrates the point. The balancing pond mitigates impact of development, the IBA process area, by contrast, is an integral part of the proposed development.
468. Locating an IBA facility on a different site would not enable the use of the trucks which can be used at the application site [K36], and would require a different mode of operation. That is a factor which demonstrates that whilst a split site solution may accommodate an EfW and IBA processing facility, the nature of the development proposed would be different in form and in substance. As a result the Snetterton site is not appropriate for the development proposed.
469. The draft WSSA DPD allocation [CD/G26, para 6.19] gives an indicative capacity of 100,000 tpa for residual waste treatment.
470. The BC have produced two drawings [K35.2, K35.3] in order to attempt to demonstrate that the Snetterton site could accommodate a similar sized EfW facility to that proposed in the application. The applicants’ analysis suggests that there is www.planningportal.gov.uk/planninginspectorate Page 107 Report APP/X2600/V/12/2183389
insufficient room to accommodate an EfW plant [C18] on the Snetterton site. The front part of the site is leased to Lafarge [Plan, C18]. The suggestion that car parking be located in that area [K35-2, -3] would not be possible. As a result it would not be possible to provide an EfW with the layout shown in drawing K35-3.
471. The lengths to which URS [K37] (on behalf of the BC) have gone to respond to the applicants’ points, demonstrate how difficult it would be to accommodate an EfW facility capable handling 275,000 tonnes of waste p.a. on the Snetterton site. The fact that so many difficulties would have to be overcome leads to the conclusion that the site is not appropriate for the proposed development or even for the EfW element of it.
472. Given that the Snetterton site is not appropriate for the proposed development, availability does not arise. As a consequence it is not necessary to consider the correspondence from Norse Commercial Services and the BC’s rebuttal to it.
Land West of William Frost Way
473. This site is identified in the revised ASA [CD/PA11, App. 4 pp 73-78]. Proposed allocation WAS31 is located on the same industrial estate. At the WSSA Issues and Options stage site WAS31 was considered for EfW [CD/G27, p 116]. The EA objected to that allocation on the grounds of proximity to residents and to sensitive habitats [N13, App2]. The EA’s objection on ecological grounds was based upon proximity to the River Tud [C84, App 4]. Similar issues arise in relation to Land West of William Frost Way.
474. In addition the Land West of William Frost Way is close to a restaurant and to a pub, as stated by Mr Palmer in oral evidence. In any event, even if the Land West of William Frost Way was considered to be appropriate (it is not for the reasons given) it would be necessary to consider whether it was reasonably available.
475. The site is highly unlikely to be available. It appears to be in the same ownership[ ibid, App5] as another site at Costessey which (in the past) had been suggested by WRG for an incinerator. The email produced by Mr Wilkie (from Cllr East, dated 3 April 2013) states that no local landowners would sell, lease or rent to an incinerator company. The landowner concerned (the RG Carter group of companies) was consulted as part of the WSSA process and did not put the site forward.
476. The site is not appropriate and is certainly not reasonably available.
Broadland Business Park
477. This site is considered in the revised ASA [CD/PA11 Ap.4 pages 37-43]. The site is not appropriate for the proposed development, not least because it forms part of an expanding business park/urban extension proposed for a range and mix of uses, and as a large part of it is less than 250m from sensitive receptors (an established residential area). Planning for Waste Management [CD/U31, p 155], advises that facilities for thermal treatment should be sited at least 250 m from sensitive receptors.
478. The owners of the site are promoting a planning application for a sustainable urban extension including 600 dwellings. The district council have resolved to grant www.planningportal.gov.uk/planninginspectorate Page 108 Report APP/X2600/V/12/2183389
planning permission. In resolving to grant planning permission the district council have indicated that a condition restricting the height of buildings to 15m is to be imposed [see draft condition 14: document N45]. The reason stated for imposing that condition is to ensure compliance with a number of development plan policies. Those policies would apply to any other form of development, and would therefore preclude an EfW facility on grounds of height and consequent visual and landscape impact. As a result the site is not appropriate for the proposed EfW and IBA processing facility development.
479. Even if it was held that the site was appropriate, it not reasonably available. If the site owners were contemplating EfW development juxtaposed with their business park they could and would have advanced the site in the WSSA process – they have not done so. Furthermore they have obtained a resolution to grant planning permission subject to entering into a planning obligation. They are unlikely to release part of their site for an EfW facility when they have achieved a resolution to grant planning permission for a mixed-use scheme.
480. The sequential approach advocated in paragraph 101 of the NPPF seeks to ensure that needed development is not located in areas of higher probability of flooding when it could reasonably be located elsewhere. However the sequential test is not intended to allow speculative sites to be put forward in order to defeat planning application proposals. The approach set out in the policy recognises that it may be necessary to locate development in areas with a higher probability of flooding, and seeks to avoid that where reasonable to do so. However it would be a misapplication of the policy and approach to allow the guidance in paragraph 101 of the NPPF to be used to defeat an application on the basis put forward by the BC. To do so would prevent much needed development from taking place. Refusal based upon paragraph 101 of the NPPF should only occur when there is a genuine and realistic alternative where development can take place to meet the need, not, as in this case, a series of last minute suggestions which are subject to multiple uncertainties.
481. This is not a case where there are realistic appropriate reasonably available sites. To allow paragraph 101 of the NPPF to be used as a device to defeat this development proposal would not be consistent with the Framework, would not be consistent with the evidence, and would deprive Norfolk of a much needed facility to treat its waste.
Safety
482. Concerns have been raised in relation to on site safety of people, and in relation to the IBA processing area. Staff and visitors will either be able to leave the site, acting on appropriate warnings, or will be safe on the first floor of the North Land development [CD/PA10, para 9.2.26]. Flood risk warning and evacuation will be secured by proposed condition 64, which requires a Flood Warning and Evacuation Plan to be submitted and approved.
483. The storage area in the South Land could be affected by flooding in the event of a breach of the defences, but the risk of maturating IBA material becoming entrained is low [ibid, para 9.2.30], and the raw IBA storage bins will be sealed off with concrete barriers [ibid, para 9.2.31.]
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Flood risk elsewhere
484. As the site lies within an area protected from tidal flooding of the River Great Ouse and fluvial flooding from other watercourses, the possibility of increasing flood risk elsewhere will only arise if there is a breach of the defences.
485. The consequences which would arise, as a result of the development, following a flood breach can be considered by comparing the pre and post development flood hazard maps [ibid, Figures 9.1 and 9.2] or the pre and post development flood depth maps [CD/PA11, divider 9, appendix B]. It can be seen that there is very little difference to off site flood depths. The consequence of carrying out the proposed development is to increase the hazard level in a small area of Poplar Avenue. That increase occurs on part of a road. Any emergency vehicles will have to approach from roads which are subject to similar flood hazard levels and as a result there will be no material increase in off site flood risk.
Fear of flood risk
486. This issue was raised by Mr Kratz. Fear is capable of having an impact on the development and use of land and is therefore capable of being a material planning consideration. However, the weight to be given to that consideration is a matter for the decision maker. Given the lack of objective evidence to justify those fears, they can and should be given little weight.
Water Quality
487. The analysis of impact on water quality, so far as linked to health, demonstrates that relevant standards would be complied with [N30].
Conclusions
488. Once the information before the inquiry is considered, flood risk concerns are not such as to prevent the development proceeding: a) If actual flood risk is considered over the lifetime of the development the site can properly be regarded as falling within zone 1. To take a different approach, and not have regard to flood defences, would result in inconsistent decision making. Decisions made by the BC on planning applications made to them are to be judged against their SFRA, it makes no sense to take a different approach to applications which fall within the same administrative area merely because they are determined by a different LPA. b) If, the application site is considered to lie outside flood zone or flood category 1, the sequential approach is to be applied. The question to be addressed is that posed in paragraph 101 of the NPPF. The clear answer to the question is that there are no reasonably available sites appropriate for the proposed development. c) There will be no unacceptable risk to those on or off the application site.
489. Paragraph 101 of the NPPF is an important policy to consider, but it is not and should not be the sole determining factor. Even if the SoS rejected NCC’s submissions on the flood risk issue, and accepted that BC’s case that there is a reasonably available site appropriate for the proposed development, that would not, of itself, justify refusal of planning permission.
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490. As acknowledged by Mr Hollister in cross-examination, if the WSSA DPD is adopted and the application site is allocated as proposal WAS 65, the policy set out in paragraph 104 of the NPPF will apply, and the BC’s argument on the sequential approach to flood risk will fall away. If the WSSA Inspector recommends adoption of the DPD with WAS65 included, although the circumstances contemplated in paragraph 104 of the NPPF will not apply until adoption, the fact that the inspector has recommended adoption should carry very considerable weight, and in those circumstances the BC’s argument on the sequential approach in relation to this application can and should be given no weight. Even if the WSSA Inspector recommends against adoption of the DPD with proposal WAS65 included, the BC’s arguments on the sequential approach in relation to the Application Proposal fail, as there are no reasonably available sites appropriate for the proposed development. Further even if the Secretary of State considered that such sites did exist, he would have to balance that fact against the pressing need for recovery facilities, and the phasing policy in MWCS CS4. The need for the development would outweigh the fact that there is some other site on which development may be able to take place.
491. Refusal of planning permission on flood risk grounds is therefore, not justified.
Health and Perceived Harm
492. This section includes the impact on health, perception of harm, and safety in general (including fire). Fear of flood risk (as raised by Mr Kratz in his submissions on behalf Ms Phillips, Mr Greene and Mrs Oliver) is considered in the section on flooding.
493. Perception of harm or fear of harm, even if not objectively justified, is capable of being a material planning consideration - Newport BC v. Secretary of State for Wales [1998] Env LR 174 (see in particular page 181). Mr Kratz referred to Smith v. First Secretary of State [2005] EWCA Civ 859 at paragraph 9). However, for the fear to be given weight it must be based upon objective evidence.
494. There is concern about current levels of health in the vicinity of the application site and King’s Lynn generally (as expressed by Cllr Kemp, Ms Franklin, Ms Leamon, Mr Kratz on behalf of Ms Phillips, Mr Greene and Ms Oliver, and others), and fear about the potential impact of the proposed facility.
495. Concerns about impacts on health have to be considered in the context set by the relevant policies and in the light of the objective evidence before the inquiry. The policy context is set by the guidance given in PPS10, which states (at paragraph 30) that: “Modern appropriately located, well-run and well-regulated, waste management facilities operated in line with current pollution control techniques and standards should pose little risk to human health” and indicates that the implications for human health, if any, are the responsibility of the pollution control authorities.
496. The Health Protection Agency considered the impact of incinerators on health in their 2009 report [CD/H2]. It concluded: “28. Modern, well managed incinerators make only a small contribution to local concentrations of air pollutants. It is possible that such small additions could have an impact on health but such effects, if they exist, are likely to be very small and not detectable”. www.planningportal.gov.uk/planninginspectorate Page 111 Report APP/X2600/V/12/2183389
497. The HPA’s conclusion is re-stated in the most recent DEFRA documents [in CD/U32 paragraph 130]. The specific impacts of the proposed incinerator were considered by the EA. They concluded that the potential emissions of pollutants, including dioxins, furans and metals from the proposed facility are unlikely to have an impact on human health [CD/E2, para 5.3.4].
498. The BC’s EHO was consulted on the application. The EHO instructed expert consultants, Air Quality Consultants (AQC). The BC do not maintain an objection to the proposal on air quality or health impacts.
499. NHS Norfolk broadly supports approval of the application [letters N12, App 4]. Mrs Perryman asks you to give little weight to this support, however the formal position of the NHS, which aligns with the advice given by other bodies charged with protecting health and the environment cannot be lightly brushed aside. A number of specific concerns have been raised including those relating to the contribution of waste incinerators to levels of PM2.5.
500. Professor Howard (called to give evidence by KLWIN) takes three main points: a) Uncertainty of modelling estimates b) Assessment of particulate emissions; and c) The use of body burden (as opposed to TDI)
501. Despite his general criticisms, Professor Howard provides no alternative analysis to that set out in the ES.
502. Uncertainty of modelling estimates: a) Professor Howard argues that a range of modelling results within a confidence envelope should be provided so as to allow the reader to understand the range of uncertainties. b) The approach taken in the ES is, when considering uncertainties, to rely upon a worst case approach [N32, paras 3.1 and 3.2]. c) For example, when considering PM2.5 an assumption is made that all particulates emitted from the stack are PM2.5 [CD/PA2, para 7.5.29]. As agreed by Professor Howard, when questioned, the approach taken can properly be described as conservative. d) The approach taken is also consistent with the advice given by the EA [CD/E6 page 7], as also agreed by Professor Howard, when questioned.
503. Assessment of Particulate Emissions (PM2.5 in particular): a) The ES contains an evaluation of both the process contribution and the existing baseline. b) The process contribution is assessed at 0.07 μg.m-3 (micrograms per metre cubed) which represents 0.28% of the Air Quality Standard objective (of 25 μg m-3) [CD/PA2, para 7.5.29]. The baseline annual mean concentration is 10.7 μg.m-3, and as a result the predicted environmental concentration (of 10.77 μg.m-3) is well below the target value of 25 μg.m3 [ibid, para 7.5.30].
504. Professor Howard did not produce his own evidence as to either baseline or process contributions of particulates. He made two main points, that there was uncertainty
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as to likely particulate emissions from incinerators and that number not mass of particulates was important. a) In support of the first point, Professor Howard has referred to a number of papers in which impact of incinerators on particulate levels has been considered. i) As explained by Dr Broomfield [N32, paras 3.4-3.12] the differences between the Aboh paper and the findings set out in the ES, are mainly due to acknowledged shortcomings in that paper and its interpretation by Professor Howard. ii) Professor Howard said he had not read all the papers referred to by Dr Broomfield [ibid, para 3.9] and confirmed when questioned that there was considerable uncertainty with the principal component analysis in the Aboh paper.
505. Professor Howard also accepted that the relevant air quality standard, which is derived from the EU Directive 2008/50/EC, Annex IV, [CD/L17] is expressed in terms of mass, and that therefore any analysis of whether the standard is complied with has to be based upon the mass of the predicted process contribution. There is no evidence to contradict the analysis in the ES that, on the basis of the conservative assumption that all particulates emitted will be PM2.5, that the maximum process contribution is 0.28% of the relevant AQS, and that the predicted environmental concentration (10.77 μg.m-3) will be well below the relevant standard of 25 μg.m-3.
506. The use of TDI was considered by the EA in their decision document; they considered it an appropriate approach [CD/E2 pages 66 and 95]. The reasons for using the TDI approach are explained in Professor Bridges’ rebuttal evidence [C63 pages 15-18].
507. Cllr Kemp has drawn attention to health issues in the local area. The current health and socio-economic profile of the local population are considered in the HIA submitted by the applicants [CD/PA7(3)]. There is no evidence that the proposed facility will have any significant or detectable impact (adverse or otherwise) on health in the vicinity of the Application Site.
508. Richard Howitt MEP [OBJ162/1, p8] stated that NCC has acquired a statutory duty to improve health and tackle health inequalities. He was asked to identify the particular statutory duty relied upon. He has subsequently drawn attention to the duty imposed by section 1 of the Health and Social Care Act 2012 and to a 2010 White Paper [OBJ162/1a]. It should not be noted that Mr Howitt, despite raising the issue, and despite being asked to do so, has not identified a particular duty that applies to NCC (or the SoS) in the exercise of their (or his) functions under the Town and Country Planning Acts. The duty created by section 1 of the 2012 Act is imposed upon the SoS, not a county council. Section 4 does impose a duty on the SoS to have regard to the need to reduce health inequalities between the people of England with respect to the benefits that they can obtain from the health service. That duty applies ‘in exercising functions in relation to the health service’, not to the determination of planning applications. Local authorities are given various public health functions. Again Mr Howitt has not referred to any particular provision which imposes a duty to reduce health inequalities when performing functions under the Planning Acts.
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509. Mrs Beate Knights and others have raised concerns relating to safety. Mrs Knights referred to evidence of fires at facilities elsewhere in Europe, and in Germany and Austria in particular. These issues relate to and arise from the proposed operation of the facilities and are therefore a matter for the permitting authority, the EA. Further the fire service was consulted by NCC; their response is summarised at paragraph 6.78 of the officers’ report [CD/M1]. They did not object.
510. Dr Devulapalli, despite her medical expertise, does not provide any objective evidence on health issues, she refers in the main to anxiety related to concerns about health. She requests that the decision be deferred pending receipt of a report which has been commissioned by the HPA and which is expected in April 2014. It is noteworthy that the HPA themselves have not made that request, and its position on waste incineration remains as set out in CD/H2. The report is not specific to this project, and there is no reason to delay a decision and to wait for that report.
511. A DVD on health effects in Ostrava, in the Czech Republic, was submitted to the inquiry by Mr Wilkie. It is about general air quality in Ostrava, and does not mention incinerators at all; it is not relevant [C64, section 4].
512. Mr Peter Knights expressed concern about the impacts on local agriculture, and on blueberry production in particular. Those potential impacts are considered in the ES [CD/PA3, App 7, para 7.3.13, where a blueberry farm was considered as a receptor], and it was concluded that the potential to produce emissions would pose no unacceptable risk to farmer receptors identified in the vicinity of the application site [ibid, para 7.4.9].
513. Given the degree of scrutiny that incinerators in general, and the proposed facility in particular, have received, it is noteworthy that there is no objective evidence that the proposed facility would have an adverse impact on human health. Given the lack of objective evidence to justify the concerns, and given the fact that those making decisions on planning applications should proceed on the basis that other regulatory controls can be assumed to operate effectively, there is no justifiable reason to refuse the application on grounds of impact on human health or on the grounds of perceived harm arising from concerns about emissions, and their impact on health.
Ecology
514. The main concern expressed by those opposed to the development relates to the potential impact on the Roydon Common and Dersingham Bog, and on The Wash. Despite the BC’s initial position they took[CD/M3 RR7 & M5 RR A(2)], they do not now take any point relating to ecology/nature conservation interests.
515. The Habitats Regulations and Directive (potential impact on European and Ramsar sites): law and policy The SoS is the competent authority for the purposes of the Conservation of Habitats and Species Regulations 2010 (“the Habitats Regulations”). Article 6(3) of the Habitats Directive [CD/L12, 92/43/EEC] makes provision, in certain specified circumstances, for appropriate assessment to be carried out before granting consent for projects. The Habitats Directive is transposed in to domestic law by the Conservation of Habitats and Species Regulations 2010 (“the Habitats Regulations”) [CD/ L11]. Regulation 61(1) of the Habitats Regulations provides: www.planningportal.gov.uk/planninginspectorate Page 114 Report APP/X2600/V/12/2183389
61.— Assessment of implications for European sites and European offshore marine sites (1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
516. Roydon Common and Dersingham Bog SAC, The Wash and North Norfolk Coast SAC, and The Wash SPA are European sites to which Article 6(3) applies. Roydon Common is a Ramsar site, as is The Wash. The Dersingham Bog component of the Roydon Common and Dersingham Bog SAC is outside the zone of influence (being in excess of 10km from the application site)[CD/PA11, App 7, para 4.1.2]. As a matter of policy the Government has decided that the procedures applicable to European sites should also be applied to Ramsar sites [CD/U12].
517. The test to be applied when considering whether an AA is required is that set out in the Waddenzee case [CD/L15, Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2005] Env. L.R. 14 at paragraph 45: 45 In the light of the foregoing, the answer to Question 3(a) must be that the first sentence of Art.6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.
518. In Hart DC v. Secretary of State ([2008] EWHC 1204 (Admin), Sullivan J considered the application of the principles established in Waddenzee. He considered the meaning of “likelihood” and stated: 78 To an English lawyer, a need to establish a likelihood imposes a more onerous burden than a need to establish a risk. The concept of a “standard of proof” is of little if any assistance in environmental cases, but the nearest analogy would be the difference between the balance of probability (more likely than not) and the real risk standards of proof. Since the ECJ's decision in Waddenzee, it has been clear that, applying the precautionary principle, significant harm to an SPA is “likely” for the purposes of Art.6 and reg.48 if the risk of it occurring cannot be excluded on the basis of objective information. Since the Waddenzee test is set out in Circular 06/2005 , which was specifically referred to in para.10 of the minded to grant letter, which was in turn incorporated into the decision letter (see para.6 of the latter), and Circular 06/2005 is also referred to in NE's Draft Delivery Plan (para.1.5.3), it is impossible to conclude that, when using the correct statutory formulation, both the first defendant and NE did not appreciate that the issue of likelihood had to be approached on the basis set out in Waddenzee .
519. In Hart the Inspector found that the probability of the proposed development having an effect on the SPA could not be discounted and therefore concluded that an AA was required. NE was of the view that no AA was required. The Secretary of
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State did not accept the inspector’s view on this issue and followed NE’s advice, coming to the conclusion that no AA was required. At paragraph 81 Sullivan J held: 81 The first defendant was entitled to prefer NE's view to that expressed by the Inspector. The fact that the Inspector had expressed “serious doubts” about EPR's conclusion that the measures incorporated in the package, including the SANGS, would avoid any net effect of recreational activity on the SPA (para.12.9 of the Inspector's Report) did not mean that the first defendant was obliged to accept that there were such doubts, or that they could not, as NE had concluded, “be excluded on the basis of objective information”: see, for example, R. (on the application of Merricks) v Secretary of State for Trade and Industry [2006] EWHC 2698 (Admin) at [6]. Merely expressing doubt without providing reasonable objective evidence for doing so is not sufficient.
520. The European Commission have given guidance on the provisions of Article 6 of the Habitats Directive in “Managing Natura 2000”[CD/Z3]. Paragraph 4.4 of the guidance provides advice on how to determine whether a plan or project is likely to have a significant effect on a European site, either alone or in combination with other plans or projects. Paragraph 4.4.1 provides advice on the approach to be taken to the word “significant” and states: While there is a need for objectivity in interpreting the scope of the term ‘significant’, clearly such objectivity cannot be divorced from the specific features and environmental conditions of the protected site concerned by the plan or project. In this regard, the conservation objectives of a site as well as prior or baseline information about it can be very important in more precisely identifying conservation sensitivities. Some of this information will be present in the data that accompanies the site selection process under Article 4 of Directive 92/43/EEC (see Section 4.5.3). Member States may also have available detailed site conservation management plans which describe variations in sensitivity within a site.
521. National guidance on the approach to be taken at the screening stage is set out in paragraphs 13 to 16 of Circular 06/05 [CD/U12]. The approach to be taken when carrying out an appropriate assessment (AA) is that identified in the Waddenzee case [CD/L15]: 52 As regards the concept of “appropriate assessment” within the meaning of Art.6(3) of the Habitats Directive , it must be pointed out that the provision does not define any particular method for carrying out such an assessment. 53 None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives. 54 Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. Those objectives may, as is clear from Arts 3 and 4 of the Habitats Directive , in particular Art.4(4), be established on the basis, inter alia , of the importance of the sites for the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I to that directive or a species in Annex II thereto and for the coherence of Natura 2000, and of the threats of degradation or destruction to which they are exposed. 55 As regards the conditions under which an activity such as mechanical cockle fishing may be authorised, given Art.6(3) of the Habitats Directive and the answer www.planningportal.gov.uk/planninginspectorate Page 116 Report APP/X2600/V/12/2183389
to the first question, it lies with the competent national authorities, in the light of the conclusions of the assessment of the implications of a plan or project for the site concerned, to approve the plan or project only after having made sure that it will not adversely affect the integrity of that site. 56 It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned. 57 So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.
522. Further guidance on the approach to be taken at the appropriate assessment stage was given by the CJEU in Sweetman v. An Bord Pleanala (C258/11, at paragraph 48 of the judgment given on 11th April 2013): It follows from the foregoing considerations that the answer to the questions referred to is that Article 6(3) of the Habitats Directive must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of SCIs, in accordance with the directive. The precautionary principle should be applied for the purposes of that appraisal.
Other duties
523. Section 28G(2) Wildlife and Countryside Act 1981 imposes the following duty when exercising functions so far as their exercise is likely to affect the flora, fauna or geological or physiographical features by reason of which a site of special scientific interest is of special interest: (2) The duty is to take reasonable steps, consistent with the proper exercise of the authority's functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest.
524. Section 40(1) of the Natural Environment and Rural Communities Act 2006 provides: Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.
The EA Guidance
525. The EA provide the following advice [CD/E6, p18]: Screen out insignificant process contributions Short-term and long-term process contributions should be screened against relevant standards provided in Appendix B. Process contributions can be considered insignificant if: • the long term process contribution is <1% of the long term environmental standard; and, • the short term process contribution is <10% of the short term environmental standard www.planningportal.gov.uk/planninginspectorate Page 117 Report APP/X2600/V/12/2183389
The facts
The approach to be taken by the Secretary of State
526. It is clear that it is for the SoS, as competent authority, to form his own view on whether the risk of a significant effect can be excluded. That view must be based upon objective information.
527. The potential impact on European sites (including Roydon Common/Dersingham Bog, and The Wash) has been the subject of most careful consideration. That most careful consideration has led all the relevant authorities to conclude that the proposals will not adversely affect the integrity of European sites, whether because such effects can be screened out or in the case of Norfolk CC, following an appropriate assessment (AA).
529. Natural England (NE) is the appropriate nature conservation body [CD/L11, Conservation of Habitats and Species Regulations 2010, regulation 5(1)(b)] for the purposes of the Habitats Regulations; it is they who must be consulted when a competent authority carries out an AA [ibid, Regulation 61(3)]. NE advised that the proposal is not likely to have a significant effect on the relevant European sites (Roydon Common and Dersingham Bog, and The Wash) [Letter CD/S2 from NE dated 24th February 2012]. The EA also considered the potential impact on European sites, on SSSI and on non statutory sites. They concluded that there would be no likely significant effects [CD/E2, 5.4.2-5.4.4]. NCC, who at the time the planning application was before them, was the competent authority took the matter one stage further and carried out an AA. The conclusion of that assessment was that the proposals whether alone or in combination would not adversely affect the integrity of the European sites [CD/Z10, para 10.5].
530. The issue for the SoS is whether he should reject the advice given by NE and the EA in the light of the criticisms made by KLWIN and others. It is also necessary for the SoS, as competent authority, to determine whether he should carry out an AA. It would be open to the SoS to follow the advice of NE and the EA and to conclude that, on the basis of objective information, the risk or probability of an effect on a European site can be excluded and that no AA is required. Alternatively, if the SoS follows the approach taken by the County Council, he has sufficient information before him to carry out an AA.
Potential effects
Roydon Common
531. The way in which the proposed development could affect Roydon Common arises as a result of emissions to air leading to: a) An increase in the atmospheric concentrations of oxides of nitrogen, sulphur dioxide and ammonia; b) Acid (nitrogen and sulphur) deposition; c) Nutrient nitrogen deposition.
532. In order to consider potential impact it is necessary to consider environmental quality standards, the existing or background levels, the process contribution and www.planningportal.gov.uk/planninginspectorate Page 118 Report APP/X2600/V/12/2183389
predicted environmental concentrations. The relevant information is provided in the ES and the Part B further information. It is important to note that no alternative analysis has been provided by those opposed to the scheme. Save for the criticism (by KLWIN) of the approach taken to dispersion modelling, there has been no attempt to question the approach taken in the ES. KLWIN’s points on the dispersion modelling are discussed when considering the adequacy of the ES.
533. Mr Hughes’, for KLWIN, evidence provides little assistance to the inquiry. He agreed, when questioned, that the EA approach to screening [CD/E6, pp18-19] and the APIS critical load functions were appropriate. His only point appeared to be that the output of the dispersion modelling could not be relied upon; for that point he relies on Mr Bramwell. His contention that in combination effects (and in particular the effect of emissions from the proposed Centrica B generating station) had not been considered was based upon a lack of knowledge of the material before the inquiry. It is clear that emissions from Centrica B were considered in combination with the process contribution [CD/PA11, App 7, para 8.10 and N30, para 7.4.9].
534. Mr Stevenson, despite his knowledge of bryophytes and of Roydon Common, gave little evidence which goes to the main issue before the inquiry, namely whether the emissions from the proposed development are likely to have a significant effect on Roydon Common having regard to the conservation objectives for the site. Although Mr Stevenson expresses concern about the basis upon which critical loads have been set, he provides no alternative figures, and all other relevant witnesses have accepted the APIS figures.
535. The conservation objectives [C31, App C1] all relate to the qualifying features. The central issue to consider is the impact (if any) on those qualifying features. As habitat 7150 is more sensitive to acid deposition than the other qualifying features, the focus has (quite rightly) been on that habitat.
536. All relevant process contributions are below 1% of the relevant critical load or critical level.
Acid Deposition
537. The maximum predicted acid deposition arising as a result of the process contribution at Roydon Common SAC and Ramsar site, is assessed as being 0.97% of the relevant critical load function [CD/PA3, Ecology Note 3.15]. The NWT have agreed that the maximum process contribution in areas where habitat H7150 may be present is 0.9% of the CLF. The critical load function provides an envelope of protection [C34, App1, diagram at para 3], and the assessment was carried out using the lower range of the envelope. Applying the guidance given by the EA [CD/E6 pp17-18] (as set out above), the process contribution can be considered to be insignificant.
538. Both Natural England [C31, App K2, letter from NE to NCC] and the EA [CD/E2 page 43] consider the process contribution to be insignificant and have taken the view that the effect can be ‘screened out’ for the purposes of the Habitats Regulations, and that as a result there is no need for appropriate assessment. Norfolk CC did carry out an AA [CD/Z10] and in doing so were advised by AEA; they concluded that, on the basis of objective evidence, that they could be certain www.planningportal.gov.uk/planninginspectorate Page 119 Report APP/X2600/V/12/2183389
that the proposed development would not adversely affect the integrity of the Roydon Common SAC and/or Ramsar site having regard to the conservation objectives.
539. Mr Boyd of NWT has criticised the AA that was conducted. Mr Smithers has responded to that criticism in his rebuttal evidence [N42, section 1]. The main criticism that Mr Boyd makes is that Mr Smithers refers to a report on the condition of the common prepared by Dr Denyer [CD/PA11, App7, Annex]. However the AA does not rely upon Dr Denyer’s condition assessment. The section on current and likely future condition of Roydon Common refers to the NE assessment [CD/Z10 paras 6.10-6.13]. The AA is not dependent upon either assessment.
Nutrient Nitrogen Deposition
540. In cross examination of Mr Smithers, KLWIN concentrated on nutrient nitrogen deposition at Roydon Common. There is no dispute that levels of nitrogen deposition are likely to have important implications for the conservation and long- term sustainability of nutrient-poor ecosystems [W412, App12, para 5 of the summary].
541. In this case the Annex I habitat feature at Roydon Common, namely H7150, has been assessed by the JNCC for the purposes of preparing an Article 17 Habitats Directive report [OBJ36/3], and found to be favourable condition [ibid, p9], and is predicted to remain in favourable condition in the future [ibid, p15].
542. The maximum predicted process contribution is 0.36% of the minimum critical load [CD/PA11 Appendix 8 Table 1.13]. The source attribution information in the nitrogen and sulphur deposition forecasts for Roydon Common SAC (as produced by APIS) show that deposition is dominated by larger scale sources remote from the site [N42, 1.18 and App 2]. The figures in that Appendix show that the predicted reduction in nitrogen deposition will far outweigh any contribution from the proposed development. The anticipated reduction in nitrogen deposition is consistent with past performance (as is evidenced by the information in the ROTAP report [W12, p 12]. As Mr Boyd agreed, when questioned, the annual process contribution made by the plant will be eliminated by the reduction in nitrogen deposition which has taken place during the course of the inquiry. The process contribution is 0.036 kg N/ha/yr. The pie charts at N42 App2 show a reduction in nitrogen deposition from 17.8 kg N/ha/yr in 2005 to 12.88 kg N/ha/yr in 2020, a reduction (if linear) of 0.308 kg N/ha/yr. The maximum annual process contribution is about 11% of the annual reduction.
543. There is no basis for any concern in relation to deposition of nutrient nitrogen at Roydon Common (or anywhere else).
The Wash
544. The potential impact on The Wash has also been considered. NE and the EA considered that effects could be screened out. NCC’s AA concluded that they could be certain that the proposed development whether alone [CD/Z10, para 7.13], or in combination with other plans or projects [ibid, para 8.2], would not adversely affect the integrity of the Wash SPA/Ramsar and The Wash and North Norfolk Coast SAC having regard to the conservation objectives. www.planningportal.gov.uk/planninginspectorate Page 120 Report APP/X2600/V/12/2183389
Mr Boyd (Norfolk Wildlife Trust)
545. NWT manages the Roydon Common site and therefore has particular knowledge of its conditions. NWT has agreed a number of matters with the applicant as recorded in a statement of common ground [CD/X6].
546. Habitat 7150 is given as a primary reason for designation of the site as an SAC [OBJ36/1b, App3]. Mr Boyd requests that national authorities’ views on the site designation and APIS recommendations are respected [OBJ36/2, para 2.2]. It is therefore appropriate to consider the views expressed by national authorities on condition, and to consider the critical loads assigned to the site by APIS and to habitat H7150 in particular. The condition of the habitat is considered to be favourable and future favourable by the JNCC [OBJ36/3, pages 9 and 16].
547. NWT has agreed (subject to an assumption that the modelling is robust and correct) that the maximum process contribution of acid at the parts of the site where H7150 habitat may be present, is 0.9% of the critical load function assigned by APIS [CD/X6, para 4]. The maximum process contribution attributable to the development which is likely to affect the H7150 is below the level at which any impact would be screened out as insignificant if the EA guidance were followed, and will be eliminated many times over by the predicted reduction in sulphur and nitrogen emissions.
548. If the approach advocated by Mr Boyd is followed, namely that the views of the national authorities and of APIS are respected, it is clear that NWT has no legitimate cause for concern.
The Wash
549. Mr Espin, a former chairman of the Wash Estuary Strategy Group drew attention to their biodiversity action plan (BAP). As explained by Mr Smithers in evidence and his note [N38], potential impacts on the Wash have been considered in the ES. The conservation objectives for The Wash and NCC’s assessment of them in the AA are set out in Z10, Annex 3.
550. There are two realistic mechanisms by which proposed development could potentially impact upon the Wash: emissions to air and/or to water. Both those potential mechanisms have been considered. A highly precautionary approach has been taken, namely to assume that surface water from the application site was discharged direct into the Wash without any dilution in the River Great Ouse (whereas a dilution of 1:95,7000 under average flow conditions is likely[CD/PA11, App 7, p vii]). There is no need or requirement to consider impact on individual species in the Wash when the process contributions (even on the basis of such conservative assumptions) are so small in relation to the relevant environmental quality standards [C38, para 3.5].
Mr Wilkie
551. Mr Wilkie has raised issues, including those relating to impact on bats, badgers, seals, harbour porpoises and dolphins. The first point to bear in mind when considering Mr Wilkie’s contribution is that the mere mention of protected species is www.planningportal.gov.uk/planninginspectorate Page 121 Report APP/X2600/V/12/2183389
not sufficient to bring a project to a halt. It is important to consider Mr Wilkie’s points in the context set by the relevant legislation.
552. The Habitats Directive provides protection for both habitats and species. The main means by which habitats are protected is by designation of European sites (SACs and SPAs). The Directive contemplates a network of sites hosting the natural habitat listed in Annex 1 and the habitats of species listed in Annex II (Article 3(1)). The principal means of protecting European sites when considering planning applications is provided by Article 6. Articles 12-16 provide for protection of particular species. The animal species which benefit from such protection are known as European Protected Species (EPS). Article 12 provides for strict protection for such species by prohibiting particular activities. Those provisions are transposed into English law by Part 3 of the Conservation of Habitats and Species Regulations 2010.
553. The protection of habitats provided for by Article 6 of the Directive is transposed into English law, in particular by Regulation 61 of the Habitats Regulations. Regulation 9(3) of the Conservation of Habitats and Species Regulations 2010 (as amended) is the means by which protection of EPS is to be considered when determining a planning application, it provides: (3) Without prejudice to the preceding provisions, a competent authority, in exercising any of their functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.
554. As the decision maker in this case, the SoS is the competent authority for the purposes of regulation 9(3). The relevant requirement of the Habitats Directive is Article 12, which provides: Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting: …………. (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; ……………… (d) deterioration or destruction of breeding sites or resting places.
555. The approach to be taken by a competent authority when performing the duty imposed by regulation 9(3) (when considering Article 12(1)(b)) was identified in Morge v. Hampshire CC [2011] UKSC 2 (see Lord Brown at paragraph 29) (Note: Regulation 3(4) of the 1994 Habitats Regulations has been replaced by Regulation 9(3) of the 2010 Regulations]: 29 In my judgment this goes too far and puts too great a responsibility on the Planning Committee whose only obligation under regulation 3(4) is, I repeat, to “have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by” their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1) , the Planning Committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating www.planningportal.gov.uk/planninginspectorate Page 122 Report APP/X2600/V/12/2183389
measures) should not ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England's own duty. 30. Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that this is so.
556. It is important to note that the extracts from Morge provided by Mr Wilkie [SW1], are, in the main from the dissenting judgment of Lord Kerr. It is essential that all the judgments are taken into account, and in particular to those of the majority. Lord Brown’s (with whom Lord Mance, Lord Walker and Baroness Hale, agreed) judgment sets out the current legal position. Lord Kerr was in a minority of 1.
557. The questions to be asked are: a) Would the development lead to disturbance to EPS contrary to Article 12(1)(b) of the Habitats Directive? b) Would the development lead to the deterioration or destruction of a breeding site or resting place of EPS contrary to Article 12(1)(d) of the Habitats Directive? c) If the answer to either of those questions is yes, are NE likely to grant a licence?
558. The species mentioned by Mr Wilkie are: a) Harbour porpoise (Phocoena phocoena) b) The common or harbour seal (Phoca vitulina) c) White beaked dolphin (Lagenorhyncus albirostris) d) Bats (Chiroptera) e) Badgers.
559. The harbour porpoise and bats are listed in Annex II and Annex IV of the Directive. They are also protected under the Wildlife and Countryside Act 1981 (Schedule 5). The common seal is listed in Annex II. All species of cetacea (which would include the White Beaked Dolphin), are included in Annex IV). Badgers are not EPS, but are protected by the Protection of Badgers Act 1992, which protects badgers and their setts. Badgers are also protected under the Wildlife and Countryside Act 1981 (schedule 6).
560. The SAC which is of particular concern to Mr Wilkie is the Wash. The Annex II species for which the Wash and North Norfolk Coast SAC is designated are listed by Mr Smithers [N40, para 2.1.3], and include the Common Seal, but not the Harbour Porpoise. All Annex IV species are, of course, subject to the protection offered by Article 12 of the Habitats Directive, whether or not a qualifying feature of a European site.
561. The issues to be addressed in relation to the SAC are those identified above, namely can the risk or probability of a significant effect be excluded, and if not can the SoS as competent authority be sure (or be convinced) that the development will not have an adverse effect on the integrity of the site? Mr Wilkie has produced no evidence to counter that set out in the ES and analysed by Dr Broomfield and Mr www.planningportal.gov.uk/planninginspectorate Page 123 Report APP/X2600/V/12/2183389
Smithers. As far as the Wash is concerned, the risk or probability of a significant effect can be excluded. If the SoS takes a different view and carries out an appropriate assessment he should follow the NCC AA [CD/Z10] and conclude that on the basis of the evidence he can be sure that there will be no adverse effect on integrity taking into account the conservation objectives.
562. Turning to species, as opposed to habitats, the protection offered by sections 9 and 10 of the Wildlife and Countryside Act 1981 is against killing, injury or taking (section 9), and certain methods of killing (section 10). None of the prohibited activities will occur.
563. Article 12 of the Habitats Directive prohibits a number of actions including deliberate disturbance of the species listed in Article IV of the Directive (Article 12(1)(b)) and deterioration or destruction of their breeding sites or resting places (Article 12(1)(d)). Mr Wilkie contends that piling will cause disturbance to harbour porpoises. He also refers to water discharges. The paper relied upon by Mr Wilkie [SW4] relates to impacts of pile driving at an offshore windfarm. This case involves no proposal for offshore pile-driving and the circumstances of this case are entirely different from those referred to in the paper. There is no evidence as to any disturbance to harbour porpoises or any other species arising from pile-driving.
564. Impact on protected species are considered in the Summary and Update to Protected Species Survey [CD/PA18]. Impact on water voles is considered, and a mitigation strategy described [ibid, para 2.9]; it is indicated that there will be no residual impact [ibid, table 5.1, p18]. No significant impact on bats is predicted, although mitigation measures are proposed [ibid, para 2.14]. No signs of badger were recorded during the survey [ibid, 2.16]; it is indicated that there would be no residual impact [ibid, para table 5.1, p15]. Compensatory measures are proposed for grass snakes [ibid, p2.19].
565. Mr Wilkie’s contentions have been considered by Mr Smithers in the note he produced for the inquiry [N39] (they have also been considered by EPR [C38]). It is clear from that note that the emissions arising will not engage Article 12 of the Habitats Directive, and that there is no reasonable scientific doubt as the absence of effects from emissions to air or of other potential impacts from or attributable to the proposed facility on the integrity of the SACs and SPA and Ramsar sites having regard to their conservation objectives.
Conclusions
566. On the objective evidence available, which is extensive, the risk or probability of a significant effect on a European site, Ramsar site or SSSI can be excluded. If a different view is taken the SoS should proceed to an appropriate assessment. The necessary information is before the inquiry to allow the SoS to conclude that on the basis of the objective information he can be certain that the proposal will not adversely affect the integrity of the European sites, and the Ramsar sites having regard to the conservation objectives.
567. Similarly the evidence is such as to lead to the conclusion that the duties imposed by the Wildlife and Countryside Act 1981 and the Natural Environment and Rural
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Communities Act 2006 will be complied with, in that there is no conflict with the aim of conserving and enhancing the SSSIs and as biodiversity will be conserved.
568. As there would be no disturbance of EPS or destruction or deterioration of their breeding sites or resting places the granting of planning permission will not lead to any infringement of the prohibitions imposed by Article 12 of the Habitats Directive.
569. There is no reason, based upon ecology or nature conservation grounds, to justify refusal of planning permission.
Landscape and Visual
570. The application site lies within the built up area of King’s Lynn in an area characterised by development of an industrial character. Neither the BC or KLWIN take issue on landscape and visual impact. It is unusual that an EfW scheme is not the subject of such objection from the principal opponents. A visit to the site and surrounding area gives some insight into the reasons for the lack of opposition. The site is immediately adjacent to a proposed, and close to an existing generating station. Palm Paper’s plant also lies close by. CABE support the design solution, and note that the architectural approach seems to work in long distance views, particularly against the backdrop of the existing power plant and paper mill [CD/M1, para 6.71 and N12, App 9].
571. Mr Morrish (acting on behalf of a number of parish councils) has raised objections on landscape and visual grounds. He considers the Palm Paper plant to present ‘reasonably successful industrial architecture’ [OBJ163/1, para 4.3]. He considers that the use of the building affects his perception and is likely to affect that others [ibid, 4.4-4.5]. It is Mr Morrish’s view on perception which appears to cause him to come to a different conclusion to that reached by the expert called to give evidence on behalf of the applicants (Mr Goodrum). It (i.e. his perception) also appears to be the reason which caused Mr Morrish to find that the buildings erected by Palm Paper to be reasonably successful industrial architecture. Perception of the utility of a building is capable of affecting evaluation of views, but it appears that it has played too great a part in Mr Morrish’s analysis. As a result Mr Morrish’s analysis does not provide sufficient reason to displace the views of Mr Goodrum (supported by a full LVIA) and the views of CABE.
572. Given its context and design, landscape and visual impacts are acceptable, and the relevant policies are complied with.
Alternative Scenarios/sites
573. Alternative sites have been considered through the sequential analysis for flood risk purposes and those submissions are relied on.
Carbon Footprint
Introduction
574. Although this matter has been identified as an issue, and is pressed by Mr Burton on behalf of KLWIN, it must be recalled that Government policy does not require a carbon footprint analysis to be made. Mr Burton presents his carbon analysis in www.planningportal.gov.uk/planninginspectorate Page 125 Report APP/X2600/V/12/2183389
order to support the contentions set out at paragraph 5.4.1 of his proof of evidence, namely that the proposal is in conflict with the policy set out in the NPPF (paras 93 and 95 in particular) and with MWCS policy CS13. In relation to the issue of general policy guidance on is issue and the SoS’s consideration of the multitude of evidence, it is critically important to make a clear finding as to the framework set by law and policy before then considering the facts as presented.
National policy on the approach to be taken to carbon emissions
575. NPSs are prepared under the Planning Act 2008 regime to guide decision making under that regime. However the policy also applies to planning applications – that is made plain in the NPS themselves [CD/U3, para 1.2.1], and in the NPPF [CD/U1, para3]. To take any other approach would lead to inconsistency in decision making, and would have no basis in logic.
576. Mr Burton sought to argue that the approach indicated in NPS should not apply to planning applications for energy projects, as they only made a small contribution towards total energy demand and to security of supply. The difficulty with this approach is illustrated by the example put to him in questions, namely that a decision on an 49 MW generating station would be made on the basis of a different approach to that which would be applied to a 51 MW station. Mr Burton then sought to argue that it was a matter of weight.
577. The policy on this issue is most clearly set out in NPSs EN1 [ibid, para 5.2.2] and EN3 [CD/U4, at paragraph 2.5.38], in which the (former) IPC is advised (in EN3 under the heading Biomass/Waste Impacts) that it need not assess individual applications in terms of carbon emissions against carbon budgets.
578. Therefore, it is not necessary to assess the carbon emissions of each planning application. That is, and should be, the end of this matter.
Planning Policies
579. During questioning, Mr Burton conceded that the proposal is not in conflict with policy CS13 of MWCS, but contended that CS13 is not consistent with the NPPF. Policy CS13 is entirely consistent with national policy in seeking to ensure that all developments take advantage of opportunities to generate on site renewable energy. However the policy has little or no application to a development which is itself a renewable energy generation facility. Mr Burton himself accepts that the biogenic waste will generate renewable energy.
580. Para 93 of the NPPF [CD/U1] states that planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions. It does not require individual applications to demonstrate that they secure radical reductions in greenhouse gas emissions. Para 93 also states that the NPPF plays a key role in supporting the delivery of renewable and low carbon energy and associated infrastructure. On Mr Burton’s own analysis the proposal would deliver renewable energy generation and is therefore supported by paragraph 93; the support is not limited to development which is both renewable energy and low carbon.
581. Para 95 of the NPPF gives general advice to LPAs in relation to the way that they should plan for development in locations and ways which reduce greenhouse gas www.planningportal.gov.uk/planninginspectorate Page 126 Report APP/X2600/V/12/2183389
emissions. There is no formula specified as to how that reduction is to be achieved or as to the comparison to be made.
582. The advice in para 98 is particularly apposite. An applicant is not required to prove a need for renewable energy development, and the application is to be approved if its impacts can be made acceptable. Mr Burton does not suggest that its impacts are anything other than acceptable.
Mr Burton’s analysis
583. Mr Burton has compared carbon emissions from the proposed development with those for electricity generated from the grid, and with the carbon emissions arising from the landfill. The main outcome of Mr Burton’s analysis is presented in table B1 at page 9 of his proof of evidence [W-000]. That table demonstrates that the proposed facility operating in CHP mode would have lower carbon emissions than landfill. The proposal is for a CHP enabled development. Unless the prospect of CHP can be excluded, which it cannot, it is not possible (even if all Mr Burton’s evidence is accepted) to make a finding that the proposed development will give rise to higher carbon emissions than landfill.
584. In any event, Mr Burton’s analysis cannot be accepted in full. As with any analysis of this type it depends upon assumptions which are themselves based upon uncertainties. For example he makes an assumption that landfill sites will have a 75% methane gas capture rate over their lifetime. Dr Broomfield pointed to a number of misplaced assumptions and errors [N32, 2.2-2.6]. Mr Burton accepted two of the four points made by Dr Broomfield when questioned, namely the allowance for oxidisation and the temperature at which the calculation from volume to mass should be made.
585. The assumption as to the landfill gas capture rate over the lifetime of the development is only an assumption. A change to that assumption, for example from 75% gas capture, as opposed to 64% (as illustrated by Dr Broomfield’s analysis [N32, Table B1 (revised) p7]) leads to the conclusion that landfill would give rise to greater carbon emissions than the proposed facility.
586. The analysis is based upon a large number of uncertainties and cannot, even if the decision making framework permitted it, allow any firm conclusions to be drawn as to the carbon impact of the proposed recovery facility when compared to landfill.
Conclusions
587. Even were the SoS to reject the above submission on the approach to be taken, on application of policy and on the analysis, the carbon issue would be one material consideration which would have to be weighed in the balance with other issues. Carbon issues are important, but they are but one factor to be considered. For example, the desirability of moving waste up the hierarchy from landfill to recovery, would in itself be a powerful factor which would outweigh an adverse finding on carbon issues. NCC’s view is that the proposal is compliant with the relevant policies in the NPPF and MWCS.
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Nearest Appropriate Installation
588. The ‘proximity principle’ is relied upon by the BC and other objectors. Before considering the evidence and submissions that have been made it is appropriate to put this issue in its appropriate policy and legal context. Regulation 18 of the WR2011 [CD/L8] imposes a duty on the SoS (when exercising his planning functions) to have regard to Article 16 (2) and (3) of the rWFD [CD/L6]. Article 16(2) and (3) provide: 2. The network shall be designed to enable the Community as a whole to become self-sufficient in waste disposal as well as in the recovery of waste referred to in paragraph 1, and to enable Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.
3. The network shall enable waste to be disposed of or waste referred to in paragraph 1 to be recovered in one of the nearest appropriate installations (NAI), by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health.
589. The requirement to which regard is to be had requires waste to be recovered in one of the NAIs. Recital 32 makes plain the objective which is sought to be achieved, namely to provide a network of installations to achieve self sufficiency at community and Member State level.
590. Mr Hollister has approached this issue by considering distance from source of waste, as illustrated in Figures A and B appended to his proof of evidence [K13]. When questioned, he confirmed his position when he stated that the proximity principle is all about distance. As is made plain in the ‘A Guide to the Debate’ document [CD/U32], it is not.
“The principle is often over-interpreted to mean that all waste has to be managed as close to its source as possible to the exclusion of other considerations, and that local authorities individually need the infrastructure required to do so. This is not the case.” [ibid, para 151]
“’one of the nearest’ means it doesn’t have to be the absolute closest facility to the exclusion of all other considerations.” [ibid, para 152].
591. That answer given by Mr Hollister demonstrates that those opposed to the proposal have approached the issue of proximity on a very narrow basis. Indeed by using the term ‘proximity’ as opposed to ‘one of the nearest appropriate installations’ there is a real danger of misapplying the objectives identified in the Directive. The WRATE assessment illustrates the dangers of concentrating on distance. The small carbon benefits (by reducing vehicle mileage) of locating a facility elsewhere in Norfolk (at Costessey) would be completely negated by a delay in the commencement of operations of more than 20 days [CD/PA9, Divider 2, p2].
592. The objective of securing self sufficiency and of ensuring that waste is disposed of at the nearest appropriate installation was, of course considered during the preparation of the MWCS. Indeed Mr Hollister sought to make much of the reference to proximity in paragraph 6.20 of the MWCS. Policy CS5 was framed and adopted in the light of that principle. Compliance with policy CS5 (and it is to be www.planningportal.gov.uk/planninginspectorate Page 128 Report APP/X2600/V/12/2183389
recalled that Mr Hollister acknowledges that the proposal does comply with the policy as worded) is a clear indication that the objectives set out in Article 16(3) would be achieved by granting planning permission.
593. The Article 16(3) objectives would be hindered by a decision to refuse to grant planning permission. Norfolk will not have adequate recovery facilities and carbon savings will be delayed. The application proposals will represent the NAI and will make a significant contribution to securing a network of facilities which would ensure self sufficiency in household waste recovery. As a result the objectives and requirements of the Directive are complied with.
Prematurity
594. The principle of prematurity is explained in paragraphs 17-19 of The Planning System: General Principles [CD/U14]. The object of the approach advocated is to prevent the plan led system being undermined by decisions which ought properly be taken in the plan making process from being pre-determined by a decision made on an individual planning application. Given that the WSSA DPD Inspector is likely to report before the SoS makes a decision on the current application, the issue of prematurity is in fact unlikely to arise, as the decision on the current application will not pre-empt any decision to be taken in the plan making process. When considering objections based upon prematurity, it is important to step back and consider whether one desirable object, namely making planning decisions in accordance with a carefully devised and considered plan, should be allowed to prevent the provision of much needed facilities. Those and other desirable objectives have, in each case to be balanced. The weight given to those competing interests and objectives will vary in each case.
595. In this case the plan under preparation is the Waste Site Specific Allocations DPD (the WSSA ). The WSSA forms one part of the development plan. The MWCS has already been adopted. Unless it is intended that policies in the MWCS are to be superseded by policies in the WSSA, the policies in the WSSA must be consistent with the MWCS (Town and Country Planning (Local Planning) (England) Regulations 2012, regulation 8(4) and (5)).
596. Decisions as to need and phasing (CS4) and general location (CS5 and CS6) have already been taken in the MWCS; it is not intended that those polices be superseded in the WSSA DPD. The only relevant decisions which remain to be taken in the WSSA are those relating to the environmental effects of particular forms of development on particular sites, such as proposal WAS65 (the application site). A decision on the current planning application, and in particular one to approve the application, would not undermine the plan led system, it would enhance it. It would not be premature as described in the General Principles document. More information on those environmental effects is available to this inquiry than to the WSSA examination, and this inquiry has offered greater opportunities for scrutiny.
597. Even if a different view were to be taken, the desirability of making a decision in this application before a decision on the site’s allocation in the WSSA DPD, would not on this case be a sufficiently weighty consideration to outweigh the pressing need to provide recovery facilities to meet the requirements identified in MWCS policy CS4.
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Waste Hierarchy
598. It is important to consider this issue in context. The majority of residual existing MSW waste goes to landfill [CD/G14, Table 10]. As accepted by Mr Hollister, the proposal will move waste up the hierarchy from landfill to recovery. Mr Hollister’s argument is that the contract made between NCC and CW (relating to MSW) will inhibit increased recycling and will therefore prevent waste from being moved up the hierarchy.
599. As agreed by Mr Hollister, when questioned, the argument depends upon the following assumptions: a) That the proposed facility will be operated by the applicants under the terms of their contract with NCC as WDA (although the planning permission sought is not personal to the applicants) b) That based upon his calculations there will be insufficient residual waste available to allow NCC as WDA to supply 170,000 tpa of MSW c) The operator will not be able to find substitute waste at a price which equals or exceeds the unitary charge d) That NCC will have an economic incentive to deliver 170,000 tpa of MSW and will therefore divert waste that would otherwise be recycled. As agreed by Mr Hollister in questioning, unless all those points are made out, his waste hierarchy point fails. As he also agreed, it is an argument based upon multiple uncertainties
Assumption (a) 600. There is little dispute on point (a) – it is reasonable to assume that the applicants will operate the plant.
Assumption (b) 601. Even if all Mr Hollister’s assumptions are accepted he does not arrive at figure lower than 170,000 tpa unless the BC consigns its waste to MWL. Applying all his assumptions he gets to a figure of about 180,849 tonnes of residual MSW in 2014- 2015 before taking account of MWL. Mr Hollister’s K15 figures are based upon national figures derived from the DEFRA document ‘Forecasting 2020 Waste Arisings and Treatment Capacity’ [CD/U33]. Those figures relate to England as a whole. Mr Hollister’s K15 figures take no account of specific circumstances in Norfolk. As accepted by Mr Hollister his figures need to be adjusted to take account of the fact that household growth in Norfolk is predicted to occur at a higher rate than in England as a whole. Different rates of household growth will inevitably lead to different levels of arisings and of residual MSW [CD/U6, Annex D, paras 6 and 8]. However Mr Hollister has taken no account of them. Even on Mr Hollister’s rough figures he would have to add about 5,000 tonnes p.a. to his estimates.
602. A number of objectors have suggested that recycling rates may increase. The MWCS assumes an increase to 50% recycling in 2018/2019 [CD/D1, p104]; that approach is consistent with the Waste Strategy for England [CD/U24, p11]. Mr Richard Howitt MEP’s makes references to speeches and resolutions in the European Parliament and the encouragement given to a ‘closed loop’ or ‘zero waste’ economy. Those resolutions may nor may not lead to changes in the law. The decision on this application has to be made on the basis of the law as stands at present.
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603. The MWL contract is dependent upon a number of conditions set out in the ‘call off’ contract [CD/J7, Call Off Contract clause 1.1.2]. It appears most unlikely that those conditions precedent will be satisfied as: a) A 1,000 litre minimum Saltus system has not been demonstrated to be successful (Mr Billson stated, when questioned, that Mr Plummer was mistaken when, in his report [K13., App 7, para 3.2.1], he referred to a 1,000 litre system, and should have referred to a 400 litre system). b) End of waste certification has not been achieved. c) No environmental permit has been obtained. d) The funding is not in place. e) No site has yet been selected and no planning permission has been obtained (or sought). f) No site has been acquired. g) The process on the scale envisaged has not been demonstrated to be viable.
604. It may be that those conditions can be satisfied in time. However the fact that none of the conditions precedent has been satisfied adds very considerable uncertainty. It would be most unwise to take a decision on the current planning application based upon an assumption that a contract will be let to Material Works, when not a single condition precedent has been met. Although the BC appear to be contemplating entering into a contract with Material Works, Mr Hollister also contemplates [K12, para 4.3.9] that Breckland may enter into a similar contract. Breckland have made plain that they do not wish to enter into a contract at this time [REP/1].
605. It is clear that, on examination of the facts, assumption (b) is not justified, and should not be made. As a result Mr Hollister’s argument cannot and should not be accepted.
Assumption (c) 606. Assumption (c) which is adopted by Mr Hollister is that the operator won’t be able to find substitute waste at a price which is equal to or exceeds the unitary charge. The argument relies upon number of factors: a) The contract provides for a minimum tonnage of 170,000 tonnes p.a. b) The applicants will charge a fixed price per tonne, known as a unitary charge. The formula used to calculate the charge is complex [CD/J1, App4, para 5]; the actual amount of the charge is not known. Mr Boldon said that it was lower than £110 per tonne in 2015-2016, when questioned; c) If the WDA do not provide 170,000 tonnes of waste, the applicants can find substitute waste. If they receive more than the unitary charge for the substitute waste the excess is split between the WDA and applicants. If the gate fee for the substitute waste is less than the unitary charge, subject to provisions on top up waste, the WDA have to pay the difference between the gate fee charged and the unitary charge. d) The gate fee that an EfW facility is able to charge for C&I waste is influenced by the cost that would be incurred by alternative means of waste management (e.g. landfill or export to continental Europe) e) The charge for landfill is made up of tax and the gate fee. f) The BC relies upon the fact that the gate fee for landfill, based upon national median average figures, does not appear to be rising. (Note: The figure of 2010 was £22 (K3), 2011 £20 (K4), and 2012 £21 (C13, App.2). Landfill tax will be £80 per tonne in April 2014 as agreed by Mr Boldon). www.planningportal.gov.uk/planninginspectorate Page 131 Report APP/X2600/V/12/2183389
g) The BC argue that the gate fee for C&I waste is likely to be less than the unitary charge, as the comparable gate fees + tax for landfill sites is likely to be less than £110 in 2015/2016.
607. The BC’s argument is flawed, as it is not based upon figures relating to Norfolk but on averages applying to England or the UK. The figures for Norfolk suggest that the landfill gate fees are likely to be in excess of £110 and therefore there is likely to be ample C&I waste to feed the incinerator and therefore there will be no disincentive to recycle [ibid, App2, para 4.2]. Furthermore, given that the philosophy that underlies the landfill tax, namely that the gate fee for landfill should be set at such a level as to make landfill more expensive than other options, landfill is unlikely to be offer an opportunity for management of C&I waste at a lower price than the unitary charge. Given those factors, it would appear that Mr Boldon’s confidence, when questioned, that the applicants can attract sufficient C&I waste at a price above the unitary charge is based upon sound evidence.
608. If all Mr Hollister’s figures are taken he arrives at a figure of MSW suitable for treatment at the proposed recovery facility of 180,849, on to which 5,000 has to be added (on Mr Hollister’s analysis) to take account of differential household growth rates in Norfolk. Mr Hollister then seeks to deduct the 35,000 tpa of BC residual waste that he says will be sent to Material Works. That would leave a ‘shortfall’ of about 20,000 tpa (185,849 minus 35,000 = 150,849. The minimum tonnage is 170,000 tpa). The figure arrived at is based upon Mr Hollister’s assumptions, which are misplaced. It is therefore an artificial and unrealistic figure.
609. Even on Mr Hollister’s figures there would be 282,958 tpa of residual commercial and industrial waste requiring treatment [K15]. On Mr Hollister’s figures the plant would require 124,151 tpa of that C&I waste, as opposed to the 105,000 tpa currently envisaged. Mr Hollister’s argument relies on persuading the SoS that the plant could not attract that additional 19,000 tpa or so. It is highly unlikely that in the circumstances envisaged by Mr Hollister the plant could not attract substitute C&I waste at a reasonable price or gate fee – on his figures it would be taking less than half of the available residual waste.
610. KLWIN’s closings (para 27) submit that no weight can be placed on the contract made between NCC as WDA, and Cory Wheelabrator. A reference is made to CD/A18 (the Rufford decision), but no paragraph number is given. The source for the KLWIN submission relating to Rufford is unclear, but may be a reference to IR 1281. In the Rufford case the SoS (DL 17) concluded that the proposal would result in the movement of waste up the hierarchy as it would help divert waste from landfill; it is clear that any lack of information relating to the PFI, did not inhibit the SoS from coming to that conclusion.. Ms Lieven QC and Mr Williams also make submissions on this issue in the BC closings (paras 4 and 7). However, NCC do not rely upon the contract to make out its case. It has considered the planning application and formed a view on the merits of that application. It is those opposed to the application who rely on the contract. The redactions have not inhibited them from doing so.
611. This assumption made by Mr Hollister is misplaced.
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Assumption (d)
612. The next and final piece of Mr Hollister’s complex case is that, given the alleged inadequate supply of MSW or substitute waste, the WDA will consign waste to the proposed plant and thereby deter recycling that would otherwise have taken place. Before considering the detail of this argument it is necessary to put it in context.
613. Regulation 12 of WR2011 [CD/L8] imposes the following duty: (1) An establishment or undertaking which imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste must, on the transfer of waste, take all such measures available to it as are reasonable in the circumstances to apply the following waste hierarchy as a priority order— (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery (for example energy recovery); (e) disposal.
The duty is imposed upon those who import, produce, collect etc… waste. That duty applies to waste collection authorities as much as it does to a waste disposal authority.
614. Mr Hollister’s argument depends upon an assumption that WCAs and/or the WDA will have such a strong financial incentive to feed the proposed recovery plant that it is not ‘reasonable in the circumstances’ to follow the hierarchy. This outcome is highly unlikely given the duty to pursue the hierarchy. Further, even if financial considerations were relevant to whether it was reasonable in the circumstances (and that is uncertain), the WCAs would not be under those financial constraints and so they would continue to be under the untrammelled regulation 12 duty. A further factor to consider is that waste capable of being recycled is highly unlikely to be sent to the EfW facility, given that the financial worst case for recycling is a cost of less than £60 per tonne [C13, App1 para 3].
615. It is also appropriate to note that one of the criteria applied when considering whether to award PFI credits is whether the applicant has demonstrated that there is no future barrier to meeting reduction, reuse and recycling targets [CD/J6, Criterion 5]. PFI credits have been awarded and therefore that criterion was judged to be satisfied. For those reasons, the suggestion that the contract will operate in such a way as to deter recycling is not supported by an analysis of the facts. Similar arguments were raised by objectors in the Cornwall case; they were rejected by the Inspector [CD/A6, IR 1882-1889]. The Inspector’s analysis of the arguments in that case applies equally in this case, and there is no reason to depart from that approach.
616. Assumption (d) is misplaced.
617. At this stage it should also be noted that the submission made on behalf of KLWIN in para 53 of their closing submissions, namely that the incinerator will necessarily operate in such a way as to cause the WDA to fail to comply with its duty under regulation 12 of the 2011 Regulations. That submission is not made out either by the argument set out in the KLWIN submissions or on the facts. The diversion of www.planningportal.gov.uk/planninginspectorate Page 133 Report APP/X2600/V/12/2183389
residual MSW from landfill to recovery moves waste up the hierarchy. In order to make out the KLWIN argument it would have to be established that material which would otherwise be recycled would be recovered; given the amount of residual waste available, that is not the case.
618. Mr Hollister’s argument is based upon misplaced and unsustainable assumptions, and should be rejected.
Conclusions
619. The hierarchy is given effect in the planning system through the application of PPS10 [CD/U7 and CD/U30, 7th page], and in the preparation of plans. That approach is entirely understandable. If each applicant were required to demonstrate compliance with the hierarchy, it would be very difficult for any applications other than those which lie at the top of the hierarchy to be approved. It would be cumbersome in the extreme to require applicants for individual planning applications to demonstrate how their particular proposal complied with the hierarchy; that is not required, as was made plain by the SoS in the Middlewich decision [CD/A14, para 24].
620. The approach to be taken is to assess each proposal against PPS10 and against the relevant development plan policies. The revisions made to PPS10 in March 2011 reflected the changes to the hierarchy contained in Article 4 of the rWFD. Those revisions were made after the MWCS was submitted to the SoS in February 2011, but before the oral examination of the CS. The Council proposed changes to the CS to take account of the revisions to PPS10 and the Inspector endorsed those changes [CD/G9, para 46].
621. The objective of driving waste management up the waste hierarchy has been considered and applied in the plan making process and the policies in the MWCS reflect that consideration. The proposal would make a very significant contribution to moving waste from landfill to recovery, and complies with the MWCS, and with the aim of moving waste up the hierarchy. The proposal does not act as a disincentive to moving waste up the hierarchy, quite the opposite, it is urgently needed to move residual waste from landfill to recovery.
Air Quality
622. KLWIN seek to place considerable emphasis on air quality issues. Mr Bramwell seeks to cast doubt on the use of ADMS modelling software [W-200], and the data taken into account, but puts forward no alternative analysis. The essence of KLWIN’s point is that no or no sufficient account was taken of the air cooled condensers (ACC) associated with the proposed Centrica B generating station. Two separate points are made, namely: a) The approved layout plans for Centrica B show the ACC being closer to the Application Site than was the case in the original Centrica B proposals; and b) The effects of the ACC on dispersion from the Application Proposal stack have not been modelled.
623. It is important to note that KLWIN’s case on this issue depends upon the evidence of Mr Bramwell. Mr Bramwell’s expertise is in engineering, and despite knowledge
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of meteorology gained as a result of his experience as a glider pilot, not in air quality modelling.
624. During questioning of Mr Palmer by KLWIN, attention was drawn to the fact that a number of drawings did not show the revised layout of the proposed Centrica B power station. The appropriate layout of Centrica B is shown in document A17 [CD/A17, drawing 0 GB 19122 Rev A]. Dr Broomfield, when carrying out his analysis, based his assessment on the information submitted by Centrica in support of their permit application, which shows the proposed generating station in the revised location [N39, para 6.3.4 (with reference to the permit application). Fig 3 [N43] is consistent with CD/A17. The first point made on behalf of KLWIN is not made out.
625. The second point (inadequate modelling) is considered under the heading ‘Adequacy of the ES’ later in these submissions. There is no inadequacy. As the consultants who developed the ADMS model pointed out [W-206, App6], given that buoyant air will be generated by the ACC, it is not worth modelling the effect. The buoyant air will lead to more widespread dispersion and therefore any impact from the ACC will be positive (i.e. reduce any impact, which was not disputed by Mr Bramwell, when he was questioned). Furthermore the EA considered the point and came to the view that the Applicant’s conclusions remained valid [CD/E2, p 102]. Mr Bramwell, in his written evidence, sought to support his second point by contending that there had been a failure to comply with the modelling guidance for ADMS v.4.2 [W-200, para 3.3.1(a)]. The relevant extract from the ADMS User Guide [N46] was put to Mr Bramwell and he conceded that there had been no conflict with the guidance.
626. Neither of the two points made by KLWIN has any force. Both should be rejected.
627. Attention has been drawn by objectors, including Ms Hall and Mr Wilkie, to the recent judgment of the Supreme Court in R (on the application of ClientEarth) v. Secretary of State ([2013] UKSC 25). That judgment concerns the Government’s compliance with the 2008 Air Quality Directive, and in particular to compliance with Article 13. The current application is concerned with emissions from one plant, and in this case the proposed development would have no material negative impacts on AQMAs [N30, para 8.2.4]. Emissions from the proposed development do not give rise to any breach of the Directive.
628. Other air quality impacts, such as those arising from dust, fugitive odour and bio aerosol emissions and plumes are all assessed in the ES. Dr Broomfield considers all those assessments to be adequate [ibid, paras 6.4.6 and 7.2.9-7.2.11], and his conclusion on those issues has not been subject to any serious challenge.
629. There is no deficiency in the approach taken to modelling emissions to air.
Adequacy of ES
630. It is for the decision maker to form a view as to the adequacy of the environmental information (R (Blewett) v. Secretary of State [2004] Env LR 29 at paragraphs 32 and 33). NCC did not consider the ES as submitted with the application to be adequate, and as a result they requested further information [CD/PA15]. A substantial body of further information was submitted, and in the light of that www.planningportal.gov.uk/planninginspectorate Page 135 Report APP/X2600/V/12/2183389
additional information, the County Council formed the view that sufficient and adequate information had been provided.
631. The BC do not contend that there is any inadequacy in the ES. (See the response to the request for clarification of the BC’s Statement of Case: Armitage C51, App.4 Response 8).
632. Mr Bramwell of KLWIN contends that the ES is inadequate as it does not use appropriate techniques (namely computation fluid dynamics) to model the effect on dispersion of emissions from the stack of the proposed Willows plant as a result of air released from air cooled condensers which form part of the proposed Centrica B generating station. It was clearly unnecessary to carry out modelling using CFD as is evident from the email from CERC which was produced by W206, App 6. The author of the email states: In that case, the condenser units will generate buoyant air and so generally have a positive effect on dispersion, reducing ground level concentrations due to the stack. This sort of effect could not be modelled using a standard dispersion model such as ADMS, as might be used for an air quality assessment for this kind of development. It could be modelled using Computation Fluid Dynamics (CFD) techniques, for a limited range of weather conditions, but this would be very expensive and, in our opinion, not worth doing given the above.
633. The effect is positive, namely that dispersion will be more widespread and so concentrations in the atmosphere of any substances emitted will be lower, and so it is unnecessary to model using CFD techniques. The agreement on that issue extends to all the relevant air quality experts and to Mr Bramwell, when he was questioned.
634. Mr Bramwell also raises a concern relating to terrain modelling. That concern is answered by Dr Broomfield at N30, para 6.3.4 and his note N48. In particular it should be noted that Dr Broomfield expressed the view that appropriate values were selected for forecasting near-field and far-field impacts [N30, para 6.3.4]. Mr Bramwell has responded to Dr Broomfield’s note and contends that different surface roughness should have been adopted by the applicants.
635. In resolving the issue raised by Mr Bramwell, as to the accuracy/reliability of the modelling, it is important to note that: a) The BC considered air quality issues in some detail; they instructed two separate firms, URS and Air Quality Consultants, to investigate the matter; they do not pursue the point. b) Dr Broomfield, on behalf of NCC, raised a significant number of issues in the request for further information (which resulted in the submission of the Part B environmental information). c) The EA considered the approach to terrain modelling [CD/E2, pp 97-98] and the impact of the Centrica B air cooling impacts [ibid, pp102-3] when determining the permit application and were of the view that the applicant’s conclusions remained valid.
636. Given, in particular, the fact that the EA has assessed the issues, and came to the conclusion that the applicants’ approach remained valid, there is no sustainable basis upon which it could be concluded that the ES is inadequate. As such the SoS should conclude that the ES and further information is adequate. www.planningportal.gov.uk/planninginspectorate Page 136 Report APP/X2600/V/12/2183389
PPS 10
637. The current version of PPS10 was issued in March 2011, at the time when the MWCS was being examined. Changes were made to the MWCS to ensure that it paid regard to PPS10 as revised. The examining inspector endorsed those changes [CD/G9, paras 46 and 47]. The key planning objectives set out in paragraph 3 of PPS10 objectives are reflected in the MWCS, with which the proposal complies.
638. PPS10 emphasises the role to be played in sustainable waste management by positive planning (para 2). An essential element of such positive planning is the provision of sufficient opportunities for new waste management facilities of the right type, in the right place and at the right time. The Application Proposal is for a recovery facility and therefore meets the very need identified in policy CS4 of the MWCS, and does so within the time period specified in that period. A decision to grant permission would accord not only with that policy, but also with the key planning objectives in PPS10. To refuse to grant planning permission would frustrate those objectives.
639. The approach to determination of planning applications is set out at paras 22-38 of PPS10 and if that approach is followed, the policy indicates planning permission should be granted. As the application proposal is consistent with the up to date development plan there is no requirement for the applicant to demonstrate a quantitative or market need (para 22); need has been considered in the plan making process and the requirement for the provision of recovery facilities contained in the MWCS is a result and product of that deliberation in the plan making exercise. The site satisfies the criteria identified in paragraph 21.
640. Many objectors have advanced cases on issues which paragraphs 26-28 indicate are the responsibility of others, such as the pollution control authorities (in this case the EA). Many objections advanced against the planning application proposal were advanced against the permit application. Those objections received careful consideration by the EA as made plain in their decision document [CD/E2]. The policy set out in para 27 of PPS10 should be followed – the decision on the planning application should be made on the basis of an assumption that the pollution control regime will not only be properly applied, but also properly enforced.
641. Para 29 advises planning authorities to consider local environmental impacts including impact on amenity. The principal opponents of the scheme do not take points based upon impacts on the local environment or local amenity. Paras 30 and 31 give clear advice on the approach to be taken to health impacts. There is a clear allocation of respective responsibilities; planning authorities are required to take advice from those bodies expert in health, the relevant authorities and agencies. That approach has been taken in this case; the relevant authorities have no objection to the proposals. There is no need to take the matter any further; indeed it would be contrary to the policy guidance (that waste planning authorities should avoid carrying out their own detailed assessment of epidemiological and other health studies) to do so.
642. Local health conditions, to which Cllr Kemp has referred, are plainly relevant. They have been considered in the Health Impact Assessment [CD/PA 7(3)]. However, as stated in para 30 of PPS 10, the issue to consider is whether the location of the proposed development is acceptable. In this case there is no evidence which www.planningportal.gov.uk/planninginspectorate Page 137 Report APP/X2600/V/12/2183389
indicates that the proposal will have any adverse impact on local health conditions, whether as a result of assessment of EfW facilities in general or in relation to the location proposed in particular. The conclusion to draw is that the proposed development will have no discernible impact on local health conditions.
643. The advice in para 35 (relating to good design) has been followed and the design has been commended by CABE. The proposal also meets the locational guidance given in para 21 and Annex E.
644. The proposal complies with the relevant policies in PPS10. That material consideration indicates that planning permission should be granted.
NPPF
645. Particular aspects of the Framework in headings relating to particular issues, such as flood risk, have already been covered elsewhere.
646. The core planning principles (set out at para 17) are said to underpin plan making and decision taking. One of the main aims of the Framework is to proactively drive and support sustainable economic development. The approach which underlies the policy is that needs should be objectively assessed and that the planning process should respond by making land available to meet those needs. In this case the need for recovery facilities is clear. The current approach of sending waste to landfill is highly undesirable.
647. Although the presumption in favour of sustainable development does not apply in cases where development requires AA [CD/U11, para 119], the core planning principle of making land available to accommodate development to meet objectively assessed needs nonetheless applies. In this case it will be for the SoS to determine whether AA is required. If he follows the approach advocated by NE and the EA he will decide that it is not required. If he follows the approach take by NCC he will decide that AA is required. If it is not required the application proposals, as sustainable development, will be entitled to the benefit of the presumption in paragraph 14 of the Framework.
648. There is and can be no doubt that the proposal is (in relation to the biomass fraction of the waste) an application for renewable energy development. It may, subject to the arguments relating to carbon footprint, also be considered to be a low carbon energy proposal. As a renewable energy development there is no requirement to demonstrate need, and the application is to be approved if its impacts are (or can be made) acceptable (para 98). In this case the BC, one of the main opponents to the scheme, do not contend (save in relation to flood risk) that there any adverse impacts arising. They do not, for example, contend that there is any adverse impact on air quality, ecology, highways, landscape and visual interests, or residential amenity. KLWIN and others do contend that there is an adverse impact on ecology, however, upon analysis it can be concluded that their concerns are not justified.
649. As there are no demonstrable unacceptable adverse impacts, the guidance given in para 98 of the Framework should be followed, and the development should be approved.
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Draft WSSA DPD
650. The application site, as site WAS65, is allocated for thermal treatment in the draft WSSA DPD.
651. That proposal has been objected to, and those objections are being considered by the Inspector appointed to examine the submitted draft DPD. Given that objections have been made to proposal WAS65, and those objections are yet to be resolved, it is acknowledged that the proposal cannot be given full weight. However the fact that the application site has been put forward for waste management uses, including thermal treatment, is a further factor which weighs in favour of the application proposal, as is the fact that (on the basis set out in my submissions) all the requirements set out in WAS65 are satisfied.
Conditions and Planning Obligations
652. The conditions considered appropriate by the County Council can be found at document C9c and were discussed in the conditions session, as was the planning obligation.
Conclusions
The Development Plan . 653. The strategy set out in the MWCS is to provide sufficient waste management capacity to meet the expected arisings of municipal and commercial and industrial waste (CS3). The extent of that requirement is identified in policy CS4. The MWCS identifies a need for recovery capacity, in particular capacity for 370,000 tonnes per annum in the period 2010-2015 (CS4).
654. Policy CS5 provides guidance on location. The proposal is entirely consistent with those policies and there is no realistic alternative means of meeting the policy requirements. For the reasons given above policies relating to flood risk are complied with.
655. A view has to be taken as to whether the proposal accords with the development plan when taken as a whole. On the evidence the only arguable point by opponents of the scheme is that relating to the flood risk policies (CS 08 in the CS and DM4 in the MWCS). A proper analysis of flood risk issues leads to the conclusion that the proposal accords with the relevant policies, whether because it is considered to lie within flood zone 1, or because the sequential approach is satisfied. Further, if the WSSA inspector recommended in favour of the proposed WAS 65 allocation, any semblance of an arguable point would fall away.
656.. The clear conclusion to draw is that the proposed development accords with the development plan when considered as a whole. As a result the proposal benefits from the presumptive influence of section 38(6) of the Planning and Compulsory Purchase Act 2004.
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Other material considerations
657. There are no other material considerations which displace the indication given by the development plan, they point overwhelmingly in favour of the proposal. The BC, despite its initial ‘long list’ of objections, now takes no point on local environmental impacts such as residential amenity, highway safety and amenity, nature conservation, landscape and visual impact, air quality or health. The proposal accords with the core planning principles identified in the Framework and benefits from the support that it gives to renewable energy projects.
658. The indication given by the development plan should be followed, and planning permission should be granted for this proposal; to take any other course of action would be unsupportable on the evidence.
The Case for the Borough Council of King’s Lynn and West Norfolk
The main points are:
Waste Hierarchy
Introduction
659. The BC’s objection on waste hierarchy grounds is that, because of the terms of the contract entered into by NCC, a proportion of the MSW which would have otherwise been recycled will be managed instead by thermal treatment (i.e. by a means lower down the waste hierarchy). The result will be that new initiatives aimed at increasing recycling of MSW over the 50% target level will be held back.
660. The contract was agreed upon the basis of historic information and provides a static base in a highly dynamic market. Since it was agreed, waste arisings predictions have fallen very substantially, thus fundamentally undermining the original business case (which had sought to demonstrate that the 170,000 Minimum Tonnage figure was an appropriate proportion of the predicted residual MSW arisings). There is nothing in the contract to protect higher recycling rates, unlike other contracts elsewhere, and the facility is now dependent on the PFI credits (justified by the out-dated business case) and on NCC or CW being able to source suitable residual C&I waste at a particular price. If that cannot be achieved then there will be a very strong incentive on NCC to take steps contrary to the waste hierarchy in order to avoid paying for a service it does not receive.
Overview
661. Either the applicants or NCC or both have decided not to release a full copy of the contractual terms on which the applicants will charge NCC to take its waste. This obviously puts those seeking to test the issue of the waste hierarchy at a severe disadvantage. In these circumstances, and where this matter is put in issue, the onus falls firmly onto the applicants or NCC to demonstrate that the imperative to drive waste up the waste hierarchy will not be prejudiced by the proposal.
662. There are certain known consequences of the contractual terms. There is a minimum tonnage of 170,000 tpa (“the Minimum Tonnage”) of residual MSW for
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which if delivered NCC will pay the contracted price (“the Unitary Charge”). It is not known what the Unitary Charge will be and it is not possible to calculate on the basis of the information provided. If there is a shortfall against that Minimum Tonnage, then the contract provides for the operator to act as a prudent waste operator to secure waste for its own facility [CD/J2, clause 25.2.4] to secure additional suitable residual C&I waste.
663. The straitjacket for NCC is the inflexibility of the contract on price. Much has been made by the applicants of the supposed flexibility of the contract terms. But there is no real flexibility on the critical question of price. This is exacerbated by the nature of the obligation on the operator. If acting as a prudent operator to secure waste it will price its gate fee competitively to ensure that it operates at or near capacity so as to maximise economies of scale and electricity production.
664. There is therefore a tension in the contract in the shortfall scenario between NCC’s aspirations, which would be to keep the price of additional waste above the Unitary Price, and the operator’s which will be to secure the maximum waste for its own facility. This tension will undoubtedly resolve in the applicants’ favour, given that NCC have no choice but to pay the Unitary Charge, and secondly because the opportunity for NCC to provide Top Up waste only arises if the applicants have not (even by prudently cutting the gate fee to secure it operates near capacity) attracted sufficient waste. NCC has therefore made a very bad deal – it has overcommitted by guaranteeing revenue based on a Minimum Tonnage figure which can now be seen to be much too high when considered against the latest authoritative forecast of MSW arisings and it has no effective control over the price at which the applicants can secure substitute C & I waste.
665. At the outset of the inquiry the BC made clear that it was put at a significant disadvantage due to the redaction of relevant information. It also made clear that the only way to make progress in such circumstances was: a) To make certain assumptions which the applicants or NCC could disprove if they were incorrect, for example the unitary charge of £110 assumed by Mr Hollister; b) To place the burden in demonstrating compliance with the waste hierarchy on NCC and the applicants.
666. The applicants and NCC have not challenged any of Mr Hollister’s assumptions or moved to suggest that the burden should fall (impossibly) on the BC. The SoS should therefore accept the BC’s assumptions on the contract, and the burden plainly falls on NCC and the applicants.
667. NCC and the applicants are wrong to characterise this as a simple “crowding out” argument, in similar terms as those that have been advanced at other inquiries. The objection here turns on the specific terms of the contract and the economics of the residual waste market in and around Norfolk. DEFRA recognises [CD/U32, para 56] that the potential for EfW to consume materials which could otherwise be managed higher up the waste hierarchy is a legitimate concern. Defra recognises the “commercial reality” behind this concern caused by the minimum guaranteed throughput, and suggests that the problem may be addressed through having flexibility in the system and the contracts surrounding it, setting realistic capacity requirements, and by plants being allowed to accept and seek out waste from other sources to make up any shortfall [ibid, para 61].
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668. Against that background, the BC highlights the following: a) As far as the BC can tell from the limited contractual information provided there is no flexibility in relation to the price that NCC must underwrite if there is a shortfall; b) Likewise, there is no flexibility as to the Minimum Tonnage, which cannot be re- written downwards in the event that predicted waste arisings fall; c) Although there is allowance for the operator to accept non-contract waste to make up the capacity the pricing of this is entirely a commercial matter and has no footing in the contract price.
669. In addition, not only does the contract not provide the carrot that will actually encourage lower recycling to be achieved, but it also fails to include the stick to ensure that recycling rates continue to increase. This is in contrast to, say, the contract at Shrewsbury, much relied upon by applicants (and Mr Hollister’s analysis of it in C87 in 8.2.7-8.2.10) where the contract was to support an integrated waste management solution capable of meeting and exceeding local and national recycling targets. The contract there included specific recycling measures being undertaken (a dirty MRF integrated into the EfW) and specific recycling rates in excess of the local target being met; as well as including financial incentives to encourage recycling [CD/A4, paras 109-110]. That is the type of contract which DEFRA is alluding to in the Guide to the Debate.
670. By contrast the NCC contract does no more to promote the hierarchy (in terms of the management of residual MSW) than address the provision of 170,000 tonnes of recovery capacity on the above terms. It therefore wholly fails to take the kind of holistic approach to driving waste up the hierarchy which was adopted in Shrewsbury.
The Reality
671. In February 2012 DEFRA published “Forecasting 2020 Waste Arisings and Treatment Capacity” (“2020 Arisings”). Mr Miles, and indeed all parties, accept these figures as the most recent, robust and authoritative national predictions of MSW and C&I waste arisings looking forward. Risk and uncertainty has been taken into account using the ‘Monte-Carlo’ method which predicts likelihood and is able to model the most likely scenario at 2020, and is clearly judged by Government to be the most robust forecasting methodology.
672. The applicants will no doubt try and question the applicability of this document. The applicants cannot question its robustness or that it is by some way the most up-to- date picture. Nor can they realistically suggest that Norfolk is not part of, or has somehow bucked, the national trend. There is certainly no evidential basis for suggesting that this is the case. To say that the quantification provided in MWCS Policy CS4 is more robust because it is local is an absolute nonsense. It may be more local, but it is plainly out of date and does not reflect the various factors that have occurred nationally and internationally (for example the timing and severity of the recession and the unexpectedly large increases in C&I recycling) that have rendered that historic local prediction inaccurate. The MWCS evidence base is in turn based upon figures dating from 2006/7 for C&I and 2009/10 for MSW [CD/G14, p 15 and Table 10]. The downturn, and the recovery, including a potential upward shock, have been fully taken into account in 2020 Arisings (see
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p7). We submit that the SoS should attach maximum weight to the figures in the 2020 document.
673. Mr Hollister has carefully considered the detailed forecast results in 2020 Arisings and its appendices. Applying those predictions, and on the conservative assumptions set out K15 (footnotes), which are all in line with the MWCS and/or 2020 Arisings: a) The MWCS predicted combined residual MSW and C&I waste arisings to be 621,147 tonnes; b) This is now predicted to be 474,757 tonnes; c) This represents a fall of 24%. d) The total C&I waste arising for 2020 fall from 951,000 to 743,679 – a revised prediction downwards by 25% only 2.5yrs later.
674. It is also interesting to note how the picture has changed since NCC committed to the contract. Mr Hollister’s analysis shows that it is the C&I predicted arisings that are falling most dramatically. However, in relation to MSW arisings the NCC business case for PFI credits prepared in February 2009 forecast MSW predictions in 2020 to be 480,651 for the County [CD/J4, p12, Table 2.2]. That business case was of course put to DEFRA and justified the grant of PFI credits. Amending it now in line with DEFRA’s own revised arisings predictions, the equivalent figure is 384,318 [K15]. The business case and the contract is founded on the MSW stream. The prediction is now 20% lower and, expressed in terms of economic benefit, the MSW arisings were overstated by 25%. This has consequences for the weight to be given to local finance considerations. To put it starkly, the basis of this project being good value for money for central Government no longer stands, and thus the weight to be given to any local finance benefits must be undermined.
675. The reality, therefore, is that predictions for waste arisings over the period of the contract must be revised downwards significantly. This calls into question the benefits of the contract and its value. Reliance on the figures in MWCS Policy CS4 no longer reflects the reality. The 2020 Arisings document shows by its purpose that EfW is not seen by DEFRA as a good thing per se. Nationally, and in any given case, its benefits derive from consideration of need, capacity and economics.
Minerals and Waste Core Strategy
676. The need for the facility is not specifically identified in the MWCS [CD/M1]. CS4 identifies a need for 703,000 tonnes of waste, but is not specific as to the recovery technology to be provided. Para 6.17 explains that the 703,000 (702,484) is a maximum requirement. This derives from Table A.2 [p104] which shows that the 703,000 figure represented a peak of recovery capacity required in one single year (2015/6): thereafter need falls away rapidly on an annual basis to be 546,117 at the end of the plan period. As a staging point on that descent at 2020 the forecast for that year was 640,058 or 621,147 (2019/20 and 2020/21 of Table A2), which compares to current predictions of 474,757, a revision downwards of 24-26%.
677. Therefore, the MWCS is based on a single peak year which is outmoded and inherently provides for overprovision throughout the plan period.
678. It is therefore inconsistent with section 38(6) of the 2004 Act to apply the MWCS as an estimation of need without taking into account the more up-to-date predictions.
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This is a good example of why the flexibility contained within section 38(6) is essential to good planning. Planning policy is permissive. A statement of need in the MWCS will not dictate the recovery capacity that is built – which will be determined by the market. To plan for a need that does not exist, or where the surrounding circumstances have materially changed, may provide a sensible hypothetical basis for the WSSA, but it will not secure the delivery of those allocations. This is, of course, a good thing. There is no benefit in the market over- providing recovery capacity which will not be properly utilised or providing it in the wrong way.
Local Assessment
679. Mr Miles has no challenge to the figures in Mr Hollister’s Table K15, subject to one caveat. Mrs Jeffery and Mr Palmer have no challenge to the figures, subject to the same caveat. That caveat is that DEFRA has produced national predictions not Norfolk specific predictions.
680. Firstly, the only point taken to suggest that Norfolk stands apart from the national position is that household growth predictions will vary from region to region. Unsurprisingly, this argument even if it were correct would make little difference, but in any event the evidence suggests the argument is simply wrong. Mr Hollister explained that the DEFRA statistics assumed household growth, which in the period to 2020 was a growth nationally of approximately 10%. The predicted Norfolk growth was 12.3%. If there were a linear relationship between household growth and waste arisings then the only effect of this small differential would be to increase residual MSW arisings in Norfolk by around 5,000 tonnes in 2020.
681. However, there is no empirical support whatsoever in the material before the inquiry that such a linear relationship exists. There is a reference in PPS10 practice guidance Annex D – para 8, which was referred to when Ms Jeffery was questioned, to an inevitable increase in waste arisings alongside household growth. However, in the 2020 Arisings forecasts for MSW in the period there is a 1.3% fall in the same period. It is therefore clear on the basis of the most recent and robust information that there is no such direct linear relationship. The influence of other factors is plainly as important if not more important (as shown by the inverse overall relationship). It is these other factors that are comprehensively modelled in 2020 Arisings but not in the local predictions.
682. Mr Miles has introduced information [C89] relating to three quarters of 2012/2013. Such a small data-set is of no value in trying to ascertain any long term trend, let alone to suggest that the 2020 Arisings predictions are not entirely robust over the period they address. Applying the 2020 Arisings predictions to the known MSW arisings in 2011/2012 from the 2012 AMR [CD/G18, section 5.4] reduced pro rata with the 2020 Arisings predictions over the period gives rise to a 2014/2015 MSW residual arising of 207,109. a) MSW
683. The Borough Council therefore relies on the following MSW predictions [K12 as updated by K15]: a) 2014/15 residual MSW arisings 207,109 b) 5% deducted as unsuitable for EfW 196,753
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c) Increased recycling (Dry Recyclables) 180,894 d) Material Works Limited (35,000 tpa) 145,894 e) Further alternative technology take up e.g. Breckland (24,022 tpa) 121,872*
*Breckland is taken as illustrative of a Norfolk Authority who has expressed interest in, using alternative technology such as MWL [K13, App9]
684. If stages (a) to (d) are accepted by the SoS as likely, then there is likely to be a substantial shortfall against the Minimum Tonnage to which NCC has contracted.
685. The first stage (a) has been addressed above. The other matters are addressed in turn below. b) 5%
686. Mr Hollister takes this figure from the applicants’ own planning application documentation [CD/PA10, 5.3.4 fn 46] and reduces the forecast amount of residual MSW by 5% in 2015 to reflect the proportion of residual MSW likely to be suitable feedstock for the EfW facility. It is fair to note that the 5% quoted refers to the combined residual MSW and C&I waste stream. However, there is no reason to consider that there is a material difference between the proportion of suitable residual MSW and residual C&I waste. Given that this figure was provided by the applicants it seems contrary for them to submit it is wrong and it must be assumed that they feel constrained to do so by the worsening arisings picture. Mr Hollister expressed himself entirely happy to use the applicants’ figure.
687. The applicants have suggested a lower percentage applies at Riverside. Such waste is, according to Mr Hollister, the subject of a waste acceptance scheme. No evidence has been submitted of comparable acceptance strategies that would suggest such a figure should be carried across from the Riverside facility where the delivery system by barge from Smuggler’s Wharf is plainly different. If such differences were likely no doubt this would have been drawn out in the applicants’ additional environmental information, which it was not, in favour of the 5% figure. c) Dry Recyclables
688. There is common ground that Norfolk Waste Partnership intends to award a new ‘Norfolk Dry Recyclables Processing Service’ to take effect in 2014/15. It is also common ground that this will increase the amount of dry recyclables collected at the kerbside across the county. The dispute is as to the extent of that increase.
689. Mr Hollister presents figures [K13, App6] that the predicted county-wide increase in dry recyclables collected is from 62,361 to 96,431 tonnes, and once the current ‘bring’ site dry recyclables are set-off in their entirety, the residual MSW leftover decreases by 15,859 tonnes. These figures were provided by the BC’s lead officer involved in the procurement process.
690. NCC now tries to diminish this figure by suggesting that the new contract will not contain glass and will only recycle a lesser amount. This is an example of precisely the kind of concerns the BC has expressed being played out in reality. NCC now has less interest in maximising recycling and therefore rather than being fully
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supportive of the more ambitious form of new contract, are seeking to support a lesser level of recycling. It is hardly as if household collection of glass is innovative, or generally viewed as uneconomic in the rest of the country – it is standard practice elsewhere.
691. However, at this stage there is no evidential basis on which to reduce the expectations set out above of obtaining over 96,000 tpa recycling, and including glass. The applicants who claim to be supportive of the waste hierarchy and the WDA who are under a qualified duty to act to drive waste up the hierarchy, are pouring cold water on the proposal to collect the readily collectable and recyclable glass component. Document C86 provides no basis for this negativity. Tenders are being sought to include glass recycling. The 86,000 tpa is simply a “notional” annual tonnage figure provided for the basis of tender evaluation. It is therefore not comparable to the 96,000 figure of Mr Hollister - which is what such a contract is actually expected to manage (based on the analysis undertaken by White Young Green on behalf of the Norfolk Waste Partnership).
692. Finally, there is no disagreement that recycling of MSW arisings proportionately is increasing and will continue to increase. Mr Hollister’s approach is to take the best empirical evidence available to posit a likely scenario in the year 2014/2015. It is submitted this is the best approach to considering the likely impacts of the facility on the waste hierarchy. Forecasts can be uncertain. Similarly, it is a particularly forensic exercise to consider past predictions of arisings/recycling rates and then analyse what was or was not likely to have been included in those forecasts – for example, whether the dry recyclables were collected. For example, the evidence base for the MWCS [CD/G14, p10, para 1.3.4.1] predicts recycling rate to increase incrementally to 50% in 2019. The applicants suggest this includes the dry recyclables, but the BC disagrees. However, the debate may be sterile. The approach Mr Hollister takes avoids such forensic issues and focuses on the best current predictions of arisings in light of known measures being taken. This is far better for the SoS as it is based on the best information available to him now and recognises the real likelihood of there being a substantial shortfall in MSW arisings. d) Material Works/Alternative Technology
693. The relevance of Material Works Ltd (MWL) to this inquiry is that the BC has entered into a Framework Agreement with MWL on 13 December 2012 [CD/J7]. The contract is subject to certain preconditions being discharged (Schedule 4, clause 1.2.1), upon which the contract will lead to the recycling of the 35,000 tonnes of residual MSW collected by the BC. From the BC’s perspective, and one would expect (bar the contractual issue) also NCC’s perspective as both WDA and WPA, such an outcome is highly desirable in terms of the waste hierarchy, proximity and self-sufficiency. It also has a substantial impact on predictions of residual MSW, because 35,000 tonnes of the stream relied upon by NCC and the applicants will no longer be residual waste [K12, para 4.3.7]. If other authorities in Norfolk followed suit, which is to be expected, the residual MSW would further reduce in favour of enhanced recycling. It is to be hoped that in its final submissions NCC as waste planning authority is supportive of this scheme and in due course will provide assistance through the planning process, given the scheme’s obvious benefits over incineration in terms of national waste policy.
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694. The Minimum Tonnage applies throughout the period of the applicants-NCC contract. MWL is the chosen partner for the BC through the Framework Agreement. It is not the only developing alternative technology. Therefore the fact that MWL is taking a few months to achieve End of Waste certification and in establishing sites for its processing, is neither here nor there.
Stage Reached
695. There are a number of preconditions [CD/J7, para 1.1.2]. Mr Billson explained clearly the stage reached in relation to each.
696. Demonstrator Plant: All of the necessary plant and equipment is built and ready for installation. Mr Billson is in discussion with a number of site owners with a view to agreeing the terms of acquisition.
697. End of Waste Certification: This is addressed in more detail below.
698. Environmental Permit: This cannot be applied for until a site is selected. The applicants have not suggested that there would be any difficulty in obtaining an EP.
699. Funding: Mr Billson is in commercially sensitive discussions with a number of sources of funding. The details for obvious commercial reasons cannot be disclosed. Mr Billson is confident that there will be no delay to the project by the need to obtain funding. It is important to recognise that the Framework Agreement has been entered into. This provides a basis upon which funding can be raised, so avoiding DEFRA’s lament that it is hard for small companies promoting innovative technologies to obtain funds and the procurement specification [CD/U32, para 170]. Subject to the pre-conditions being met the waste stream has been secured.
700. Planning permission: This is closely aligned to the question of site selection and acquisition. If a suitable site is selected then the need for planning permission will not be a bar. Although the site required for MWL is large, the nature of the use is such that it can take place on general industrial land, as agreed by Mr Billson, and this would be in accordance with policy CS6 [CD/M1].
701. Site Acquisition: This issue is addressed through Method Statements 6 and 8 [CD/J7, p23/49], which provide for MWL identifying suitable sites subject to agreed criteria, and then acquiring a suitable site subject to planning permission. Mr Billson explained that it is intended the relevant planning authority would be involved in that process. However, contrary to the implication of Mr. Billson’s cross- examination there is no requirement that a site be identified at this stage, and the process which is currently on-going is entirely within the contemplation of the parties to the Agreement.
702. Viability: this viability pre-condition in the Call Off period relates to the technical viability of the processes of the MRF, Saltus, and Trinity Extrusion process, and of those three in combination to produce a stable, useable product [ibid, Clause 1.1.4, Schedule 4]. These matters have all been addressed by Mr Plummer by way of an independent verification. Mr. Plummer was not asked, nor was it required under the Agreement, that he should test the financial viability of what is proposed. It can be assumed that financial viability will be carefully scrutinised by any funder and therefore that is not a matter which the BC needs to separately assess. www.planningportal.gov.uk/planninginspectorate Page 147 Report APP/X2600/V/12/2183389
Technology
703. There is no dispute that the technology can work. Mr Billson in his written and oral evidence has explained the process in detail. In addition, the BC has instructed Robin Plummer to carry out an independent verification of the processes (as required as a pre-condition of the Framework Agreement). Robin Plummer provides a detailed technical review [K13, App7], which concludes: 1) The processes are scientifically sound for use with the typical mix of residual MSW and are planned subject to good manufacturing and engineering controls; 2) There is no reason why the processes cannot be operated at a commercial scale, consistently and reliably processing 35,000 tpa. (In fact Mr. Billson gave evidence that scaling up the processes aids their robustness, both because it makes the mix of waste necessarily more homogenous, and because it allows greater retention of heat within the systems).; 3) The planned process will be capable of generating a stable fibre polymer which is capable of achieving End of Waste Certificate status; 4) Omnicite (the intermediate product) is capable of subsequent extrusion into building products through the Trinity process.
704. In addition Mr Plummer has considered the points raised in the evidence of Mr Aumônier, noting that Mr Aumônier has “little disagreement with the majority of [his] report”[C73], and that “the technologies employed are proven” and commented as follows in response to the suggestion that it was unnecessary to discuss what was an historic process: “The “process” referred to in this paragraph is the whole system that Material Works proposed to the Council as described in the schematic, including Saltus, Trinity, LADS, hoppers and process controls, etc. It was necessary to visit Mr Billson to fully understand what he was proposing and why, and to understand the intricacies of some of the process controls intended to minimize or eradicate various potential effects of the process inputs upon the process output. The “technologies” explained to the potential investors early in 2012, referred to in this paragraph, refer only to the Saltus and Trinity technologies, which are only components of the Material Works system as a whole. It would be inconceivable for us to produce a meaningful report on such a system without having detailed discussions with its designer to ensure we fully understood it, especially as the overall technology as indicated in the schematic diagram proposed to the Council represents a considerable enhancement of the technologies that were originally reviewed at the time of the factory visit in May, 2011, and subsequently in early 2012.”
705. It is highly relevant that the applicants, despite the scrutiny applied to MWL, are unable to offer any suitably qualified engineer or other expert to suggest that the technology will not work entirely as described by Messrs Plummer and Billson. Mr Aumônier is not so qualified, but in any event, he does not dispute the proposals on technical grounds. Despite offers, [K43], Mr Aumônier, nor anyone else on behalf of applicants, has made any attempt to visit Mr Billson’s plant in Chester, and has not communicated directly with Mr Billson in order to raise questions or understand the process or its products any more fully. If the applicants had done so, perhaps they would have been convinced that this proposal will work. The problem for the applicants, however, is that it is not them that MWL is seeking to convince – as they would use an alternative and less preferable technology. The BC has already satisfied itself, and invites the SoS to agree with it. There is an important point of www.planningportal.gov.uk/planninginspectorate Page 148 Report APP/X2600/V/12/2183389
principle here, that if waste is to be pushed up the hierarchy in accordance with policy, innovative technology must be supported, and most importantly must be supported by public authorities such as the BC, and indeed NCC as WPA and WDA. Otherwise the stance taken by large firms such as the applicants with a strong vested interested in EfW and proven technologies will lead to waste that could be recycled being recovered.
706. The applicants therefore fall back on no more than commercial interest and scepticism. It is ironic given its own business success that in this regard it does not appear to recognise that waste treatment technologies progress and innovate in line with the Government drives to move waste up the hierarchy, and economics also change as a result.
Financial Success
707. It is no pre-condition of the contract that the MWL proposals achieve a particular profit-level. The profitability of this proposal is a matter for MWL. The BC submits that this is not a matter for the SoS. The applicants has provided no analysis of the potential profitability of the MWL proposal, has undertaken no testing of likely markets or products, has not considered any cost implications of the proposal, or the availability of funding. The fact is that this proposal is being progressed by MWL as a commercial and profit-making enterprise and it is convinced it will deliver.
708. The pre-conditions of the Framework Agreement have the effect that MWL bears the responsibility of finding a site and obtaining the necessary planning and environmental consents. The BC has no doubts that the technology will be effective. The question is then one of funding and not an analysis of different ventures by different or related ventures and their profitability, nor indeed an analysis of the future financial success of MWL or other forms of alternative technology. What is clear is that due to changing regimes of tax and credits, environmental education increasing, and the economics of the waste market, the successful technologies in twenty years time will be different from those promoted now or in the previous twenty years. The Framework Agreement does not rely on an investment in an alternative technology by the BC. Mr Billson has explained that there is significant interest from investors and he is in commercial discussions with a number of them and that the project is eminently capable of being quickly funded and delivered.
End of Waste
710. The BC has at all times not only accepted but indeed insisted that the End of Waste issue is critical to the contract and the success of the scheme. It is the outcome of this issue that ensures the waste is recycled rather than recovered in legal terms. Therefore the SoS does not need to seek to determine this issue for himself.
711. MWL is taking its own advice in relation to this issue and has made an application to the EA End of Waste Panel in September 2012 in relation to the status of Omnicite produced from residual MSW. Mr Billson explained that the process has taken longer than anticipated due to the EA proceeding cautiously. A number of questions were asked and have been addressed by MWL’s adviser, Tony Dean of Dean Weeks Consultants Limited, who is a former Regional Director of the EA. There are now no questions unanswered by MWL and the application will be taken to the End of Waste Panel in the near future.
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712. In the meantime, the only questions raised in relation to the End of Waste issue come not from the EA or NCC as WPA, but only the applicants as the operators of the proposed incinerator, and NCC as the party contracted to supply 170,000 tpa of residual waste to that incinerator. Those questions can be addressed straightforwardly on an interim basis.
713. Water: Mr Aumônier suggests that due to the water content of residual MSW a process which returns water to the environment via either a soakaway or the surface water sewer would not be recycling, even if End of Waste status is achieved. Mr Aumônier does not provide any policy support for his argument or any precedent. This argument flies in the face of common sense, and experience elsewhere – for example in relation to composting, where the large part of the high water content returns to the environment though evaporation but 100% recycling credits are awarded.
714. The applicants also rely on a briefing note from the WDA [C81, App 11 H3] – unattributed and unreferenced – which states that “recycling credits are only paid if a process is proven to be a genuine recycling process as opposed to waste treatment and disposal process that recovers a lower percentage of materials for recycling”, notes that there is no prescribed recycling percentage, but offers (again unreferenced) that ”a useful benchmark is that the majority of waste withheld for recycling by Waste Collection Authorities is processed at facilities achieving around or well in excess of 90% separation of materials for recycling”.
715. There is no explanation of what is meant by “90% separation of materials”. However, Mr Aumônier agreed that the recycling credit is paid simply by reference to the input tonnage. Therefore, once it is recognised that the MWL process is recycling the recycling credit will be paid in relation to the 35,000 tonnes. The WDA Note does not deal with water content, and does not purport to suggest that recycling credits would not be fully payable in a composting process. Mr Aumônier agreed that there was no guidance or policy to support his assertion in relation to hiving off the consideration of water, and he was unaware of any example where a process that led to end of waste status for its product would be discounted as recycling as a result of the amount of water returned safely to the environment through surface water or soakaway drainage.
716. Regulation 14 (Waste (England and Wales) Regulations 2011: Mr Aumonier suggests [C73, para 59] that this regulation would be breached in the event that MWL added separately collected used plastics into the process.
717. Regulation 14 provides: (1) An establishment or undertaking which collects, transports or receives waste paper, plastic, metal or glass must, from 1 January 2015, take all such measures available to it in that capacity as are reasonable in the circumstances to ensure that where the waste has been collected separately it is not mixed with other waste or other material with different properties. (2) This duty applies only where keeping waste separate facilitates or improves recovery”.
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718. This argument is poor legally. The contract will only progress if the Omnicite (and therefore the Rexylon) achieves End of Waste status and is therefore no longer waste. In these circumstances any material inputted to that process as separately collected plastics will be a waste input into a non-waste, that is recycled, product and regulation 14 would have no application. As Regulation 14(2) explicitly states, the duty applies where keeping the separately collected waste separate facilitates its recovery. In the MWL process both waste streams are united to form a recycled product (above recovery in the hierarchy) so reg 14(2) does not apply.
Product
719. Mr Aumônier’s scepticism as to the ability of the process to produce a consistent product appears to have no basis in evidence or experience. Indeed, he confirms that he “cannot comment on the report’s conclusions with respect to the properties of the product”[ibid, para 65]. An expert answer is given by Mr Plummer, which supports Mr Billson’s position: “The answer is in the extensive process controls that have been planned into the system; at each stage the outputs are measured and analysed, so that the input into the next stage in the system can be adjusted. We are satisfied that, if these process controls are properly implemented as planned, the system will be capable of delivering a consistent product to a defined specification.”
720. Mr. Aumônier’s concern appears to be around the fact that MSW is not of a uniform composition. However, it is fundamental to the MWL process that there is a high level of screening and testing throughout the process, thereby limiting any unacceptable variations, but also ensuring that variations can be dealt with by, for example inserting more polymers (or fibres) into the process as needed.
721. In terms of accessing additional polymers (post use products) which will be needed into the process, there is absolutely no reason to doubt MWL’s ability to find such plastics. Mr. Billson has already commenced discussions with companies such as Palm Paper and Pinguin Foods to be sent their post-use plastics such as packaging.
Weight
722.It is fair to note that the applicants have scrutinised MWL, its processes and its personnel with a view to suggesting, presumably, that MWL’s ability to deliver the contract cannot be relied upon. This approach is motivated purely from their own commercial self-interest in protecting the feedstock for their incinerator. MWL is a rival waste treatment technology which treats waste higher up the hierarchy. As the Framework Agreement demonstrates, MWL has the potential to compete with the applicants and cause it significant financial detriment. As a result, the applicants appear keen to conduct its own research into MWL as a company with a view to discredit it. This approach may be motivated by commercial reasons, and this perhaps explains why the company information on Mr. Billson’s companies, was provided late in the day prior to Mr Billson’s cross-examination. However, the history of Mr. Billson’s companies is of very limited relevance to the SoS in determining this application. There is something of a contrast here with the applicants’ approach to the MWL technology, which they chose not to investigate at all, but is actually a far more important issue for the SoS.
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723. The BC, unlike the applicants, is not motivated to promote MWL or any related company by any financial interest. The position of the BC is simple. The Framework Agreement has been entered and if the conditions are met then the BC will deliver its waste to MWL to be recycled rather than incinerated. The BC is not financially committed to MWL, and the Framework Agreement is constructed to be financially neutral. Mr Billson has attended the inquiry and, it is submitted, given good reason for the SoS to be able to find that it is likely that this scheme will go ahead successfully.
724. There is a serious danger that by supporting a very large EfW at the site the SoS will end up promoting a technology which is lower down the waste hierarchy i.e. recovery, rather than maximizing the potential for recycling. There are very strong indications that the type of technology being put forward by MWL is on the point of becoming more widely used and available. But this preferable technology needs to be given the strongest possible assistance by planning authorities, and the SoS. It would be particularly unfortunate if, as a result of an historic and oversized contract, a recovery facility for the county’s waste was located in the borough striving to promote that alternative technology.
Commercial and Industrial Waste
725. Mr Hollister’s table [K15] shows on the more robust recent analysis highlights the overstatement in predicted C&I waste arisings in the MWCS. This point is made above. It also shows that in 2020 there is likely to be 282,598 tpa of residual C&I waste arisings. There is therefore no dispute that there will be a substantial amount of suitable C&I waste to fulfil a top-up or substitution function under the NCC-CW contract. There is now agreement that this figure should be reduced by 11.5% (250,099) to reflect the amount that cannot be treated through the EfW plant [C90].
726. Although the predicted residual C&I waste arisings for the whole of Norfolk remain sufficient to provide top-up or substitute waste, the C&I waste market is a highly competitive one. The waste is footloose, non-contractual and can shift disposal/treatment locations in short periods. The principal driver for the disposal of C&I waste will be cost – for the most part comprised of transport costs and gate fees. The facility will aim to operate close to its 275,000 tpa capacity to maximise economies of scale and maximise revenue through energy generation. It is therefore likely to be seeking to make up potentially in the region of 150,000 tpa from residual C&I waste. This is the lion’s share of Norfolk’s predicted residual C&I waste arisings in 2020 [K12, Table 2]. Facilities such as the plant need the waste in order to generate electricity. They will therefore have to cut gate fees in the face of a competitive market.
727. In seeking this waste the facility will be competing against large-scale competitors, such as the facilities in Peterborough and Suffolk, as well as the European export market. The PREL facility has a very large capacity. There is a restrictive catchment condition. However, the point is that a facility such as this will be able to treat the vast majority if not all the locally arising C&I and still have capacity for some out-of-county C&I, consistent with the catchment condition. It will therefore have an important impact on gate fee pricing, and will be an alternative facility for a fair amount of the same waste.
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728. The current market for the export of waste to northern Europe is recognised in the DEFRA Guide to the Debate [CD/U32, para 55]. Again, this is the result of competition in the waste market and market forces as opposed to any controlled application of the proximity principle. The issue is not whether it is a good or bad thing, but simply that the market will dictate both competition and a falling gate price. There is every reason to believe that as waste arisings fall across Europe, and more RDF facilities come on stream in East Anglia the attractiveness of sending C&I waste to, inter alia Amsterdam, can only increase.
729. The outcome of this competition and the growth in recovery capacity nationwide, together with increasing landfill tax, has already been the sharp fall in C&I waste gate prices for recovery facilities. The short point is that it seems almost certain that the gate fee that the applicants will be able to charge to attract sufficient waste to its facility will be considerably lower than the Unitary Charge.
730. As an example, there has been no real demurring from Mr Hollister’s estimation of the Unitary Charge at £110 per tonne (based on the only information the BC has). WRAP 2012 report produced by Mr Boldon [C13, App2] shows the median gate price for 200-300 tpa capacity EfW plants to be £76, with the lower end of the range being £56. The WRAP reports from 2010-2012 [K3 & K4] show a steadily decreasing landfill gate fee (minus tax) attributed to competition [C13, App2, p6], and a steep downward trend in modern EfW facility gate prices (2010: £92; 2011: £81, 2012: £76). These figures include WDA contract prices as well as the more competitive footloose streams. It is impossible to see how that trend will not continue to be downwards as more EfW capacity comes on stream and residual waste arisings continue to fall.
731. What this shows is that due to (a) the inflexible terms of the contract on tonnage yet (b) its failure to offer an integrated solution and (c) the ability on the applicants to make up the shortfall based on economics where (d) the evidence from the market is that there is a gulf between the Unitary Charge and the realistically available gate fee then if there is a shortfall in MSW delivered to the facility there will undoubtedly be a very substantial financial penalty on NCC. It should be said that ironically this penalty results directly from the PFI credit intended to be a grant to NCC, but due to the way in which the contractual provision has been managed, it will become a disadvantage.
732. The applicants and NCC started the inquiry by putting considerable weight on the argument that regulation 12 would prevent the BC’s fears on the hierarchy coming true. However, it is quite apparent that this reliance was misconceived. As Mr. Boldon accepted, regulation 12 allows the public authority to have regard to issues of financial expediency in performing this duty. Therefore, the cost to NCC of taking steps to maintain or increase recycling, including the costs resulting from the applicants’ contract, would be a relevant consideration and so regulation 12 would not prevent them sending the waste to the Willows, even if it was perfectly capable of being recycled.
Conclusion on Hierarchy
733. The evidence shows overwhelmingly that the waste figures in the MWCS can no longer be relied upon and that the figures that formed the basis of NCC’s business
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case and the grant of PFI credits, are now seriously out of date and considerable overestimates (in the region of 25%).
734. There is a strong probability that NCC will not be able to achieve the GMT, and that the only way to attract C&I waste to make up the shortfall will be by offering a price way below the UC. The only evidence against this was Mr. Boldon’s confidence, for which he gave no supporting evidence.
735. In these circumstances the incentive on NCC to row back on its already less than brilliant recycling record, and allow waste which is perfectly capable of being recycled to go to the facility instead, will be overwhelming.
736. This proposal is likely to act not to push waste up the hierarchy, but to keep it for many years only on one rung from the bottom. Government policy, including both the latest draft Waste Management Plan for England and draft updated PPS10 continue to support the waste hierarchy [K48].
Proximity Principle
737. It is difficult to understand precisely the views of the applicants or NCC of the proximity principle. There can be no doubt on any reading of the various policy statements that the proximity principle imports a geographical link between the source of waste arising and treatment. Nor can there be any doubt following the introduction of Regulation 18 of the Waste (England and Wales) Regulations 2011 [CD/L8] that recovery treatment of mixed municipal waste collected from private households (including where such collection also covers such waste from other producers) is subject to the same requirement as disposal, consistent with Article 16(3) of the rWFD [CD/L6]. Regulation 18 requires planning authorities in exercising its planning functions to have regard to Article 16. Article 16 links proximity and self-sufficiency. Critical elements of this duty are to establish an integrated and adequate network of recovery installations of mixed municipal waste from private households which enables waste to be recovered in one of the nearest appropriate installations. The DCLG provides guidance in December 2012 [CD/U30, Annex 2] specifically for local planning authorities to implement this requirement: Self-sufficiency: “Waste planning authorities should ensure that, as far as is practicable, sufficient waste disposal facilities and facilities for the recovery of mixed municipal waste collected from households exist within their local waste planning area. Proximity: Waste planning authorities should ensure that waste disposal facilities and facilities for the recovery of mixed municipal waste collected from households are sited to ensure compliance with the proximity principle.
738. Likewise, the DEFRA Guide to the Debate [CD/U32] addresses what it terms “the proximity principle”. This warns against any over-interpretation of the principle to mean “that all waste has to be managed as close to its source as possible to the exclusion of other considerations, and that local authorities individually need the infrastructure required to do so [ibid, para 131]”. The same paragraph continues “while there is an underlying principle of waste being managed close to its source, there is no implication of local authorities needing to be self-sufficient in handling
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waste from their own area.” The document recognises, as does the BC and Mr Hollister, that “one of the nearest” does not have to be the “absolute closest” facility “to the exclusion of all other considerations including cost”, and that it “may be justified to use a more distant solution if it provides a more appropriate method or technology to ensure overall a higher level of protection of the environment and public health”. The BC disagree that the draft Waste Management Plan for England reinforces the points from U32 but that, instead, it brings the understanding of the proximity principle closer to their position [K48].
739. It is a critical element of the legislation and policy that there should be this geographical nexus between arisings and recovery. This is agreed by Mr Palmer. The proposed facility is intended to treat most, if not all, of the county’s residual MSW. It is promoted on the back of the contract with NCC for that purpose, and justified by the applicants in the context of the Norfolk MWCS. The MWCS readily acknowledges this geographical nexus in paragraph 6.20 which explains the purpose behind CS5: The production (and therefore, through the proximity principle, the management and disposal) of waste is likely to be concentrated in the county’s larger settlements.
740. The proposal will be the first sizeable recovery facility in the County, and will in all probability be the only one. It will certainly be the only Norfolk EfW facility for residual MSW, and probably the only EfW facility for the treatment of Norfolk’s residual C&I waste as well. Norfolk is therefore a blank canvas in terms of the location of EfW facilities. It is not a question of whether to use the nearest facility, or a more distant one. It is a question of establishing a facility that complies with the proximity principle. The applicants have put forward no justification for its location at more or less the furthest point from the centre of gravity of residual waste arisings based upon it producing (a) a more economical solution, (b) allowing a more appropriate method or technology to be deployed, or (c) to ensure overall a higher level of protection of the environment or public health (referencing the factors identified in CD/U32 paragraphs 151 and 152). In other words there is no justification asserted for completely ignoring the proximity principle.
741. Put simply, there is common ground in all policy documents – unsurprising given use of words such as “nearest” and “proximity” – that there is an underlying geographical functional link between the source of waste arising and treatment. This facility is for Norfolk’s residual MSW. It is distant from the main sources of arisings. That distance is not justified positively by any relevant factor. There is no proposed network of other EfW facilities to redress this geographical imbalance, nor is there ever likely to be. The proposal is therefore directly contrary to the concept embraced by the principles of self-sufficiency and proximity.
MWCS CS5
742. The development plan must be read as a whole and each policy read in context. Regard should be had to the purpose of the policy, and the supporting text forms part of the development plan. In this case CS5 must be informed by the supporting text, critically the exposition of the proximity principle in paragraph 6.20, and in the context of current national policy on waste treatment including the principles of proximity.
743. In relation to the proposal, debate as to the role of the self-sufficiency principle is academic. The BC would accept that in certain circumstances the principle can be
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met in relation to larger administrative boundaries than the area of the WPA (although note U30 cited above). Such debate is arid in this case. The Contract between NCC and the applicants relates specifically to the Norfolk administrative boundary and the duty relating to Norfolk’s residual MSW. Policy CS5 only applies in Norfolk. It follows that this inquiry cannot be diverted to consider whether indeed the facility should be planned outside Norfolk, on the basis of falling waste predictions.
744. However, the proximity principle must be read together with the principle of self- sufficiency (as in Article 16, rWFD). Thus this inquiry is considering the proposal against policy CS5 in the context of the need to provide a residual MSW recovery facility in Norfolk and recognising that there needs to be a geographical link between the production and management of waste in that area, as Mr Palmer agreed when questioned.
745. Policy CS5 makes this connection in that context by requiring strategic waste management facilities to be “well-related” to the main settlements. The BC submits that when read fairly in context and purposively this policy requires strategic facilities to be well-related to the main settlement that they primarily serve.
746. The applicants’ response appears to be to ignore the purpose of the policy and rely on the word “or”. This is an approach that ignores the context and purpose of the policy and requires selective reading. It is also unhelpful. “Or” was needed, because otherwise each strategic facility would have to be well-related (i.e. within 10 miles) of Norwich, Great Yarmouth, Kings Lynn and Thetford – impossible even on the applicants’ flexible approach to the proximity principle and would have had the effect of imposing an undue rigidity into the policy.
747. The County’s approach does not coincide with the applicants’ response. Mr Palmer considers in his proof that the basis for securing a geographical link between arisings and treatment would be met in Norfolk by further subsequent facilities being delivered across the county to form a “network” [N10, paras, 8.10, 8.14, 1.18] of recovery facilities, as confirmed when questioned. This reading is thus consistent with the BC approach in that it requires the facilities to relate to the individual settlements, but is based on an assumption about future facilities coming forward. It is also consistent with the supporting text of the MWCS at 6.23 where it notes that even if this PFI proposal were taken forward (upon the acceptability of which no view is expressed (and this is confirmed in the Inspector’s report [CD/G9, para 40]) “there is a particular need for new recovery (residual waste treatment) capacity to serve Norwich Policy Area, Thetford and Great Yarmouth urban area…”.
748. This interpretation is also consistent with the indicative figures provided for recovery capacity in policy CS4 where the 370,000 tpa of recovery capacity in the first period is seen indicatively as comprising 3 to 5 plants of 50,000 to 75,000 tonnes, and similarly 330,000 by 2020 is indicated as 3 x 100,000 tonnes and 1 x 33,000 or 6 to 7 x 50,000 plants.
749. The difficulty for Mr Palmer and NCC is that such reliance on other proposals coming forward well-related to the other main settlements cannot be relied upon at this inquiry as no such facilities are proposed. Further NCC cannot suggest any such proposals are likely. Notwithstanding the CS4 figures, it is now apparent that these figures, already a maximum, will not be borne out. The delivery of further facilities does not depend upon the forecast waste arisings in a planning document www.planningportal.gov.uk/planninginspectorate Page 156 Report APP/X2600/V/12/2183389
but on whether the market considers there to be sufficient feedstock to make the proposal feasible. It is now clear, and no witness for the applicants or NCC has been able to suggest otherwise, that if the facility is permitted there will not be a further EFW facility for the treatment of residual MSW in the county – there will be no need for any further MSW recovery at all – and there will not be any further strategic scale recovery facility for any waste stream. This then forces Mr Palmer and NCC to an inconsistent suggestion that, notwithstanding the accepted need in policy for a geographical link between arisings and management, a plant of 700,000 tpa in King’s Lynn would comply with CS5.
750. The applicants’ position can be stated simply. It ignores the proximity principle entirely, and ignores the fact that the facility will be provided at the most remote point from the greatest waste producers which are to the centre and east of the county. This denial that the proximity principle has its focus on geographical proximity has been a consistent theme of the applicants and indeed NCC as WDA. Thus the Mott MacDonald site selection exercise which led to the choice of the site by NCC for the procurement exercise omitted to consider the consequences of the proximity principle [K34, app A]. Similarly, in carrying out its ASA, the applicants did not include any comparative consideration of sites based on proximity to waste arisings. Indeed the Proximity Principle was entirely ignored. Thus in the context of a proposal to treat the whole county’s MSW a site in Costessey is seen as no better than a site in Kings Lynn – when the reality is well-shown in Mr Hollister’s Figures A and B.
751. For some understanding of how far the balance lies in the east the relative population figures are: Norfolk: 860,000 Norwich Policy Area: 250,000 Great Yarmouth: 70,000 King’s Lynn: 50,000
752. King’s Lynn lies 44 miles to the west of Norwich and 66 miles from Great Yarmouth by road, and contains only 6% of the county’s population. Even taking generous assumptions against himself in his oral evidence, Mr Hollister calculated that King’s Lynn produces approximately 105,000 tpa of residual waste, against arisings in 2009 for Norfolk of 1.225m [K15] or 8.5%. It is apparent that the overwhelming majority of residual waste will be hauled the breadth of the county.
Flood Risk
Policy
753. The purpose of the sequential test is set out in the plainest possible terms in the Framework, [CD/U1,para 100]: “The aim of the sequential test is to steer new development to areas with the lowest probability of flooding”. The application of the test is equally plain: “Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding” [ibid, para 100]. Paragraph 101 also stated: “A sequential approach should be used in areas known to be at risk from any form of flooding”.
754. The BC considers the Framework to be unambiguous. It does not require a constrained interpretation. In particular, a number of the arguments floated by applicants, when questioned, are an erroneous approach: www.planningportal.gov.uk/planninginspectorate Page 157 Report APP/X2600/V/12/2183389
(a) PPS25 has been cancelled [ibid, Annex3]. It cannot lawfully be applied or used as a guide to the NPPF; (b) The consideration of the flood risk vulnerability classifications in Tables 2 and 3 of the Technical Guidance on the NPPF are entirely separate from the determination of the Flood Zone and the application of the Sequential Test. This is explicitly stated in footnote 'a' to Table 3. The sequential test applies to all forms of development; (c) The WSSA is not an adopted DPD and so paragraph 104 of the NPPF is of no application. In any event, the BC has objected to the sequential assessment undertaken in the context of the WSSA.
755. Consistently with this, DM4 of the MWCS [CD/M1] requires the sequential test to be applied to all proposals.
Flood Zone
756. The applicants disagree with the EA, NCC (the waste planning authority), and the BC (the local planning authority) as to which Flood Zone the Application Site lies within.
757. The EA are in no doubt that “the proposed development lies within Flood Zone 3, the high risk zone as defined by PPS25. Paragraph D5 of PPS25 requires decision- makers to steer new development at areas at the lowest probability of flooding by applying a “Sequential Test”. The EA stated it would retain its objection until a sequential test demonstrated there are no reasonably available sites in areas with a lower probability of flooding, i.e. FZ1 or 2. Their objection continues “The proposed development site lies within Flood Zone 3 but benefits from nearby defences”. It would be disappointing if the applicants were to submit that the EA had somehow misunderstood flood risk at the site, or ignored its own protocol agreed with the Borough Council. It would also be oddly inconsistent with the applicants’ position throughout many other areas of its case (e.g. permitting, air quality, emissions, waste regulation). However, any such suggestion would be untenable in light of the wording of the EA objection.
758. Likewise, NCC considers the site to be in FZ3 [N12, App1, stage 1]. The sequential test was carried out by NCC on the basis that the site was in FZ3, and the geographical area of search was the county of Norfolk. The application of the sequential test is a matter for NCC and not EA, who removed their objection on sequential test grounds on the assurance from NCC that the sequential test had been passed on the basis of the FZ3 categorisation [K33, App3]. Mr Palmer confirms “Dr Campbell states in paragraph 4.3.22 of his evidence that the application site should be classified in the ASA as Flood Zone 3. This is correct…”.
759. The EA has not at any point altered its view that the site is FZ3. NCC also continues to consider the site as FZ3 for the purposes of the sequential test, and NCC has not challenged the EA or the BCl view in this regard. This is an issue on which NCC (and EA) are at odds with the applicants. Mr Robinson has explained why the categorisation of FZ3 is correct. Mr Robinson is well-placed to make this assessment with a great deal of direct experience in strategic flood risk assessment (having been directly involved in 50 SFRAs, 12 of which were specifically on the East Coast of England, whereas Mr Armitage had not been involved in any East Coast SFRA).
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760. Relating to the purpose of the sequential test identified above the objective is to protect development from flooding and to promote sustainability by placing development where there is the least need to defend it in the future and against climate change. In each case, if a site is defended there are two relevant factors that go to the probability of flooding. Firstly, as is acknowledged by Mr Armitage, there is a residual flood risk due to the possibility of defence failure. Secondly, if the protection is to continue in the future, it will be necessary for the defences to be maintained and improved, in the case of tidal flood risk, to account for rising sea levels. On any reasoning, the development represents a long-term development dependent on the flood defences.
761. It is common ground that were it not for the defences of the River Great Ouse the Application Site has a greater probability of flooding than 1 in 200 from the sea, as shown on the EA undefended maps, and so is correctly considered to be within FZ3.
The applicants’ position
762. Alone at the inquiry, the applicants suggest the Application Site is in FZ1. Mr Armitage accepts that the classification must take into account climate change impacts [C50, para 3.13.1(i)]. Therefore, the only basis on which this argument can succeed is if the SoS considers that the site will be in FZ1 for the lifetime of the development, notwithstanding the EA’s advice that the site is presently within FZ3.
763. In turn, this requires therefore an acceptance that: (a) the only basis for considering the question of Flood Zone should be the Kings Lynn SFRA (G50); (b) that notwithstanding (a), the SFRA should not be applied as drafted, that is to assess climate change to 2115, but it should be modified to reflect the bespoke FBA undertaken by the applicants.
764. The first reason why the applicants’ case does not get off the ground is because the King’s Lynn SFRA self-evidently addresses flood risk issues in the borough of King’s Lynn. The sequential test is required to consider the geographical area of Norfolk.
765. This circle cannot be squared by referring to the NCC SFRA prepared in the context of the MWCS [G15]. As explained by Mrs Jeffery and Mr Robinson this SFRA is no more than an amalgamation of the individual district/borough SFRAs [CD/G15, p4]. The county-wide SFRA provided an opportunity for a consistent approach to be taken by developing a consistent data-set with a common methodology and approach to flood defences. This opportunity was not taken.
766. The approach in King’s Lynn (G50) has been explained by Mr Robinson. It takes the defences into account in determining the Flood Zone (called Flood Categories in the document). For this purpose it assumes that hard defences (such as protecting the Application Site) will not fail [C12, paras 5.13 & 5.18]. Breach hazard was mapped [C48, paras 5.27 & 5.38], but this was not used in determining the Flood Zone [C51]. The SFRA therefore assumes that the hard defences are perfect for the period to 2115. Mr Robinson does not criticise the SFRA or suggest that it is inappropriate for the assessment of development needs within the borough of King’s Lynn as such development will therefore be considered under the SFRA on a consistent basis. However, he notes that the approach of assuming perfect hard defences in determining the flood zones themselves (as opposed to refining risk
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within a given category) is unusual [C50, para 3.1.7]. This is very relevant when it comes to carrying out the county-wide exercise in a consistent way.
767. By way of contrast, Great Yarmouth SFRA [G66] maps the flood zones on an undefended basis, as stated by Mr Robinson in evidence and confirmed by Ms Jeffery in her evidence (see 1-series maps and pp3-4, Table 1). Thus the Application Site would be treated on a consistent approach as in FZ3. Flood defences are taken into account in refining FZ3 by reference to comparative residual risk taking into account hazard mapping. In this way the SFRA directs development first to FZ1 assuming no defences, then FZ2 on the same basis, and if development is required in the borough in FZ3, then it is steered to the most preferable areas of FZ3. As Mr Armitage agreed, when questioned, a site with a lower than 1 in 200 probability of tidal flooding because of defences would be FZ3 in Great Yarmouth, and FZ1 in King’s Lynn, despite being at the same probability of flooding. Mr Armitage confirmed, when questioned, that the only consistent basis of assessment across Norfolk is the EA Maps.
768. Examples of similar approaches being taken in other East Coast areas are provided by Mr Armitage in his rebuttal appendices – South Holland [C54/1, p11] and Hull City [C54/2, p27]. Again, the FZs are derived on an undefended basis, with further refinement within FZ3. Hull offers a good explanation of why such an approach is required at an individual borough area (“Due to 95% of Hull City Council’s area being located within Flood Zones 2 and 3 there is a need to further refine the risk associated with land within Flood Zone 3 so that the Sequential and Exception Tests can be applied here”). It makes entirely good sense that where the need identified, e.g. for new housing, lies within the area of a Council with a high risk of flooding, sites within that area are broken down into sub-zones on the basis of the level of defences. That rationale simply does not apply when seeking to undertake a sequential test across a larger area, where most is not at high risk of flooding i.e. Norfolk.
769. The SFRAs for the Norfolk Partnership and North Norfolk District take into account flood defences. However, the approach is not consistent. Firstly, in those areas defences are relied upon in some areas, with other areas mapped only by reference to the EA (i.e. undefended) maps. Secondly, the methodology by which defences are taken into account is not consistent with the King’s Lynn methodology. There is therefore a patchwork of SRFAs with varying approaches to the role defences play in arriving at the proper flood zone. As a result, reliance on the individual SFRAs to assess comparative flooding probability across the county will not arrive at a true comparison and so will not comply with the requirements or purpose of the NPPF.
770. This is not a technical or hypothetical distinction. It goes directly to the only driver of the sequential test – to steer new development to the locations with the lowest probability of flooding. The applicants attempt to avoid this issue by in effect saying that the site already is in a low risk flood area. This rests on Mr Armitage’s denial, when questioned, that a raised site remote from fluvial or tidal sources within undefended FZ1 is at a lower risk of flooding than a site which is defended.
771. The applicants suggest a degree of inconsistency in the borough due to potential future employment and mixed development being proposed through the Core Strategy and emerging allocations in areas which may also be in FZ3 in the climate change scenario. But this argument ignores that for the borough-wide need, as contained within the Borough Core Strategy, reliance on the SFRA is consistent.
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Lifetime of Development
772. The second construct raised by the applicants is to abridge the climate change assessment in the SFRA to 2090. Firstly, the KL SFRA itself assesses climate change to 2115 [CD/G50, para 5.22] using predicted sea level rises set out in PPS25 at that time. The SFRA protocol agreed between the BC and EA [CD/G53] advises that SFRA Climate Change maps should be used, that is to 2115. These maps show the Application Site to be within FZ3. The Protocol also directs attention to the Tidal River Hazard Maps [CD/E12] which also considers the climate change scenario in 2115, and supports the FZ3 classification.
773. The applicants seek to avoid this consequence by effectively re-drawing the maps to consider the position in 2090. They do not therefore disagree with the mapping itself or the modelling underpinning it but have taken the advice in the Protocol which states that: Should an applicant not agree with the mapping they will need to take their own modelling.
774. The protocol notes that the SFRA and the TRHM are the most up-to-date information and should be used in preference to the EA’s interactive maps. It goes on to consider specifically the Sequential Test: “Both sets of flood mapping (SFRA and Tidal River Hazard Mapping) should be checked to get a thorough understanding of the flood risk to a site and, where applicable, both the SFRA mapping and the TRHM should be used to inform the application of the sequential test. Advice on defining the geographical area when looking for reasonably available sites at a lower flood risk is provided within the still extant PPS25 – Practice Guide. This may be as simple as the village where the development is proposed. If the development is close to the local authority boundary we would not expect differing flood zones in a neighbouring district to be included in the assessment of alternative sites.”
775. As addressed in the policy section above the whole premise for this development is to address a county-wide need in reliance on the county MWCS. It is for this reason that it is agreed that the whole of Norfolk provides the scope for the sequential test.
776. Against that background the applicants’ position is wrong for the following reasons:
(a) The SFRA and the Protocol only applies in relation to sequential tests within a scope of the area of the borough or a sub-set of it; (b) If relying on the protocol and the SFRA there is no justification for tailoring it to a different time period than that assessed. To do so would introduce a further degree of inconsistency; (c) The protocol does not offer an alternative time scenario to a self-imposed lifetime of development; (d) The BC has been unable to find in the Framework or the Technical Guidance a justification for carrying out the sequential test, as opposed to a site specific flood-risk assessment, against a time conditioned life-time of development. This is also the case in PPS25 Practice Guide (at paras 3.90, 3.100 and 3.102, as relied on by Mr Armitage in evidence). This is a logical distinction. A site specific assessment has an objective rooted in keeping people and plant safe. The sequential test is rooted in the establishment of the principle of development with ongoing sustainability consequences. In this context, as John Hollister explained, once development is permitted and carried out it is in effect
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permanent infrastructure. Thereafter, buildings and plant may be refurbished and rebuilt, and in each case the existing development on the site will be relevant. It is in this way that a time-limiting condition is indeed a construct. It is not consistent with steering development to land with the lowest probability of flooding. As Mr Hollister explained, in reality the engineering and construction processes involved, together with the establishment of the principle of the development, are no less permanent than any other comparable permanent infrastructure development. The building may have a design life of less than 75 years, and it is indeed likely that the technology will be long obsolete and no doubt replaced. However, that does not mean that the application site itself should be considered at lower probability of flooding. (e) Finally, such an approach imports a spurious certainty to flood risk predictions in an area where it is more appropriate to take a precautionary approach [K22, para 3.1.16]. As a demonstration of this, Mr Armitage’s approach is to fix the period for assessment to 2090 by use of a condition. On such an approach, against a hard defence to 7.00m AOD [CD/PA11, App.9], modelled in accordance with the Technical Guide, the applicants predict that in 2090 the extreme tidal level would be 6.961m AOD – a margin of error of 39mm. Mr Robinson’s view is that the modelling did not allow for any freeboard. This should be considered against predicted sea level rises in 2090 of 15mm a year. So, if either the predictions are marginally optimistic, or the lifetime of the development in the event is extended by only 3 years, then the site would have been wrongly assessed as FZ1.
Future Maintenance of Defences
777. As referred to above, it is inherent in the applicants’ approach to FZ that the standard of protection of the relevant defences will remain the same over time as climate change is considered. Mr Robinson firstly considers that this cannot be assumed in any event for the purposes of considering on-site safety. Defences do fail, and the consequences are potentially very serious. This is addressed below. Secondly, such an assumption is not safe for the purposes of arriving at the correct Flood Zone in climate change scenarios, because such an assumption would equate to a guarantee that such a standard of protection would be maintained. It is obvious that no such guarantee can be given by the EA, which relies on the expenditure of public money to maintain defences, and where decisions are necessarily based on cost-benefit analysis in the future. This underlines why the sequential test should distinguish between sites reliant on such defences and those which are not.
778. The East of the Ouse, Polver and Nar Internal Drainage Board has objected to the development, noting that the applicants’ approach assumes the perfect maintenance of the defences [S2, as summarised by Mr Robinson, ibid 3.2.11].
779. The Application Site does not lie within the same flood cell as the main residential and urban areas of King’s Lynn, which will be relevant to future cost-benefit analysis. The question of future maintenance is considered by Mr Robinson [K23, para 2.7.2]. The applicants and NCC have not provided any evidence to support an assertion that the 1:200 standard will continue to 2090 or beyond. The EA’s position [N13, App3] is explicitly that any maintenance of flood defences through capital works will be dependent on the availability of funding, and in addition this may require sourcing funding from external (i.e. non-government) sources. This is also consistent with the policy statement in the EA’s Great Ouse Catchment Flood www.planningportal.gov.uk/planninginspectorate Page 162 Report APP/X2600/V/12/2183389
Management Plan [C5, p13 as set out in K23, p7], and the Great Ouse Tidal River Strategy [CD/E11, p9] which identifies that the preferred strategy is to raise the defences (i.e. capital works) when the standard falls to 1 in 75 years in around 2100. This is therefore express recognition that the EA’s preferred strategy contemplates allowing the standard to fall well below the 1:200 year threshold equivalent to FZ3.
780. Mr Armitage’s original reliance on the Wash Shoreline Management Plan is of no assistance, as it does not cover this location at all.
Conclusion on Flood Zone
781. In summary the Application Site should be assessed as FZ3 for the purposes of the sequential test for the following reasons: (i) That is the clear position of the EA, NCC, and BC. Any suggestion that the BC or EA in reaching this conclusion was unaware of the KL SFRA or the Protocol would plainly be ridiculous; (ii) The only consistent basis to assess county-wide probability of flooding is the EA maps which show the site in FZ3; (iii) If taking the SFRA as a starting point, it too shows, in accordance with the protocol, the site in 2115 is in FZ3; (iv) It is not appropriate to manipulate the SFRA to a shorter time period when the objective of the application is to establish the principle of development. The planning condition to limit the development to 2090 avoids the true flood consequences by assuming a certainty that is misplaced. It would subvert the purpose of the sequential test if developers can manipulate the flood zone by use of conditions. For example, if the present defences were forecast to overtop in 2089 rather than 2093, then it would be open to the applicants to impose a 73 year condition. This misses the point which is to steer development to land with the lowest probability of flooding – not to direct it to land with higher probability of flooding and then time limit the development.
Sequential Test Compliance
782. If the SoS agrees with the EA, NCC and the BC that the site is in FZ3 then it is necessary for him to satisfy himself that there are no reasonably available alternative sites appropriate for the proposed development. If he cannot, then applying the Framework, this development “should not be permitted”. The burden therefore lies, given the requirement to steer development to areas with the lowest probability of flooding and the site’s classification on FZ3, on NCC to show why the sequential test is met.
783. NCC has produced two assessments of relevance to this exercise. The first is the Sequential Test prepared for the WSSA [CD/G39]. The WSSA ST is relevant for two reasons. It is another piece of evidence showing that the proposal is appropriately considered to be in FZ3 and it shows the paucity of sites which NCC has promoted for thermal treatment. This is a strong indicator that if NCC had undertaken a more robust site search, as they should have done, then other sites in lower flood zones (such as Costessey) could and should have been found. The second document relied upon by NCC is the site specific sequential test. This identifies the site as FZ3.
784. The draft WSSA proposes three sites for recovery including thermal treatment (EfW) – WAS05, WAS65, and WAS 19 (Snetterton). The WSSA sequential www.planningportal.gov.uk/planninginspectorate Page 163 Report APP/X2600/V/12/2183389
assessment shows that Snetterton by any measure is in FZ1, is considered suitable and available for EfW recovery treatment on a site of at least 2.6 ha and is at a lower probability of flooding than the Application Site. Mrs Jeffery was therefore quick to accept that the WSSA process confirmed that there was a reasonably available site in Norfolk appropriate for large-scale EfW recovery use with a lower probability of flooding.
785. This is confirmed in the WSSA itself [CD/G26, para 6.19.4] where Snetterton is identified as having a site area of 3.5 ha, with 2.6 ha assessed as likely to be developed for a large scale treatment operation, and confirms that the site is in FZ1 and suitable and deliverable for, inter alia, EfW (Policy WAS18).
786. It is hard to see how the applicants and NCC can hope to convince the SoS on a section 77 application that the sequential test is met when at the same time the WSSA Inspector has before him clear statements from NCC that there is a site suitable for large-scale EfW in the geographical search area but in FZ1.
787. The ST for the application again correctly identifies the site as being within FZ3. Mr Palmer and NCC try to overcome the problem of Snetterton undoubtedly being in a lower flood zone, by relying on the words “the development proposed”, and thus arguing that even though Snetterton can deliver a 275,000 tpa EfW plant it is not sequentially preferable because it cannot provide ancillary development in the IBA facility. This plainly offends the purpose of the policy which is to consider alternatives for the essentials of the development, in order to test whether the development can be located in an area with a lower risk of flooding. A developer cannot avoid the effect of the Sequential Test by linking two applications in one, or making their application site unnecessarily large in order to avoid the effect of the ST. There is a direct analogy, in terms of the purpose of the policy, with large retail applications, where the decision maker will consider the essential elements of the development, rather than simply what the developer puts in his application; or with the approach to “salami slicing” development to avoid the effect of the EIA requirements.
788. For example, a supermarket developer could not attach a warehouse to their store application and then say the ST required a site much larger than for the store itself. The same would be true if development in the higher flood zone proposed a balancing pond as part of its application which was not necessary on the higher land in FZ1. In this case, it could not be argued that the sequential test was passed because the unnecessary balancing pond could not be provided. It would open up the critical issue of flood risk to manipulation based upon the precise form of development proposed, rather than its essence and the function the development performs. What the policy prevents is an LPA seeking to change the fundamental nature of the development, for example by saying a 200 dwelling residential scheme could be placed on two sequentially preferable 100 dwelling sites.
789. The reality of what is happening with this proposal, is that there are two essentially separate applications, for the EfW and the IBA, which have been linked into one application for the purposes of expediency. The applicants concede this, as it must given the experience around the country of EfWs generally not being co-located with IBAs, that there is no operational need for the two facilities to be close to each other.
790. However, the site specific sequential assessment seeks to dismiss Snetterton on the grounds that it cannot accommodate the IBA. Mr Palmer’s view in the ST that www.planningportal.gov.uk/planninginspectorate Page 164 Report APP/X2600/V/12/2183389
Snetterton is too small is particularly surprising given that the NCC ST is entirely based on the applicants’ ASA and Sequential Test Statement (STS), as Mr Palmer accepted. Both the ASA and STS are clear that the minimum site size criteria was 2.4ha, and that sites larger than that were not dismissed. The ASA states that the IBA was not an essential part of the development. The applicants’ STS, which itself relies on the ASA does not suggest any different approach. The sequential test suggests [N12, App1] that the test was applied taking into account the argument that the site was one of a number of sites required to serve the county. However, Mr Palmer clarified this, (and comments to similar effect in his proof, at para 12.7) by recognising that any such argument related to the WSSA only and was irrelevant to the sequential test for the call-in inquiry.
791. The only issue for the SoS is whether there is one or more reasonably available sites appropriate for the proposed development in a lower flood zone. Subject to the IBA point, it is clear that the ST cannot be met because there is at least one such site, at Snetterton.
792. The BC has made very clear to the WSSA Inspector and to this inquiry that it considers the methodology of the sequential test by NCC to be inadequate, starting from the initial pool of sites considered. In the WSSA the approach to site identification and selection has been passive, i.e. wholly reliant on owners and agents promoting sites, as opposed to the good practice suggested in PPS10 of taking a pro-active approach to the identification of sites. This depends then both on the owners’ knowledge of the process, but also their view, rather than the LPA’s view, on whether a site is appropriate for an EfW. The failure of a landowner to promote their site may indicate a lack of enthusiasm for an EfW, but it may just as much indicate that the landowner simply did not consider the possibility. Given the WDA’s well known enthusiasm for the application site for a number of years, it is hardly surprising that other landowners have not taken the trouble to promote their sites for the same use. A proactive approach would identify sites where the owner would be open to the allocation once made aware of the site’s potential and enhanced value.
793. In the site specific ST, NCC has simply relied on the information provided by the applicants in the ASA and STS, which identified a larger number of potential sites than the WSSA, but which was also based on a passive exercise with no engagement with local authorities or landowners.
794. Notwithstanding these criticisms, even on that flawed methodology, the sequential test is plainly failed.
795. The BC has through Dr Campbell carried out a revised sequential test. It has not been able to go beyond the applicants’ long list, for simple reasons of time and expense. However, even through this work Dr Campbell has uncovered unwarranted assumptions in dismissing sites, with the effect that there are three sequentially preferable sites that are reasonably available and appropriate for the proposed development.
Snetterton
Suitability
796. The site is allocated in the submission draft WSSA. No specific objections to the allocation have been put before this inquiry. It is considered suitable by NCC and www.planningportal.gov.uk/planninginspectorate Page 165 Report APP/X2600/V/12/2183389
the applicants [C83, para 2.3.40] for an EfW facility subject to the question of capacity.
Availability
797. Neither NCC as waste planning authority nor the applicants have questioned the availability of the Snetterton site. Its availability was of course considered as part of the WSSA and the consultation exercises that formed part of it.
798. Towards the end of the inquiry a letter appeared from Norse Commercial Services calling into question the deliverability of energy recovery on the site. Norse Commercial Services is a wholly owned subsidiary of Norfolk County Council and that the letter was written immediately after the BC’s presentation of evidence which demonstrated that the Willows failed the sequential test simply on the basis of Snetterton alone. Following Mrs Jeffery’s letter seeking clarification and pointing out that the draft WSSA allocated the site for that specific purpose, and following consultation with Norse’s predecessor companies (Norfolk County Services and NEWS), Norse reversed its position and apparently now seeks to have the site allocated for the same allocations (which includes EfW [N47, para 3], although there is ambiguity as to incineration, and any basis for why it may not be appropriate in the view of Norse Commercial Services). The appearance of Norse gives the impression from the timing that this was an attempt by a subsidiary of NCC to seek to influence the proper workings of the sequential test in order to favour the NCC (as WDA) backed planning application for the proposal an no other explanation has been given.
799. The BC has responded in clear terms to the points raised in the Norse letters and is critical of Norse’s conduct. The SoS is referred to the BC’s rebuttal of 1 May 2013 [K46].
Capacity
800. It speaks volumes that the issue relating to Snetterton comes down to the detailed question of capacity. This is because the site is in the draft WSSA allocated on 2.6 ha of operational land for EfW. Therefore it is self-evidently suitable for an EfW of the same capacity as the proposal. The EfW itself sits on 2.6ha of operational land also allocated in the draft WSSA. The only ostensible difference is that the Willows is in FZ3, and Snetterton FZ1.
801. The argument of the applicants and NCC is further undermined because the capacity estimations in the WSSA are very rough and ready, and Ms Jeffrey freely accepted were only indicative. For this reason, prior to the planning application, WAS65 (the application site) had an estimated capacity in the Preferred Option WSSA of 150,000 tpa. The Snetterton allocation would undoubtedly also go up if an application were made showing a higher capacity achievable on the site.
802. For illustrative purposes Dr Campbell has shown how the Willows facility could be accommodated on the Snetterton site. Even without going into detailed and expert design the K35 illustrations show that 275,000 tpa is readily achievable. It is submitted that none of the comments raised against Dr Campbell’s illustrations have any substance at all, as Dr Campbell’s rebuttal note shows [K37].
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Costessey
Availability
803. Land West of William Frost Way is vacant land. Two issues appear to be raised on availability. First of all, Mr. Miles referred to the restrictive covenant, but accepted, when questioned, that actually that would not prevent development for an EfW. If the adjoining owner did try to rely on it then there is a clear process starting with negotiating and ending with the Lands Tribunal for lifting such a covenant. The application site also had a restrictive covenant, but that in practice was no barrier to availability.
804. Secondly, it is said the landowner did not promote the site, but for the reasons set out above no assumption can be drawn that the site is not available. What is clear is that neither NCC nor the applicants can produce any direct evidence from those interests in the land that if allocated this site would not come forward for such development.
Suitability
805. In terms of land use the Costessey site is plainly suitable. It is in an area of waste and aggregates uses and the adjoining uses are no barrier to development for an EfW. The issue of the impact on the SAC can be shown, on even a very superficial analysis, to actually be no barrier to development. This is explained in detail in the note of Dr James Riley [K16]. In essence (1) the EA did not object on grounds of aerial deposition on the River Tud; (2) Natural England did not object, which they would have done if there was a concern about the impact of an EfW on the SAC; (3) the HRA undertaken by NCC lacked any reasonable level of scrutiny of the issue; (4) Dr Riley’s Note shows that there is no reason to believe that there would be any unacceptable impact on the SAC. Even on the evidence available at this stage there is good reason to conclude that an adverse effect would not occur, and that there is no real justification for ruling out incineration at the site [ibid, para 8]. Neither NCC nor the applicants have sought to challenge the substance of Dr Riley’s views, despite each calling expert ecological evidence.
806. It is rather surprising that NCC (as WPA) dismissed the site quite so easily, and in reliance on such an obviously superficial analysis in the HRA, given the low number of sites which are suitable for thermal treatment in the draft WSSA.
Broadlands Business Park
Availability
807. The site forms part of a broader area which is the subject of an outline planning application for mixed use development, which includes B2 use. Dr Campbell understands the site to be being marketed, and Mr Miles has produced a marketing brochure [C84, App 3]. We return to suitability below, but the marketing has not led to a lease or sale of the land, which therefore remains available for development in the hands of an owner plainly promoting it for development, including B2.
808. The owner of BBP has given no view of whether he would consider a proposal for an EfW on the site. There is no evidence of a B2 user being forthcoming, so the site would appear to be available. www.planningportal.gov.uk/planninginspectorate Page 167 Report APP/X2600/V/12/2183389
Appropriateness/suitability
809. Mr Palmer stated in evidence that he understands that the application remains favourably received by the planning authority and an outline planning permission may be issued in a few months’ time. This suggests that certainly general industrial development is appropriate on the plot identified by Dr Campbell. Government guidance and MWCS Policy CS6 makes clear that B2 sites are considered appropriate for residual waste treatment facilities including EfWs.
810. The limitations apparently suggested by the applicants and NCC relate to the proximity of residential development and whether or not an EfW would be acceptable in landscape terms.
811. Dr Campbell has carefully considered these issues, and conducted a number of visits to the site. He also has considerable experience in considering the likely effects of EfW proposals. His response is as follows: a) Even allowing an exclusion zone of 250m from the residential areas there remains a large area of the site available and appropriate for development. The proximity of residential development is therefore not an issue to prevent the land being appropriate; b) The landscaping argument derives from a specific height restriction on a planning application where the restriction was in effect volunteered by the applicant. An EfW would undoubtedly be of a different form and considerably higher, but as is clear from the Veolia permission in Leeds, such a development offers the opportunity for innovative and high quality design. There is nothing specific about the landscape on this business park on the outskirts of Norwich that would be a real constraint on the delivery of well-designed EfW facility. Given the topography and the large buildings at the front of the site, it is obviously possible to design a building with minimal or no impact on the Broads National Park. Similarly in relation to the existing and proposed residential areas near the site, it is apparent that EfWs have been designed in equally, if not more, sensitive locations such as Battlefield in Shrewsbury or Veolia Leeds (proximity to residential) that have been judged to be wholly acceptable.
812. In considering these issues it is important to bear in mind that there are very strong reasons for the applicants and NCC to down play these sites and raise hurdles to their consideration. In terms of Snetterton it has been found to be suitable and available, and in terms of the other two sites they have not been formally appraised through the WSSA process.
Prematurity
813. Extant Government Policy on prematurity is set out in The Planning System – General Principles. This guidance must now be seen in the context of the Framework and its emphasis on the plan-led approach (NPPF paragraph 17(1)). Paragraph 17 of the General Principles states that a prematurity refusal may be justified where: “a proposed development is so substantial…that granting permission could prejudice the DPD by pre-determining decisions about the scale, location, or phasing of new development which are being addressed in the DPD”.
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814. There can be no real debate about whether this development is substantial enough to give rise to a prematurity argument. The waste arising figures have been addressed above.
815. The appellants’ and NCC’s arguments therefore focus on the role of the WSSA. The BC points out at the outset that it has raised objections and presented evidence at the WSSA Examination in Public which raise a number of matters relating to the number of sites proposed to be allocated, the spatial distributions of sites to be allocated, the approach in the WSSA to the securing of capacity in light of the indicative capacity figures in the WSSA, the approach in the WSSA to allocating sites for a range of potential waste treatment technologies including for composting/recycling and how this relates to the capacity figures in the Waste Core Strategy.
816. By reference to the issues referred to in paragraph 17 therefore:
(a) Scale: the WSSA seeks to allocate sites to meet the WCS policy of a maximum of 703,000 tpa of recovery capacity by 2020. It does so by reference to indicative capacity on each site proposed to be allocated. The BC has sought to have the Application Site omitted, and/or the WSSA found unsound. As part of this objection the BC has noted the capacity of the Application Site is fixed by reference to the planning application (rather than an indicative proposal for greater or lesser capacity). On the other hand, indicative capacities at other sites, for example, Snetterton are rough and ready under-estimates. The point is that the WSSA does not try to predict accurately capacity estimates, and the illustrations show that the indicative estimates are very approximate indeed. Therefore, it is not accepted that all of the allocated sites are indeed required. Further, because the WSSA allocations are not specified as being for thermal treatment only or even for recovery only, the WSSA Inspector must necessarily consider questions of scale and capacity in relation to each site and take decisions both on the individual allocations and the overall strategy accordingly. If the section 77 application is allowed, however, these questions in relation to the Application Site, but also as to whether the development of the Application Site at this scale is consistent with the spatial strategy will have been pre- determined by permitting 275,000 tpa capacity – more than enough capacity to treat the entire residual MSW stream for the county as a whole; (b) Location: the BC considers it wholly unarguable that the determination of this planning application does not predetermine a decision as to location being taken through the WSSA. The WSSA has to determine the spatial distribution of the required new recovery capacity and, as part of that, decide whether to accept the principle of a thermal treatment facility at the Application Site. Any decision by the SoS in relation to the application in advance will predetermine that issue entirely. (c) Phasing: The WSSA does not contain a phasing limitation on the sites allocated. This is related to the BC’s objection on the basis of the sequential test for the WSSA [CD/G39], as the WSSA enables higher flood risk sites to come forward in advance of lower flood zone sites in a context where NCC is satisfied that each site is suitable for the proposed waste treatment use. To grant permission in the section 77 application would guarantee that result and predetermine that issue.
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817. The WSSA is at a very advanced stage. The Inspector is likely to have reported on the Submission WSSA prior to the Inspector’s report being finalized, and before the SoS takes his decision. The BC has taken a pragmatic view and suggested deferring any final decision until the WSSA report is available. Of course, it may be that the Inspector considers the WSSA to be unsound, or the inclusion of the Application Site (WAS65) not to be justified. In those circumstances a decision to grant planning permission would render pointless the Inspector’s examination of the WSSA in relation to (a) WAS65; (b) the delivery across Norfolk of an integrated waste network consistent with a spatial strategy; (c) the capacity considerations of alternative sites.
818. The argument is raised by applicants that the WSSA examination of WAS65 only took up half a day of hearing time and so presumably somehow should not be given much weight. However, the WSSA represents NCC’s delivery strategy for the entirety of its waste policies in a holistic way. The WSSA Inspector through consideration of the WSSA has a scope that this Inspector cannot have – of reviewing in context the county as a whole.
819. It is no answer to say that the three sites proposed to be allocated for EfW in the WSSA will be required. The BC’s case on the WSSA is that this is not the case, although the WSSA is unsound for not being specific as to uses. If the Norse Commercial Services letter is put to the WSSA Inspector it seems in any event that he is likely to suggest that NCC carry out a revised site search that the BC anticipates will find more suitable sites during a more robust site search exercise. In any event the WSSA Inspector found himself constrained by the need to address the 703,000t figure in the WCS, which does not apply to the current application [K49]. This matter affects the assessment of the need for the facility and flood risk.
On-site and Off-site Flood Risk
820. These issues are addressed in detail in the written evidence of Mr Robinson (in particular: K22 – paras 3.3.1 to 6.1.10; K23 – paras 2.9 to 2.11.4). These submissions do not repeat that detail, although it is commended to the SoS.
821. A number of matters of approach and policy may helpfully be drawn out: (a) The Technical Guidance [U2, para 9] requires the assessment and mitigation to demonstrate how the development remains safe throughout its lifetime taking climate change into account; (b) The EA raised an objection, given the level of flood risk at the site, to the original FRA as it used a breach flood level from a 2005 report relating to the PIC, and required a new FBA to be undertaken to address specific matters (including an evacuation plan for the planning authority to take into account in taking its decision) [K33, App1 and K22, para 3.3.5]; (c) There are questions over whether the EA had all the information it required for a thorough assessment of these matters, that in its original FRA it ignored the impact of climate change in its breach assessment. Based on that approach mitigation was planned to raise the FFL and critical infrastructure to 2.54m AOD. The purpose of this was to remove the buildings, workers and IBA storage levels outside the residual 1 in 200 year flood level – in other words to keep the buildings dry in the event of a breach in the 1 in 200 year event conditions (the design standard risk for use in determination of acceptability in relation to tidal sources)[ibid, para 3.1.4]. The EA confirmed that this assessment was
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inappropriate because it ignored climate change. When the new FRA was undertaken, the consequences for on-site flooding were significant. In the same conditions as properly modelled the site will be inundated with approximately 60- 70 cm of water[CD/PA10, para 9.2.25]. This includes throughout the turbine hall, roadways, and outside the bottom ash pit [ibid, Table 9.2, p191]. As a test of the substantial nature of this issue – if the appellants had remained consistent to its original mitigation strategy of keeping the main buildings dry in the design standard event, it would have to raise land levels to 3.24m. There is no evidence of any real consideration of this alternative form of development, which would have consequences for off-site impacts, as well as other impacts. The unavoidable inference is that having planned its mitigation on a flawed basis not reflecting climate change, the applicants have decided to stick with that strategy notwithstanding that rather than the premises remaining dry; in those circumstances the site will be inundated to 70cm depth. However, as Mr Robinson points out [K22, para 5.1.10] such a depth will create a flood hazard classification (as defined by the EA/Defra guidance) of up to ‘danger for all’ locally. This is the highest hazard classification and means danger even for the emergency services who may not be able to enter such areas to perform their duties. In addition to the total inundation depth Mr Robinson’s concerns include the speed of the onset and the velocity of any inundated water. The FBA itself acknowledges that in the post-development scenario large parts of the site will constitute the highest two hazard categories – Significant, and Extreme (which means “Danger for all – including the emergency services”[CD/PA11, App. 9, Table 4.2 on p9-9, and “Predicted Flood Hazard” Figure in Appendix B]. Mr Armitage’s suggested on-site comparison between the pre- and post- development scenario is of course meaningless because pre-development the building will be neither there nor occupied; (d) In relation to off-site safety, again, Mr Robinson has considered this in detail in his evidence. Mr Armitage’s response is inadequate, relying as it does, on a simple spot the difference assessment of flood hazard maps before and after the development [C53, para. 2.5.2], an apparent assumption that cumulative impacts did not require any assessment [ibid, para 2.5.3], and a subsequent high level view that such impacts would be negligible. As Mr Robinson explained, comparison within such broad risk categories and depths as set out by the applicants falls well short of what is required to understand the impact on an off-site, potentially sensitive, receptor from a given depth and velocity of water. As an example, the flood hazard maps show high hazard levels across Poplar Avenue which provides access to Palm Paper and the PIC. This may have consequences for the use of these accesses by individuals and the emergency services. The PIC is itself a highly vulnerable receptor [K22, para 4.1.5], and yet the impact of the development including land-raising across the site in the order of 1m [ibid, para 4.1.13] has not been assessed. Such information was within the scope of the EA request for the further flood breach assessment and has not been provided. (e) The applicants appear to misunderstand the consequence of an EfW facility being a “less vulnerable” development within Table 2 of the Technical Guidance to the Framework. This does not mean that the FRA does not have to demonstrate the safety of the development – as confirmed by the EA objection requiring the FRA to address these matters. (f) In relation to the Evacuation Plan it is surprising that at this stage of the inquiry, despite accepting the need for a condition requiring an Evacuation Plan, that such a plan has not been provided. The difficulties posed by the absence of www.planningportal.gov.uk/planninginspectorate Page 171 Report APP/X2600/V/12/2183389
a plan are explained in Mr Robinson’s proof of evidence and orally. It is not adequate to rely on a warning system, which will not address the problems caused by unexpected flood defence failure causing high hazard levels for those on and off site, including access and egress to the site, Palm Paper and the PIC. Mr Robinson disagrees strongly with the assertion [CD/PA11, App.9, para 9.2.32] that the “timing of any breach in the flood defences is readily predictable”. Such a breach is not predictable – it may occur entirely without warning. In addition, adequate mitigation may require changes to the design. The EA objection letter made clear that the EA do not comment on the adequacy of flood emergency response and evacuation proposals as they do not carry out these roles during a flood. This is therefore a matter for the planning authority alone – and yet the applicant has not provided the SoS with the ability to consider this. NCC has not explained why it has not considered emergency planning at this stage.
Section 38(6) 2004 Act and planning balance
822. NCC’s laid a heavy emphasis on the development plan, the weight to be given to it, and the role of the development plan in determining issues of strategy.
823. The BC submits that insofar as the MWCS contains strategic policy: (1) That policy in MWCS Policy CS5 when objectively interpreted in context is breached by this application; (2) The MWCS does not allow assessment against the waste hierarchy for which there is no specific policy; (3) Locational decisions (at the individual site level) to meet the need in WCS Policy CS4 were intended to be addressed through the WSSA; (4) That need (a) is now overstated and (b) is not being addressed through the WSSA due to improper approaches to the sequential test, capacity and proximity.
824. Therefore, the proposals are in breach of the central policy in the MWCS and this weighs heavily against them.
825. The BC has focused its case on its objections to the scheme. Obviously, the SoS will have to balance other factors in the decision-making process, including benefits asserted by the applicants, and objections raised by other parties than the BC.
826. Mr Hollister acknowledges the planning balance, and recognises, fairly, that there will be benefits of the scheme. Mr Hollister explores this balance in a proportionate way. Of great importance to this balance in this case is the relative positions of the parties. It is not the BC’s contention that EfW is unnecessary or inherently contrary to the waste hierarchy. The BC recognises that many of the benefits put forward by the applicants derive general support from policy, and there may be need for EfW specific capacity in Norfolk. Yet these favourable considerations must be weighed against the specific nature of the objections raised by the BC. General support for provision in Norfolk does not justify such a misplaced approach to proximity, hierarchy, and flood risk as would have to be taken to justify granting planning permission in this case. The majority of the benefits claimed by the applicants would equally apply to a proportionate network of sites properly identified through the WSSA and do little to justify the site specific harm caused. Nor does the BC accept the strong-arm arguments of the applicants relating to the implications of refusal. In fact, as the proposal has been delayed what has been recognised is that www.planningportal.gov.uk/planninginspectorate Page 172 Report APP/X2600/V/12/2183389
the original justification for the scheme has fallen away as waste arising predictions tumble. The real implication may be, rightly, that the proposal is dropped by the applicants as a very sub-optimal solution for Norfolk’s waste and more appropriate solutions would then come forward.
827. There are two “other material considerations” which the applicants and NCC ask the SoS to take into account in support of the development on which the BC now comments specifically – financial considerations and the CHP benefits of the proposal.
Financial Repercussions
828. It is necessary to analyse what is said to be lost. The basis for this claimed benefit appears to be another unattributed note from the NCC as WDA [C81, App11, p12] which asserts that the cost will be £8m per year (assuming electricity income is at guaranteed levels). The vast majority of this is what the WDA calls a “Government grant” - £6.7m per year. The remaining £1.3m is not explained. All we are told that it is based on “existing arrangements”. It is not known what assumptions are made as to residual MSW arisings or disposal costs or alternatives to landfill (including Material Works).
829. In the absence of such explanation that second element of the cost of delay must be given no weight. It has not been supported by an appearance at the inquiry by the WDA but only by notes, which are not open to any proper scrutiny.
830. The bulk of the saving is the PFI Credit of some £68m. As Liz Truss MP remarked – this is not free money. It simply represents the re-allocation of public funds from central government to one tier of local government. It cannot be right that the “benefit” to local government can be taken into account, but the loss to central government cannot. It was doubtless intended by DEFRA at the time of the grant to represent value for money. However, given the shift in the waste predictions, such value for money must now be very seriously in doubt. If the overall effect of the project is that NCC ends up paying over the odds for waste treatment, because it has to pay, for a service it will not receive, then the public purse loses through this scheme not gains. This overall impact on the public purse doubtless is the reason that DEFRA withdrew credits from three other EfW schemes just before the inquiry started. Whether it would have wished to do the same for this facility is not known, but it could not do so simply because of the particular terms of the contract.
831. In any event such financial benefits are not a land use consequence. Now that the planning application is being determined by the SoS it is submitted no weight should be given to the re-allocation of central funds which are neutral overall to the public purse. The benefits that should weigh are any genuine benefits, including in policy terms, that flow from the grant of planning permission. Section 70 of the 1990 Act as amended is not intended to skew the planning balance to take into account under section 38(6) redistribution of public money from central to local government as a material planning consideration.
832. In this regard it should be noted that the factors to which the Belvedere Inspector attributed weight, and followed in the Cornwall decision, was significant cost to the public purse, and the uncertainty that a refusal would cause [CD/A6, para 2109/2110]. In this case there is no evidence of the former, and the latter would be a short-term matter brought about by the actions of NCC both as WDA in
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making a bad deal, and WPA in pursuing the WSSA so slowly. As the uncertainty clears it will focus on a better solution for the county.
Combined heat and power
833. It is quite apparent from the history of NCC and the applicants’ involvement with the site that the expectation of a CHP link with Palm Paper, was the critical element in the site selection throughout. NCC’s original choice of the site and then purchase was based upon Mott MacDonald’s report. In this document the provision of CHP to Palm Paper was the single factor which led to the choice of the site.
834. Equally, for the applicants it was the key benefit of this site. This was clear both from the applicants’ ASA but also Mr. Boldon’s evidence.
835. However, that central feature leading to the choice of the site has effectively fallen away. The position now is that although it is not impossible that Palm Paper will take steam from the facility it seems to be highly improbable they will do so.
836. Palm Paper are in the process of promoting through the Planning Act 2008 processes a CCGT power station from which they can meet their own power and steam needs. Every indication points to this being Palm Paper’s chosen way forward, rather than taking CHP from the faciility:
1) Palm Paper has made clear its desire to be self-sufficient in its power needs; 2) The CCGT can meet all its electricity and steam needs, whereas the proposal can only meet a proportion of Palm Paper’s requirements for steam [K37] (between 50 and 65% at best) and only a minority of the mill’s requirements for electricity (20%) . Therefore using the proposal would leave Palm dependant on external sources of electricity and gas in any event; 3) Palm Paper’s three mills in Germany use their own dedicated CHP plants for the supply of electricity and steam, the two most recent of which are CCGT power stations, so it is a technological solution which Palm Paper is fully conversant with, as set out in Dr Campbell’s evidence; 4) Dr Palm has indicated strongly that the CCGT is Palm Paper’s chosen way forward, and is therefore in effect the chosen option.
837. Mr Boldon’s only answer to the fact that Palm Paper are pursuing the CCGT through the IPC process is to imply that this a complex negotiating position, by which they are playing “hard to get” with the applicants in order to drive down the price. Given Palm Paper’s public commitment to the CCGT, and the time and money they have spent in commencing the IPC process, this suggestion seems somewhat far- fetched.
838. If Palm Paper is discounted as a likely recipient of CHP, then it can be seen that there is no other likely CHP linkage, and the site is no better and possibly worse than Dr Campbell’s other sites.
839. It is entirely accepted that EfW developers do not have to have contracts in place at this stage in order to show CHP potential. But one has to look at the locations and progress of other developments to see whether there is any realistic likelihood of CHP forthcoming. In reality CHP seems to emerge where there is an industrial, commercial or appropriate agricultural user in close proximity (e.g. Avonmouth and Great Blakenham) or it is development in close proximity to public housing and the local authority develops a district heating scheme (e.g. Sheffield, or SELCHP in
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South London). The heat from the EfW is lost over quite short distances so the user has to be close by, and there are very considerable capital costs involved.
840. In reality, although one cannot say there is no prospect of a CHP user coming forward it seems to be highly unlikely. The NORA scheme has been brought forward with no CHP linkage, despite this being considered at an early stage. There is now no developer showing any interest in putting in such linkage.
841. The other developments referred to by the applicants, such as the EMP3 land, are a fair distance away and suggestions of CHP are wholly speculative. In this regard Mr Aumônier’s own evidence [C73, Table 1] indicates that, without Palm Paper, CHP potential at the Willows would be similar to that at the BC’s alternative site at Costessey and lower than at the BC’s alternative site at Broadland Business Park.
The Local Poll
842. The poll carried out by the BC shows the enormously strong local opposition to this development. The poll is a wholly legitimate expression of local opinion. CW have tried to downgrade the outcome by relying on the fact that there was no text set out in the document putting the positive arguments for the development. However, this was entirely a matter of choice for the applicants and NCC (WDA). The BC took every reasonable step to try to get the applicants to participate and provide their case, but the evidence indicates very clearly that their decision not to participate was a tactical one, precisely so that they could now argue that the poll should be given little weight.
843. In those circumstances, the BC set out the web-link to the NCC website which provided information on the proposals in NCC’s own words. What is remarkable is both the proportion against the incinerator of 92.68% of the valid vote, but that turnout was 61.33%. That means that 65,516 people took active steps to vote against the proposal. Voters would have taken the time to inform themselves to a reasonable degree about the issue upon which they are voting. The poll was properly carried out and properly administered. Certainly, the attendance and local interest at the inquiry and in the local press suggests that the same public feeling exists at this time in light of all the information now available. The poll must be seen by the SoS for what it was – a compelling and informed local statement by voters of the borough that they are vehemently opposed to the development proposals.
844. In any event, the very weight of opposition, and indeed the level of opposition in the applicants’ own poll, indicates very strongly that people were not voting against because of any misinformation, but because they felt that this was the wrong development at this location.
The Case for King’s Lynn Without Incineration (KLWIN)
The main points are:
845. KLWIN is a campaign group whose funds derive solely from fundraising activities and the support of the local, and wider communities, have had extremely limited resources in order to present their case. Therefore they have not covered all the areas of the inquiry. However, that does not mean that they accept the points on which they are silent, for example landscape and flooding, but only that, due to their limited resources, they have only concentrated on a few key areas.
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Carbon footprint
846. The evidence given by Mr Burton at the Inquiry drew partly upon the report entitled “Climate Change Impacts of the Willows Power & Recycling Centre and Competing Alternatives - Final Report to KLWIN” prepared by Dr Hogg and Ann Ballinger of Eunomia Research and Consulting Limited [CD/R1]. Mr Burton also considered the various planning policies and guidance in relation to the carbon footprint of the Willows incinerator and their relevance to whether the facility should be granted planning permission. This information is contained in section 5 of Mr Burton’s main proof of evidence [W-000 and W-050].
848. He provided extensive carbon footprint analysis in his evidence to demonstrate that the Willows incinerator will not be a low carbon facility. His evidence also shows that it will increase emissions of GHG compared to both the current option of landfill, and other modelled alternatives. Mr Burton also explained that RPS’s own carbon footprint, in the scenario that follows government guidance on landfill methane, also shows the Willows incinerator increases GHG emissions. The technical information supplied is to demonstrate that the Willows incinerator will not comply with planning policy as it is not in fact low carbon and increases GHG emissions.
849. Mr Burton refers to the NPPF [CD/U1] which makes various references to the role of the planning system. For example: helping to facilitate a move to a “low carbon economy” [Ibid, para 7]; that it is a core planning principle that it supports “the transition to a low carbon future”[Ibid, para17]; and, that the Government is committed to a low carbon future [Ibid, para 18]. He also stated that the Willows incinerator will not help to secure a “radical” reduction in GHG, contrary to the NPPF [Ibid, para 93].
850. He also referred to the MWCS [CD/D1] and drew attention to how this also refers to the requirement of being low carbon, for example, at paragraph 5.13. Mr Burton submits that it is not possible for Norfolk to be a leader in reducing emissions from greenhouse gases, if this proposal is accepted. Mr Burton is supported in the view that planning policy has an important role to play in climate change in paragraph 19 of Mr Aumônier’s proof [C70] where he states that “the weight accorded to addressing climate change through planning could not be greater”.
851. Mr Burton also believes that the incinerator would be in conflict with policy in relation to renewable energy. Only the biogenic fraction of the waste that will be burnt would be considered to be renewable and deemed to be carbon neutral. However, the Willows will be burning a large amount of fossil fuel based material and this is not renewable or carbon neutral. It is therefore Mr Burton’s position that when taken as a whole the carbon intensity of the Willows will be 0.766kg, which would make it the most carbon intense source of electricity generation in years to come, in terms of renewable energy policy. Hypothetically, and recognising Mr Aumônier’s point that projecting waste composition far into the future requires assumptions of a “heroic” nature, it is entirely possible that the Willows incinerator could combust a diminishing proportion of waste of biogenic origin, reducing the fraction of energy generated which is deemed to be renewable, and undoubtedly increasing the argument of KLWIN that the facility is high carbon.
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852. Mr Burton highlighted that, merely having an element of renewable energy is not enough on its own, it must be considered in conjunction with whether it contributes to long term decarbonisation. To emphasise this he referred to paragraph 5.3.5 of his proof which quotes paragraph 1.9 of the UK Bioenergy Strategy [CD/U44] which states: “However it is essential that bioenergy which contributes to our short and medium term targets, such as the 2020 renewable energy targets, also puts the UK in a good place for longer term decarbonisation.” Mr Burton also referred to the UK Renewable Energy Roadmap 2011, the UK Annual Energy Statements and the White Paper ‘Planning Our Electric Future’ 2011 in his rebuttal proof [W-050] and DEFRA’s 2011 Waste Review [CD/U23], as further evidence of the government’s commitment to decarbonise and the role of the planning system in delivering this.
853. It is KLWIN’s view that significant weight must be given to the fact that the incinerator cannot be deemed low carbon and does not therefore comply with the policies that have been cited, including those cited by Mr Aumônier and Mr Miles.
854. There was also discussion at the inquiry as to the relevance of NPSs EN1 [CD/U3] and EN-3 [CD/U4]. This is also an area that Mr Burton considered. It is part of KLWIN’s case that that documents do not apply as the Willows is considerably below the 50MW threshold for the designation of an NSIP. KLWIN accept that EN-1 and EN-3 state that the NPSs are likely to be a material consideration in applications that fall under the Town and Country Planning Act 1990 (as amended), but note that they continue to state that “whether, and to what extent, this NPS is a material consideration will be judged on a case by case basis” [para 1.2.1, CD/U3 and para 1.2.3, CD/U4]. It is KLWIN’s view that neither EN-1 nor EN-3 should be a material consideration in this planning application given that the Willows is considerably below the 50MW threshold and the contribution that the Willows will make to the 2020 renewable energy target of a mere 0.04% cannot be said in any normal use of the word to be “significant”.
855. If, however, the Secretary of State were to deem EN-1 or EN-3 to be applicable to this case, then it is Mr Burton’s opinion [para 82, W-050] that this only assists in further demonstrating that the Willows is in conflict with the NPS, as the Willows incinerator is not low carbon, and in fact is more carbon intense than a gas-fired power station, it makes a negligible contribution to energy security and is in conflict with carbon reduction objectives. Whilst it would burn some biomass, taking its carbon intensity as a whole, it should be viewed as a high carbon facility, rather than a renewable energy power station. It was advanced by the applicants, during questioning, that latest government guidance published by DEFRA in February of this year [CD/U32] refers to energy from waste as low carbon, which would include the Willows. However, there are various types of energy from waste technologies, and each plant should be considered on its own merits, and that whilst it does not exclude the Willows incinerator, neither does the document say that it is low carbon.
856. Mr Burton was questioned on table 3.1 of the document “Meeting the Energy Challenge – Energy White Paper” [CD/U37], which lists those technologies that are examples of low carbon distributed technologies, including energy from waste. However, Mr Burton’s view is that energy from waste is not always low carbon and, since this is a generic term that encompasses various types of technology, and that www.planningportal.gov.uk/planninginspectorate Page 177 Report APP/X2600/V/12/2183389
obtaining the energy using a mass burn incineration technology, in this case shows that the Willows is not low carbon. Mr Burton’s proof [W-000], which refers in turn to, para 209 of DEFRA’s 2011 Waste Review [CD/U23] which states “it is important to consider the relative net carbon impact of these processes, and this will depend on the composition of the feedstocks, and technologies used”. As such, whilst there may be government guidance that refers to energy from waste as low carbon, this guidance should be afforded either little or no weight as the guidance is generic in nature, and looking to the actual application at hand, and the evidence provided by Mr Burton then it cannot be said to be low carbon. In fact the UK Bioenergy Strategy [CD/U44], also referred to in his proof at para 5.5.3, states that “Bioenergy is not automatically low carbon, renewable or sustainable”.
857. Mr Burton recognises the dual role of the facility, as set out in guidance, but this cannot be compared simply to ordinary electricity benefits. KLWIN remain of the view that, despite some biomass is being burnt, the facility cannot be considered to be low carbon, as supported in their technical evidence. Although the applicants recognise that the facility would not be an NSIP, they suggested that it would support the need for a diversified mix of generation technologies is required, and that the Government is not setting absolutes, but rather is looking at energy that is distributable and dispatchable, whether from large or small facilities. It is Mr Burton’s position, that the contribution that the Willows incinerator would make is so very small, negligible even, that the energy it generates is not really an advantage.
858. Mr Burton was also questioned on paragraph 1 of PPS 10 [CD/U3] on the need to grant planning permission now as part of a step-change and on the general message of urgency for these type of projects. However, Mr Burton’s view was that each application needs to be judged on its own merits and only allowed in the right circumstances. In this case, for this facility, it is not the most appropriate course of action to take. Dr Hogg was also questioned regarding this matter and made the point, orally and in rebuttal evidence, that the arguments provided by Mr Miles in respect of the economic consequences of delay could not have much weight, since, amongst other things, there were based on hearsay. In addition, KLWIN point out once more that the Inquiry has not been provided with a full and un-redacted version of the contract between the applicants and NCC [CD/J1, redacted version], and as such, any submissions made based on this must be given no weight in accordance with the Rufford decision [CD/A18].
859. During questioning by NCC, it was put to Mr Burton that there is no need to show that an individual planning application secures radical reductions in GHG emissions. He rejected this, since the policies on decarbonisation must be relevant to this application. He was also questioned on the guidance in EN-1 [CD/U3, para 5.2.2] that there no need to assess the carbon budgets of an individual application. Whilst acknowledging the guidance, Mr Burton responded that the guidance is based on the premise that the facilities to which it applies are decarbonising, whereas this is not the case with the proposal, which reduces the weight that can be placed on such guidance, as it is not applicable to the facility.
860. In terms of CHP, it is KLWIN’s view that there is no prospect of the incinerator being able to export CHP, as set out in Mr Burton’s proof. Although the plant might be “CHP enabled”, very little weight should be placed on this as the likelihood of finding a user for the CHP is remote. www.planningportal.gov.uk/planninginspectorate Page 178 Report APP/X2600/V/12/2183389
861. NCC questioned the lifetime capture rate of landfill methane emissions put forward by Mr Burton, based on Dr Broomfield’s rebuttal [N32]. Mr Burton had referred to government guidance showing a lifetime capture rate of 75% and ERM also use this capture rate, but RPS used 50%. Dr Broomfield referred to additional data provided by Mr Burton in relation to Norfolk’s landfills during three years of their active filling phase. Whilst Dr Broomfield states that Mr Burton’s approach to calculating the landfill methane efficiency is “essentially sound”, he does state also that there is an error, an omission and two inappropriate assumptions, which were then put to Mr Burton in questions.
862. In relation to the alleged omission, Mr Burton advised the Inquiry that he was told by the EA that this information had been included, although he confirmed that it had not been independently verified. He accepted, for the purposes of questioning only, that this may have been an omission. In relation to assumption 2 [para 2.6, N32] Mr Burton accepted that this may not have been calculated correctly, and perhaps a figure of 20 should have been used. However, in terms of the calculation error and incorrect assumption 1, [as pointed out in paras 2.3 and 2.6, ibid] Mr Burton responded that the calculation error had little impact. In relation to assumption 1, relating to the proportion of methane in landfill gas, Mr Burton’s figure of 60% is contained within guidance, Dr Broomfield uses 44%, and he had taken a figure of 50%. Mr Burton reiterated that as there are uncertainties it is for this reason that he uses the figure given in government guidance, and in his evidence in chief he pointed out that this is also the figure used by Mr Aumônier. Furthermore, KLWIN submit that if Dr Broomfield’s figure of 44% was used, then the case made by KLWIN in respect of the incinerator performing worse than landfill would be strengthened.
863. The key point that Mr Burton stressed, is that Dr Broomfield’s own calculations are themselves consistent with a lifetime landfill methane capture rate of 75%, and therefore they do not undermine Mr Burton’s argument. Mr Burton explained this is because even the lower rate of methane capture that Dr Broomfield calculates, for the least efficient phase of methane capture, equates to a 75% capture rate over the lifetime of the landfill – a rate that supports Mr Burton’s evidence.
864. Mr Burton also made the following important points during his evidence. Firstly, email correspondence between Mr Tim Hill and the EA [W13] supports KLWIN’s approach to modelling the marginal carbon intensity of electricity production. The email showed that the WRATE carbon software tool’s default should not be used, justifying Eunomia’s approach in basing their calculations on the values set out in DECC guidance for the whole of the 25 year contract period. This approach was also supported by DECCs ‘valuation of energy use and greenhouse gas emissions’ guidance [W14], which also shows modelling of carbon footprints should incorporate the marginal carbon intensity for each year of operation. Eunomia’s approach is supported by government guidance and gives the Willows incinerator a larger carbon footprint. KLWIN submit that ERM used an approach which the evidence submitted proves is not justified, thus demonstrating that their lower carbon footprint is incorrect.
865. In summary, Mr Burton both in his evidence and in presenting that of Eunomia, has shown that the proposed incinerator would not be an appropriate use of land in planning terms. The proposal would not help to decarbonise our energy supply and www.planningportal.gov.uk/planninginspectorate Page 179 Report APP/X2600/V/12/2183389
the two carbon footprints produced by the applicants’ consultants, RPS and ERM, are wholly and substantially contradictory, do not follow government guidance and cannot therefore be taken to be correct. The likelihood of the incinerator ever exporting CHP is negligible and as such very little weight should be given to this, if any. As result, and by reference to the calculations that have been provided by Mr Burton, when the facility operates in electricity only mode, its carbon footprint exceeds that of all other modelled alternative waste management options, even that of landfill.
Waste Hierarchy
866. Dr Hogg’s written evidence [W-500] sets out matters in relation to the Waste Hierarchy and his view that the proposal would fail to comply with legislation [W- 503], the MWCS [W-502] and guidance [W-501] on this matter. This was based on the fact that at the time of writing the proof and giving evidence that the EP classified the proposal as a disposal facility. One of the matters of dispute between the applicants and KLWIN was the amount of MSW available in the future. It is Dr Hogg’s position that, as is shown by the evidence of the last 10 years [W-550], the amount of waste being collected by the Norfolk’s collection authorities is decreasing. This trend started before the recession. The applicants’ evidence indicates an upward trend in MSW arisings, according to the data for the 3rd quarter of 2012/2013. Although he had not seen this data, Dr Hogg’s view was that this might only be a temporary increase in MSW arisings due to an increase in the collection of C&I waste. In addition, his view was that there is no reason to link future growth to household numbers, given that historical data offered no support for this relationship. The information on these matters is therefore not transparent and little weight should be given to it. The contention that sufficient waste would be available to feed the incinerator, is based on the applicants’ projection of increasing waste, which is disputed both by KLWIN and also by the BC, who also made substantial submissions on this point. (Inspector’s’s Note: KLWIN’s view is that the draft waste Management Plan for England [U29] supports their evidence on the lack of need for the proposal. This is based on: the Government’s statement that there is no further need for investment in infrastructure to meet landfill diversion; increases in recycling in West Norfolk from 36% to 52% from April 2012 to June 2013 due to food waste collections in accordance with Government policy; potential contingency plans for NCC to send waste to Amsterdam; and, the lack of a robust analysis of data for the business case for the project, contrary to the new draft Updated National Waste Planning Policy [U8].)
867. Dr Hogg was also asked to consider the relevance of EN-1 and EN-3 and his view echoed that of Mr Burton. Dr Hogg endorsed the Government’s position that whether they should be a material consideration in planning applications should be judged on a case by case basis. Whilst he could not provide the applicants in questioning with a case where the NPSs were not held to be material he referred to his questioning of Mr Aumônier, and also referred to the evidence of Mr Burton, that the facility’s contribution to the renewable energy target would be so small that it is not worthy of being significant. He is therefore of the same opinion as Mr Burton that the NPSs should be given no weight in relation to the Willows incinerator.
868. Dr Hogg was also questioned on Mr Boldon’s evidence, which stated that in electricity-only mode the Willows could power 36,000 houses, the approximate size of King’s Lynn, which he claimed was a significant contribution. Dr Hogg did not www.planningportal.gov.uk/planninginspectorate Page 180 Report APP/X2600/V/12/2183389
agree and it remains KLWIN’s submission that the contribution of the Willows would not be significant and, as such, the NPS’s materiality to this Inquiry is negligible. The Willows incinerator is a waste facility: if the only objective of waste management was to generate energy then paper and card would not be recycled at all. Mr Burton and Dr Hogg were questioned on the applicants’ view that all recent waste policy documents refer to EfW providing a valuable and increasing contribution towards meeting the renewable energy targets, but this was rejected since EfW is a generic term and encompasses many other methods, not just incineration. Some of the energy would be generated by anaerobic digestion, and, in comparison, the energy contribution of incineration is expected to be rather small.
869. A great deal of Dr Hogg’s written evidence focuses on whether the facility incinerator might in fact be deemed to be an R1 facility. During the final days of the inquiry, the applicants provided the parties with document C77 which is confirmation from the EA that the incinerator has been granted an R1 certification. This is based on the information that the applicants provided and presented in their application; it was indicated during the course of the inquiry that they had made this application. (Inspector’s note: This issue is covered in the procedural matters above).
870. During questioning on the R1 status and its implications, it was acknowledged by the applicants that R1 provisional certification is by no means conclusive and the Inspector and the SoS have to have due regard to the weight to be given to this, as it is still possible that final R1 certification would not be achieved. In addition, Dr Hogg believes that the facility would undermine the ability of Norfolk County Council to meet their duty under Regulation 12 of WR2011 [CD/L8] to ensure that waste is dealt with as high in the hierarchy as possible. It is also stated in the WS2007 [CD/24, page 72] that waste needs to be managed as far up the waste hierarchy as is reasonably achievable.
871. There is no question that the incinerator would be burning material that could and should be recycled, as admitted by Mr Boldon during questioning. Evidence has been provided to show that only part of Norfolk recycles its food waste, therefore all the food waste from the remainder of the County would be burnt. Government guidance [para 204, CD/U23] states that “it is important to treat food waste as high up the hierarchy as possible, through anaerobic digestion or composting” and this is not going to happen in Norfolk, demonstrating that Norfolk is not actively looking to treat waste as high up the hierarchy as possible, which is a breach of the duty in the WR2011.
872. Furthermore, in relation to the waste hierarchy, by reference to the WR2011 [CD/L6] and rWFD [CD/L6], Dr Hogg’s view, when questioned, was that the waste hierarchy was relevant at planning application stage, even where it might be consistent with a waste management plan, as indicated in the letter from Mr Quartermain to Chief Planning Officers [CD/U7]. This demonstrates that there are occasions when the hierarchy is relevant at the planning application stage, and it is KLWIN’s submission that it is highly relevant in this instance and should be given great weight.
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recycle, contrary to the applicants’ view that the priority is the urgent need to divert waste from landfill. Commitment to a long term contract for EfW, when technology is advancing and there are already alternative methods of dealing with their MSW as put to the inquiry means that there should be a more flexible approach. The incinerator would operate in such a way that NCC fail to move waste up the hierarchy and would be in breach of their legal duty to do so.
Emissions Modelling
874. Mr Bramwell presented evidence on behalf of KLWIN in relation to the emissions modelling that was undertaken by the applicants and is contained in the ES. When giving his evidence in chief he also provided a scale three dimensional model of the incinerator as it relates to the revised approved Centrica B plans. KLWIN hope that this model was helpful to all those involved in this Inquiry to clearly see the very close relationship between the two proposed facilities. As the model could not be formally submitted as evidence two photographs were provided [W15a & W15b] to show the model from the direction of the prevailing wind and at ninety degrees to it.
875. It has been KLWIN’s position throughout this Inquiry that the modelling undertaken by the applicants was not sufficient to fulfil the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 [CD/L3]. Regulation 3(4) provides for the prohibition on granting planning permission without consideration of environmental information.
876. It states that “the relevant planning authority or the Secretary of State or an inspector shall not grant planning permission …unless they have first taken the environmental information into consideration”. It has been advanced that little regard needs to be had to the environmental information as part of this Inquiry as the incinerator has already been granted an environmental permit. Guidance has been oft quoted to say that the planning and pollution controls are separate and distinct and must not carry out each other’s functions.
877. Whilst KLWIN accept that Government guidance, for example, [CD/U5, para 27] does make the separate nature of these two regimes clear, it is KLWIN’s submission that as part of the determination of this planning application regard can and must be had to the failings of the environmental information provided to this Inquiry. It is KLWIN’s submission that this is clear under the regulations quoted above, and also that it is supported by case law.
878. KLWIN would refer the Inquiry to the case of Hopkins Developments Ltd v. First Secretary of State and North Wiltshire DC 2006, EWHC 2823 (Admin). This case confirms that the planning authority is not prevented from making a judgment on the impacts of the proposed development on the surrounding area, which can include pollution impacts, in deciding whether to grant planning permission. Mr George Bartlett QC, sitting as a Deputy High Court Judge, also confirmed at paragraph 11 that emissions to air were capable of being a material consideration in planning applications. It is therefore KLWIN’s submission that the adequacy of the environmental information, particularly the air quality modelling, is capable of being considered by the Inspector and the SoS.
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879. In light of the above, it is KLWIN’s submission that the air modelling has not correctly taken into account the very complex relationship between the incinerator stack emissions and the very much larger air exhaust released from the approved Centrica B Air Cooled Condensers. Modelling was carried out by the Applicant using ADMS version 4.2 software. Evidence has been provided to the Inquiry by KLWIN [W206] demonstrating that the very creators of the software admit that it will not be able to model this interplay, and that CFD would have been the appropriate tool given the local circumstances.
880. KLWIN are sure that the applicants will refer to the remainder of the contents of this evidence which states that to use CFD would be very expensive and in their opinion not worth doing. KLWIN would counter this by saying that the importance of the air quality modelling goes to the very heart of this application, and has a bearing upon the ecological and health implications of the effects of the incinerator. The applicants and NCC have sought to reassure the public, a great proportion of whom are represented by KLWIN, that the incinerator would not cause an adverse effect upon either the local ecology of the health of residents. It is KLWIN’s submission that given the considerable financial resources of the applicants, CFD modelling could have been undertaken, and if the results had supported the applicants’ position then this would have acted to allay some of the considerable fear that the public hold in relation to the proposal.
881. In addition, if the software used cannot model the situation, KLWIN find it extraordinarily difficult to believe that the attempt to model the situation by a temperature sensitivity calculation, as provided by Dr Broomfield, could adequately compensate for this. KLWIN were not persuaded by the arguments provided by NCC in this regard.
882. During questioning, Mr Bramwell was criticised for not providing any quantitative analysis of the modelling that was undertaken. KLWIN have not provided any results of alternative modelling, the use of CFD in this situation will not be straightforward since it can only model one set of weather data at a time. Adequate re-modelling would require agreed modelling experimental design that takes advantage of both alternative modelling packages in combination to meet the complex challenges of this unique situation. Furthermore, they repeat their submission that they have never been fully provided with all the necessary data sets needed to complete this modelling. They accept that they have been referred to the information in the ES, but it is their submission that this information alone is not adequate.
883. KLWIN feel the inadequacy of the air modelling is further heightened by the lack of drawings showing the correct location of the revised layout of Centrica B. As is seen in CD/A17, the Centrica B site was re-arranged in 2010 to allow for carbon capture, placing the power station much closer to the Willows incinerator than illustrated in any of the drawings submitted by the applicants and in fact all drawings, even those issued on the opening day of the Inquiry, placed Centrica B in the pre-2010 location. The air cooled condensers of Centrica B will be far closer to the incinerator stack than people have been lead to believe. Indeed, it was also noted that at the Inspector’s visit to the site, inaccurate drawings were still being shown. KLWIN hope therefore that they have clearly demonstrated, especially by providing the 3 dimensional model, that the two facilities will be much closer in proximity than may have been initially thought producing the unique interaction www.planningportal.gov.uk/planninginspectorate Page 183 Report APP/X2600/V/12/2183389
between the two discharges. It is KLWIN’s submission that this is also important as it was the technical information and the various drawings that have been used to inform the various statutory consultees and upon which they have drawn their conclusions, if that information is flawed, so too must the conclusions that have been drawn from it.
884. Further to KLWIN’s submission that Centrica B’s correct location has not been adequately assessed, Mr Broomfield confirmed, in response to questions, that there was a risk that fugitive ash dust from the IBA handling could be drawn in to Centrica B’s air cooled condensers, which as illustrated by the 3D model are only some 50m away. This has two potential effects, one of fouling the condensing tube fins lowering their efficiency and secondly adding the dust to the condenser exhaust which will distribute it far and wide. Since the condenser efficiency is at the heart of the performance of the Power Plant any fouling will increase the fuel used per unit of energy generated resulting in increased operating costs and greenhouse gas emissions completely nullifying any benefit claimed for the EfW Incinerator. The applicants did complete some modelling with respect to the fugitive ash dust but KLWIN submit that they failed to take any account of the distribution by the condensers.
885. It is therefore KLWIN’s submission that under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Inspector and SoS have the grounds to refuse the planning application as the environmental information provided is flawed and therefore, the correct environmental information could never have been taken into consideration.
Air Pollution Dispersion
886. Mr Hughes evidence draws upon the conclusions of Mr Bramwell. During questioning Mr Hughes was not persuaded that in-combination effects of the facility with Centrica B for example, were correctly taken into account, and states that this is a requirement of the Habitats Directive [CD/L12, Article 6(3)]. It is his position that he did not see that this was given consideration by NE, or that there was suitable consideration given to this in the ES.
887. It remains Mr Hughes opinion that, given the inadequacies of the environmental information, it is impossible to know the process contribution that would be made by the facility, and the effect that this would have, both on local ecology, such as the habitats at Roydon Common, and also on the health of local residents.
Ecological Impact
888. Mr Stevenson provided thoughtful evidence in relation to the potential adverse ecological impacts of the proposed incinerator upon the ecologically sensitive, nationally and internationally protected site of Roydon Common.
889. Mr Stevenson, who has a more extensive personal knowledge of the site than do the applicants or NCC, has explained to the inquiry that the historical precision of recording the ecology of the site is not adequate for the purposes of informing the Inquiry. Ms Colebourn, when giving her evidence on behalf of the applicants, explained that a competent surveyor, who may not have historical data to hand, will use indicator species and use those to make an assessment. KLWIN note that www.planningportal.gov.uk/planninginspectorate Page 184 Report APP/X2600/V/12/2183389
Ms Colbourn referred to a document [C34, App RE6] that itself urges great caution in the use of indicator species, and its conclusions were based solely on examination of a limited number of habitats. Mr Stevenson still finds it difficult to believe that any surveyor, regardless of their competence, on a single visit to an unfamiliar site, could draw meaningful conclusions of the impact of air pollution. He also added, when giving his evidence in chief, that even if they came to a conclusion, this should be treated tentatively at best.
890. A large proportion of Mr Stevenson’s evidence focusses on the potential effects of nutrient nitrogen upon Roydon Common, both written and verbal. KLWIN remain concerned that the applicants appear to be relying on third parties to reduce their emissions to show that the additional impact of the proposal is insignificant. This is something that KLWIN cannot accept.
891. It is KLWIN’s submission that as a matter of fact, nitrogen will be deposited at Roydon Common, and that nitrogen impacts can build up, so that even low nitrogen deposition rates can result in ecological responses if continued for long enough [W417]. In addition, Mr Stevenson has provided evidence [W416] that demonstrates that there is no support for a level of deposition below which no species changes are identifiable, and that almost one third of change points lay below the established critical load or within it. Mr Stevenson also referred the Inquiry [W412] to the fact that current and predicted future levels of nitrogen deposition are likely to have implications for conservation and the long term future. KLWIN submit that ample evidence has been provided to the Inquiry to show that the long term cumulative effects of acidification and eutrophication are likely to cause serious damage to Roydon Common’s habitats and features.
892. The applicants and NCC rely heavily, as is the usual practice, on the Critical Loads and Critical Load Function set by APIS when assessing the likely impact of harm. KLWIN respectfully submit that more research is needed in the area of critical load of pollutants at which plants may be damaged; current knowledge is simply inadequate. Mr Stevenson has provided evidence [W416] which casts serious doubt on the reliability of the limits set at present. KLWIN submit that the optimism shown by Ms Colebourn and Mr Smithers that the approach taken has been very precautionary is misplaced, as emerging science shows us that these limits may not be correct and as such the results and conclusions drawn from their application must be viewed with caution, as Mr Stevenson said when being questioned by Mr Westmoreland Smith, it would be “foolish to charge ahead in the face of emerging evidence”.
893. Whilst the Inquiry focussed on sites which are designated SSSI’s or SACs, and these are so designated due to the presence of certain habitats and features, it is KLWIN’s submission, that it has an effect upon the whole ecosystem, not just the features present. As such, the whole point of ecosystems is that they are all inter- related and if you disturb or damage one aspect, it has a knock-on effect upon all of the other features. During questioning Ms Colebourn agreed with this.
894. KLWIN also submit that the evidence of Mr Stevenson is not entirely predicated upon that of Mr Bramwell. It is Mr Stevenson’s position that harm will occur, and if Mr Bramwell’s position is accepted then even greater harm will occur. It is KLWIN’s submission that there are no circumstances where harm will not occur, it is merely a question of how much harm. www.planningportal.gov.uk/planninginspectorate Page 185 Report APP/X2600/V/12/2183389
895. In summary therefore, it is KLWIN’s submission that the applicants are unable to demonstrate that the incinerator would not result in a likely significant adverse impact upon local ecology, as is required under the Conservation of Habitats and Species Regulations 2010 [CD/L11, Regulation 21(2)], and that this, together with application of the “Precautionary Principle”, mean that planning permission should be refused.
Environmental Health Effects
896. The eminent toxico-pathologist Professor Howard gave evidence on behalf of KLWIN in relation to the health impacts that the proposed incinerator will have upon local residents if planning permission is granted.
897. It is accepted by all concerned, the Government and the EU, that PM2.5 particulates are injurious to health and that there is no recognised threshold below which there are no health impacts [CD/L17, Recital 11]. It is accepted by the Government that the exact mechanisms of the effects of particles on health are not completely understood [CD/H2, para 10]. We are told by the applicants (Professor Bridges) not to be concerned by the particulate matter that will be emitted by the incinerator and that there is more PM2.5 in our food than the impact of the proposal. KLWIN does not find this a persuasive argument and are not reassured by the evidence given by Professor Bridges.
898. KLWIN submit that the knowledge that it is accepted that PM2.5 cause harm, and that the incinerator would be emitting such particles, which includes nano- particulates, lead to a justified perception of fear by the public, the very people KLWIN represent. KLWIN submit that a perceived fear by the public can in appropriate circumstances be a reason for refusing planning permission [CD/A25, para 55-56].
899. Professor Howard gave evidence that the modelling approach taken by the applicants is too simplistic a tool to assess the human health dioxin risks. Whilst KLWIN acknowledge that TDI modelling is accepted at a governmental level, they submit, as Professor Howard indicated at the Inquiry, that the evidence provided by Professor Howard is a scientific criticism of the methodology demonstrating the weakness of the approach used.
900. KLWIN submit that whilst health may be considered quite narrowly in the context of planning inquiries, the information and evidence provided by Professor Howard was to help the Inspector and the SoS understand the potential impact of the incinerator and how that can only really be correctly understood using the body burden approach, and not the TDI approach. Professor Howard wanted to ensure that it was clear to all that TDI does not look at the actual impact but makes an assessment based on assumptions only.
901. Again, with reference to a point made when discussing the evidence of Mr Bramwell, it is submitted by KLWIN that the Inspector and the SoS can consider the impact of the emissions on the health of the local population, even if those emissions comply with the EP that has been granted.
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902. Professor Howard was somewhat criticised for the scientific evidence that he has provided as part of his evidence, in particular that not enough of it relates to the health effects of “modern” incinerators. As Professor Howard indicated, KLWIN submit that his evidence provides an objective assessment of the generic effect of PM2.5 and other particulate matter upon health, to that extent it does not matter what the source of the emissions was, but rather what is of importance is the effect of those particles on health. This can then be drawn upon to demonstrate the adverse impacts of the PM2.5 particulates that the incinerator would have upon the health of the King’s Lynn population. It was agreed by the parties that some harm would occur; the matter in issue is the extent of that harm. Professor Howard sees incinerator technology as “fail dangerous” rather than fail safe.
903. Another issue, as Professor Howard sees it is how particulate matter is looked at and assessed. Current government guidance refers to the mass of the particulates, KLWIN submit that, by doing this the quantification of the harmful effects is reduced. KLWIN submit that, in the same way that the scientific community already does so, this should be looked at in terms of number rather than mass. This has some government support, as it is accepted that the number of particles per unit of volume of air could prove to be more valuable than measurements of mass concentrations [CD/H2, para 12]. It is therefore unfortunate that legislation and regulation of particulates is still framed in terms of mass. This, KLWIN submit, again shows that the risk and cost to human health is being underestimated. KLWIN submit that action should be taken now to take this into account, not when it is too late and harm is occurring.
904. In summary, KLWIN accept that in this Inquiry, health is to be considered in the context of paragraphs 26-31 of PPS 10 [CD/U5], but submit that Professor Howard’s evidence shows the risk that health is not adequately protected by current legislative measures and government guidance.
Matters arising from the case presented by the applicants
905. Turning to the evidence provided by Mr Boldon during cross examination, KLWIN feel that the following important points came out:
1) Mr Boldon confirmed that when the waste is received at the Willows incinerator and the waste is “inspected” this would not mean that every black bag is opened and inspected, and he also confirmed that the incinerator, if granted planning permission would be burning material that could be recycled. KLWIN submit that this is contrary to the requirements of the waste hierarchy.
2) Mr Boldon maintained his position in cross examination that the ComRes Poll was proportionate and representative of local opinion, and was reliable. KLWIN simply do not accept that position. The BC poll demonstrated the overwhelming feeling in the local area, to which some 65,516 people loudly said NO to the incinerator, KLWIN do not accept that a poll of only 1,751, of which only 809 were residents of the borough, can undermine this. Recent government guidance [CD/U33] makes it clear that public concern is a material planning consideration; the BC poll was a justifiable way for the public to demonstrate their concern. They did so and now feel that they were not listened to.
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3) KLWIN are still greatly concerned by the track record of Wheelabrator, and despite the applicants’ best efforts, are not reassured that Wheelabrator are a suitable partner for Cory Environmental to handle the running of the proposed incinerator. The air emissions and monitoring violations of Wheelabrator in the USA are important, and this also goes to demonstrate that the perceived risk of harm and fear by the public is justified. In addition, in written evidence [C11, App 7], Mr Boldon states that the applicants’ approach is “always one of openness”. KLWIN fail to see that this has in fact happened, and submit that the limited information provided by the applicants in relation to Wheelabrator misdemeanours in the USA are not truly reflective of the extent of the issues.
906. In relation to the evidence of Mr Goodrum, silence on this issue, in terms of the written evidence KLWIN has provided to this Inquiry, does not necessarily mean that KLWIN do not object to the Willows incinerator on landscaping grounds, but is as a direct consequence of their limited resources.
907. To the extent that it is possible to take this into consideration as part of this Inquiry, KLWIN submit that emphasis is placed upon how the visual impact is perceived by people (see, the European Landscape Convention 2000, and also the evidence of Mr Richard Morrish), and as such it is KLWIN’s submission that if the incinerator were granted planning permission the facility would be seen as a constant oppressive reminder of the failure of the democratic process.
908. KLWIN have also not provided evidence in relation to flooding but again wish it to be noted that their silence is a result of the limited resources that they have. The element of flooding was comprehensively covered by the BC and as such KLWIN have no submissions to make on this area.
909. KLWIN were not persuaded by the arguments provided by Mr Smyth, for the applicants, in relation to air quality and note the following:
1) The pollution filters to be used by the applicants have not yet been decided, but they submit that this does not matter as their type of control is considered BAT by the EA and is a matter for pollution control. KLWIN submit that given the variability of the different bag filters, the public have little confidence that the best technology will be used, only one that is good enough. This again goes to the perceived risk of harm, and given that Professor Howard gave evidence to explain that the fine particles act like a gas and will escape, it would have been reassuring on the part of the applicants if the information about the likely filters that will be used had been given.
2) KLWIN were not persuaded by the arguments in relation to odour release and remain concerned that in the event of a routine maintenance shutdown odours will be released and cause harm to the public.
3) As stated above in relation to the evidence of Mr Bramwell, KLWIN remain unconvinced that the air quality modelling carried out by the applicants fulfils their obligations for the reasons already given. They are further concerned as to the adequacies of the environmental statement given that further modelling was undertaken and an errata submitted correcting some of Mr Smyth’s data. Again KLWIN submit, that whilst they are told that this is a matter for pollution control, this should be taken into consideration for reasons already given. www.planningportal.gov.uk/planninginspectorate Page 188 Report APP/X2600/V/12/2183389
910. Professor Bridges provided evidence in relation to health on behalf of the applicants, and it was clear that he and Professor Howard differ greatly in their opinions. Professor Bridges maintains that there should be no residual concerns about health, basing this on his position that there will be no significant impact upon health. KLWIN remain wholly unconvinced and submit that the evidence provided by Professor Howard shows that there would be risks and that the public is justified in its fear. As already stated, some harm would occur; the question has only been over how much. The public and KLWIN feel that the fact that some harm would occur and this justifies their position.
911. Mr Aumônier provided evidence for the applicants in relation to carbon balance, energy and renewable energy policy, climate change and the question of whether the facility will be a recover facility. Questioning was conducted by Dr Hogg on behalf of KLWIN on this matter.
1) Mr Aumônier confirmed that the Government requires a radical reduction in GHG emissions by ensuring a low carbon infrastructure, and that the facility would be low carbon. Dr Hogg asked if Mr Aumônier had provided any calculation in relation to the carbon intensity of the proposal, to which Mr Aumônier stated it was not part of his evidence. KLWIN submit that Mr Aumônier cannot state that the facility would be low carbon without this, and such little weight should be placed upon this assumption.
2) Much has been made of the fact that the facility would be partially renewable energy, by virtue of it burining biomass. When questioned by Dr Hogg as to what the percentage would be of the energy generated that is renewable, Mr Aumônier admitted that he did not know as he could not predict the amount of biomass that would form part of the feedstock in the future. KLWIN submit that this goes towards their argument that the facility would not be a low carbon renewable energy facility but rather a waste facility, with a minor by-product that some energy would be produced.
3) Mr Aumônier, when cross examined in relation to recycling rates, stated that the facility would need to rely on Norfolk increasing its recycling rates in order to ensure that the incinerator would not burn recyclable materials; a task which he did not believe would be easy to achieve. KLWIN submit that evidence has been put before the Inquiry to show that Norfolk could increase its recycling rates, and Boroughs such as King’s Lynn are making headway in this with the introduction of the food waste separate collection.
912. Ms Colebourn presented evidence for the applicants in relation to ecology. Those points to which KLWIN felt the need to respond have been covered in evidence or previously in these closing submissions. KLWIN do not agree with Ms Colebourn that a precautionary approach has been taken.
913. The last witness to present evidence on behalf of the applicants was Mr Miles, who covered the whole process from a planning perspective. Aside from those points noted subsequently, KLWIN feel no need to respond to the points made by Mr Miles. KLWIN has submitted evidence which contradicts this position and hope that this is preferred by the Inspector and SoS.
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1) In relation to the waste hierarchy, Mr Miles submitted that what must be looked at is what is reasonable and practicably achievable. KLWIN submit that it is perfectly reasonable and practicably achievable for Norfolk to increase its efforts to reduce, reuse and recycle and that they should not see incineration as short cut to dealing with our waste and not considering who they could further their duty to apply the waste hierarchy. 2) Mr Miles provides in his evidence a “rebuttal” from the Waste Disposal Authority. KLWIN object to this being given any weight in this Inquiry as there was nobody from the WDA present at the Inquiry to be tested on their evidence and as such little weight should be attached to it. KLWIN have also drawn attention to the request for a Direction from the SoS under either section 21(1)(a) or section 21(4) of the 2004 Planning and Compulsory Purchase Act 2004 on the adoption of the WSSA. Their view is that it would be inappropriate to take the DPD into consideration for the purposes of the planning inquiry.
Matters arising from the case presented by Norfolk County Council
914. The first witness to present evidence on behalf of NCC was Dr Broomfield who looked at air quality and health matters. KLWIN clearly differ on these issues and have addressed those points of most importance.
915. In relation to the evidence of Mr Smithers, KLWIN were not persuaded that no harm would occur in terms of adverse ecological impacts.
916. In relation to the evidence of Mr Palmer, KLWIN are grateful to him for confirming the lack of clarity in the various plans and drawings before the Inquiry as to the location of proximity of the incinerator with that of the revised approved Centrica B power station, in particular the location of the air cooled condensers. KLWIN have already made their closing submissions on the incredible importance of this information, but would add that Mr Palmer acknowledged that, as principal planner, it is his role to consider the proposal in the context of its surroundings. KLWIN submit that this is not possible to do without fully appreciating the interplay between the two facilities when they are in their correct respective locations.
Conclusion
917. For the above reasons and in light of everything that has happened at this Inquiry, including the very clear strength of feeling displayed by the local people of King’s Lynn, KLWIN respectfully submit that the Inspector do recommend that the SoS refuses planning permission for the application.
The Cases for Interested Persons
Supporting representations
918. Mr P Morgan [SUP1]. The referendum was structured in a manner to get an overwhelming vote against the proposal, with no information in favour of the proposal but only information against it. The BC’s Material Works proposal is flawed. It has been alleged that the proprietor does not have a good track record with his previous companies and that the review of the project undertaken was not sufficiently independent. Other means of waste treatment like MBT would still
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produce significant amounts of material going to landfill, although the kitchen waste collection recently commenced in parts of Norfolk would reduce the suitability of residual waste going to MBT. The plant would be part of an integrated waste management service for Norfolk on industrial land using a proven process.
919. Mr J Reed [SUP3]. The proposal would be a modern facility, capable of isolating gases and preventing pollution. Other plants in this country eg Derby, Perry Barr and Edmonton, operate successfully even when they were commissioned in the 1970’s and the Cory Wheelabrator plant at Riverside which he has visited, is a clean and efficient process, capable of being next to an Asda distribution depot and housing. NCC have assessed different technologies and found the applicants’ EfW proposal to be best for Norfolk. There are many incinerators already operating the UK with many more planned and the operators in this case and their parent company have a good track record. The facility is urgently needed to prevent more material being landfilled.
920. Incinerators are calculated to cause only 0.2% of airborne pollution, compared with 16.2% for bonfires and much air pollution is caused by vehicles and other industrial processes. The site is well located, near the strategic road network and Palm Paper, who could use the steam/power and the facility would be co-located with recycling. The BC’s poll was flawed and there might have been a different result if Cory had been allowed to put their case properly. The local newspaper also opposed the plant vociferously. The proposal would be backed by Government money, PFI credits, which will help the local community and save money by not landfilling. Delays and legal challenges have already been costly. If the facility were not built there would be further costs and the possible need to transport Norfolk’s waste elsewhere in the country.
921. Mr C Whittred [SUP4] has a business close to the site. The proposed development would give a boost to local businesses and would support the local economy. The incinerator would not have an adverse effect on health for local people and their children. The Riverside plant in London has shown that the applicants are able to run what is a much bigger plant with no pollution. The proposal would be good for the area. Ms P Johnson [SUP5] supports the proposal as a new facility which would give a boost to the area. She is confident that the EA and Government are capable of ensuring health and safety and that there would be little impact. The site is part of a currently underused area of the town. It would create employment and bring life to the area.
Objectors
922. Mr H Bellingham MP [OBJ13] set out a number of objections to the proposal. These included the flood risk to the site, as it is on a floodplain and there are other sites not at flood risk in the sequential test. The site itself is not the best location, as it is a considerable distance from Norwich the main area for waste arisings and even further from Great Yarmouth. It is also upwind of King’s Lynn and Professor Howard’s evidence showed the potential health impacts for local people, in terms of nanoparticles and toxins. As there is no certainty of what will be in the waste stream, it gives rise to fear about the emissions and the effect on health, especially for the very young and the very old. Wheelabrator’s record on environmental matters is not good in the USA.
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of some of the protected species and the threats to them. Therefore the precautionary principle should be applied. There are also jobs at risk if the shellfisheries were to be adversely affected. The Nar valley is a gem and recognised by the World Wildlife Fund, as a pristine chalk stream, which would be put at risk. There is also a threat to Roydon Common, where the NWT have concerns about acid and nitrogen deposition on important plant species and habitat.
924. The proposal would blight King’s Lynn and the development projects, like NORA, which is only starting to get established, and the proposed large new developments to the south of the town. The proposal would have a large carbon footprint and would not be in compliance with the waste hierarchy. In addition, there are also concerns about traffic congestion on the A47. There are also serious concerns by local people about the way in which the contract and the planning application was handled by NCC over a number of years. There has been a lack of transparency and regard for local people’s views as shown in the BC’s referendum and votes at public meetings. Any goodwill that there was towards the project has gone and it has been replaced with fear, unease, anxiety and stress.
925. Ms E Truss MP. The proposal has led to a significant public concern locally. Progress has been made with recycling of glass and plastics and there are further initiatives which will reduce waste further. These should be considered before resorting to EfW. The creators of waste should take more responsibility and it should not fall on the public purse. The co-ordination of facilities with neighbouring authorities should also be considered, especially when such large travel distances would be involved and there is available capacity. Local transport networks, for example the A47 and A17, are already struggling with HGV traffic. The PFI contract would tie NCC in for 25 years when it is not known what waste will be available then. There are dangers that being tied into the contract would also reduce efforts to increase recycling. Questions have to be asked of whether this plant is a good use of public money, at £169m, when there are other priorities for Government. The BC’s poll produced a huge turnout and a large majority against the proposal and there are serious local concerns about how decisions have been reached on the proposal. The call-in of the application means that people can now have a proper say on the planning application.
926. Mr R Howitt MEP [OBJ162] covered several areas of evidence. The first area covered was environmental legislation and the need to move waste up the hierarchy. Mr Howitt believes that EU countries are moving towards much higher rates of recycling and the plant would be a disincentive to improving rates locally. There will be overcapacity in the UK if all planned projects were built. New European measures will ensure that more efficient use is made of what is currently waste and prevent it in the first place. He also has concerns about the mishandling of the process and there has been a lack of investigation of the record of the applicants. NCC now has responsibility for improving health and tackling health inequalities. The health risk for the proposal and the cumulative impact on those with existing disease has not been properly taken into account. EU legislation on PM will be tightened and there are further requirements for Councils to monitor air quality levels. Other options should have been considered. Instead, this unwanted solution will have to endure for the 25 years of the contract.
927. Ms J Perryman [OBJ1] Ms Perryman’s objections focus on the need for the facility, whether it represents a sound economic choice for local people, and its environmental and health implications, together with material on the
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actions/comments of NCC, the EA and the local NHS/ PCT. The need for the facility is questioned when the inquiry was presented with evidence of falling waste arisings and growing capacity in the region. In addition, the sole focus on this type of facility as being the best use of public resources, as opposed to other technologies like AD, and local projects like Material Works, is questioned. The siting and visual impact on entrance views to King’s Lynn are also concerns, especially given the lack of need for CHP from Palm Paper.
928. Ms Perryman’s main focus is on the health and environmental implications of the proposal. She claims that the evidence presented by the applicants fails to provide adequate assurance about these matters, especially given breaches of emissions levels elsewhere in the UK and the alleged record of Wheelabrator in the United States. She maintains that the emissions would adversely affect AQMAs in King’s Lynn. Ms Perryman also has concerns about flood risk and that the withdrawal of the EA’s objection when there was still the potential for flooding to allow pollution of watercourses and the local area from the waste and IBA. She further objects to the potential threat to air quality from emissions from the plant, which would be exacerbated by local temperature inversions. She has concerns about the air quality modelling and comments that the granting of the EP was premature, with the full environmental and health implications not being taken into account. Ms Perryman is concerned that the local NHS/ PCT have drawn on generic statements about the impact of incinerators on health, for example from the HPA, and not taken into account more local concerns, for example, the existing high rates of respiratory disease in the areas closest to the site, which also suffer social deprivation. She also has concerns about the accountability of the EA and the NHS/PCT and criticises the close working relationship of the NHS/PCT, a leading officer of which has now resigned, with NCC. She is also critical of NCC in removing other potential sites for TT from the WSSA, so that proposal became the main option for waste treatment in the County and the general lack of democracy and accountability about NCC’s decisions on waste management.
929. In commenting on the Inspector’s report on the WSSA, Ms Perryman calls into question the validity of two Inspectors sitting at the same time on similar issues and has concerns that the examination into the WSSA was premature and should have followed a decision on this application. She is also concerned that members of the public had not been told of the significance of the WSSA and therefore did not take a full role in the examination of it. She requests that the SoS delays the adoption of the DPD is delayed until there is a decision on this appeal. She goes on to make a number of detailed points about DPD. However, these are matters which needed to have been put to the WSSA examination and cannot influence the weight of the DPD once it has been found “sound” by the Inspector.
930. Mr C Davies [OBJ2] objects to the proposal on the grounds of its potential emissions and the psychological impact on the well being of the local population as a result of fear of the health impacts of the facility and lack of control over the decisions, such as the on the monitoring of the facility. Cllr N Daubney (Leader of the BC) [OBJ4] mainly addressed the local poll, undertaken and funded by the BC. He set out the results of the poll (65,516 people voted against it) and the lack of account of the result taken by NCC. Cllr Daubney is concerned that attempts were made to discredit the poll, despite his appearances at NCC meetings. Cllr Daubney is also concerned that there was no debate or proper scrutiny of the decision and that the incinerator has never been the subject of any manifesto or written strategy. An alternative solution to manage the waste should be found. Ms S Buck www.planningportal.gov.uk/planninginspectorate Page 193 Report APP/X2600/V/12/2183389
[OBJ5] was concerned about the impact on residential areas close to the site, where people have high incidence of respiratory disease, the high risk of flooding and as a result low house prices, trapping them in that area. She states that the EP acknowledges that emissions could exceed the limits, which would adversely affect local residents and prevent regeneration through NORA.
931. Mr R Brown [OBJ6] is a potato and vegetable farmer, who also spoke on behalf of a neighbour who is a fruit farmer. He has concerns that the applicants have a poor record of compliance with environmental standards and that monitoring of emissions would be inadequate, leading to an adverse effect on crops, food and farmland. Mr M Nurse [OBJ7] objects to the cost of the proposed incinerator, the likely carbon emissions from it, the unknown composition of C&I waste, inadequate monitoring and the health effects of emissions from the plant. Cllr P Foster [OBJ8] represents West Winch ward and states that the proposal would be contrary to the MWCS. He quotes a number of paragraphs which cover: the lack of account of higher rates of recycling; the “proximity principle”; adverse effects on the landscape; climate change and carbon emissions; the lack of consideration of other sites/methods for waste treatment; emissions and effects on health and the perceived harm of the plant. He requests that the applicants withdraw the application to comply with the wishes of local people.
932. Mr P Williamson [OBJ10] objects to the proposal on the grounds of flood risk and the likelihood that the effects of flooding could not be effectively managed, in terms of effects of on-site and off-site flooding and pollution. The local IDB has objected to the proposed discharge of surface water and this has not been resolved. He also has concerns about the effect of burning undisclosed material on the health of residents and the environment. Mr J Doubleday [OBJ12], a local farmer, objected on the grounds of flood risk, of which he has personal knowledge from the 1953 floods, being one of the nearest residents, and the visual impact from his property. He also has concerns about potential problems with traffic on the A47 and the cumulative impact of construction work on this site and Centrica B.
933. Mr J Oliver [OBJ14] commented on the depth of public feeling about the proposal and the fear about the proposal. He objects to the proposal since it would not aid recycling, since recyclable material could be burnt, and that more sustainable alternatives have not been considered. The location of the proposal was inappropriate, in the far west of the county, in terms of the proximity principle. The site itself was at flood risk and would have an adverse impact on the landscape. His view was that the weight should be given to the local poll and the application be refused. Rev W Howard’s [OBJ15] main concerns were the source and mixtures of wastes to be burned in the facility which could not be adequately checked and that hazardous waste could end up being burned, which could have an effect on the emissions. Ms A Reeve [OBJ16] stated that the proposal was not a sustainable waste management solution, where waste was treated as a resource. She also expressed concern about flood risk and pollution from air and water sources, with impacts on human health, fauna and flora including eels. She objected on the grounds of the visual impact on the historic King’s Lynn quayside and the NCC consultation process an also commented on the relatively few jobs that would result from the scheme.
934. Ms E Crowther [OBJ17] criticised the application in having no regard to SEA and not fulfilling the requirements of EIA, which she believes are both relevant to the application. A full description is required of fauna, flora, air and water and then
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the effects on them by the proposal, including indirect and synergistic effects. She lists the legislation which covers SEA and EIA and says that these should have been taken fully into account and that public opinion has a role to play in such considerations. Mr J Dickie [OBJ 22] represents Green Energy Parks who intend to build a fusion advanced MRF facility in King’s Lynn, to service their current development in Peterborough. Mr Dickie claims that this plant would have sufficient capacity to treat all the residual MSW waste that is proposed to be incinerated in the facility proposed in this application. Mrs J Leamon [OBJ 23] is a local councillor, vice-chair of the West Norfolk Patient Partnership and Chair of North Runcton PC. Her main concern is about the fear of local people about emissions from the plant and the potential harm to their health from pollution, especially where their health is already compromised. The visibility of the plume for much of the time would be a reminder of those fears. She also has concerns about levels of HGV traffic and the further pollution and noise that this would bring to local communities. She states that traffic levels and emissions would harm tourism and the historic buildings and conservation area of King’s Lynn. Few jobs would be created in a plant that is not wanted by local people and there is suspicion about the contract between NCC and the applicants, for example, about the types of waste to be burnt.
935. Mr M Coote [OBJ26] objects to the secretive atmosphere around this application and the use of public money for the proposal. He is also concerned about emissions from the plant, possible infringements like those of Wheelabrator in the USA and the likelihood of inadequate monitoring by the EA. The HPA’s views on the health effects of incineration, especially concerning levels of dioxins, are not supported by evidence. The siting of the proposal is wrong, being one large proposal in the west of the county, and will generate excess traffic on poor roads. Local people have voted against the proposal and to allow it would mean that they would have to live with pollution, violating their human rights. Mr and Mrs Skerritt [OBJ27] object to the proposal, which would be visible from West Winch, together with the other large industrial units and their stacks planned for the area, harming the landscape and polluting the area. They make similar points to others about the location in the west of the county, the progress of technology, flooding, fear of risk to health and local opposition to the proposal.
936. Cllr A Kemp’s [OBJ28] main concern was the health of people in the ward that she represents, which is one of the most deprived locally and nationally, in terms of child poverty, respiratory illness and other measures. The siting is due to NCC’s land ownership and CHP potential, although Palm are now taking other alternatives. However, the decisions taken have not taken into account local people’s health and this will be a new concern for NCC following a change in their responsibilities. The DEFRA report on the effects of incinerators, which showed little effect on health, was adversely reviewed by the Royal Society. The air quality monitoring undertaken by the applicants was of poor quality and there had been little monitoring of PMs. The facility is not wanted by local people and is not needed as there are other alternatives, including increased recycling.
937. Ms J Franklin [OBJ29] believes that the proposal would be contrary to PPS10 paras 20 and 30, as the PIC, Norfolk Arena and the HWRC have not been identified as sensitive receptors, which are heavily used by members of the public. The PIC also detains people for significant periods of time, who would be at risk from flooding and emissions. She says that this omission is an inadequacy of the ES, together with the air quality modelling. Such people would be at risk from www.planningportal.gov.uk/planninginspectorate Page 195 Report APP/X2600/V/12/2183389
emissions, including dust from the IBA facility, odours and noise and vibration. She has also submitted evidence that people with existing respiratory problems have not been sufficiently considered, contrary to para 30 of PPS10. She makes similar points to Cllr Kemp on the DEFRA and HPA reports and has particular concerns about the impact of PM on health. The alleged violations by Wheelabrator in the US have not been investigated thoroughly by the EA and these incidents have led to distrust of the applicants. She has also alleged that the applicants misrepresented themselves to 2 local supermarkets in order to get promotional displays in their stores.
938. Mr B Clark [OBJ30] Chair Sedgeford PC, also has experience of virus research. Although the area he represents is 15 miles away, odour from the former sugar beet factory on the site could be smelled and it is likely that pollution would also travel as far. His main concern is that the facility could not be made 100% safe and particulates, which would pass through filters, would have an adverse effect on health. His experience with viruses has shown that caution is needed. Mr S Fox [OBJ31] was mainly concerned with the visual impact of the proposal on the landscape; the impact of the proposal on recycling and on local health, including the nearest receptors at the Norfolk Stadium and the travellers’ site. He also had health and safety concerns about the use of IBA-based aggregate in concretes. Mr J Elliot’s [OBJ32] main concerns were about the composition of C&I waste and lack of information about it. His view was that much of this material could be reused/recycled and this has not been taken into account. Mr J Dearling [OBJ35] objects to the lack of transparency in the application process and the lack of evidence to show that the incinerator would be safe in operation, given the findings of the BSEM report, and inadequate monitoring. He claims that the risk to people from the IBA has not been properly evaluated and that the facility would add to already poor air quality from outdated technology in King’s Lynn. As such it would offend local people’s human rights. In addition, he considers that the facility would be at risk from flooding.
939. Norfolk Wildlife Trust (NWT) [OBJ36]. The first set of objections focus on the potential impact of air pollution on internationally important (SAC and RAMSAR) wetland vegetation, including habitat H7150 in the Roydon Common part of Dersingham Bog and Roydon Common SAC. NWT rebut the applicants’ approach as being over-simplified and emphasise the need for a precautionary approach, respecting the views of APIS and JNCC. The SoCG (X6) establishes agreement that such habitats were present and extended to the western area of the site, the CLF for acid was precautionary and was less than 0.9% of CLF, assuming the modelling is correct. A second, amended, proof examines the AA carried out by NCC, which it says was necessary but had shortcomings in terms of a lack of survey and analysis and did not consider the Ramsar features, which had led to unsound conclusions. NWT’s view is that the location of the facility had not taken into account the potential effects on Roydon Common.
940. Mr J Preston [OBJ37]. There is a need to reduce and recycle waste rather than burn it for the period of the contract. The plant would have an adverse impact on the health of people and animals. It would not help to reduce carbon dioxide and has not taken into account peak oil. The facility is not wanted by the majority of local residents. Mr E Tonkyn [OBJ38] is most concerned about emissions monitoring and environmental impacts. He has concerns that monitoring would not usually occur when emission levels would be highest. In established incinerators there can be complacency and failures can occur. The environmental impacts are www.planningportal.gov.uk/planninginspectorate Page 196 Report APP/X2600/V/12/2183389
more likely to affect children, as in China, and it would be better to use alternative technologies.
941. Mrs B Knights [OBJ39] had growing concerns about the proposal and its health risks, including to the family blueberry farm, and therefore had researched similar facilities in Austria and Germany. A plant in Vienna, MVA Spittelau, has had problems with fires, as have other plants in Germany and Austria. King’s Lynn does not have the infrastructure in the event of major fires/accidents. Other plants in Europe have also been responsible for excessive emissions, including dioxins and particulates. EfW programmes there are being discontinued through lack of waste and increased recycling. Local people’s views have been ignored and there has been a lack of transparency in decision-making.
942. Mr S Wilkie [OBJ40]. Firstly, Mr Wilkie objects to the lack of assessment in the ES of protected species: the harbour porpoise, European eels and white beaked dolphins, which are all present locally and named in the Wash BAP, with harbour seals swimming up the River Ouse beyond the site. The effects in terms of pollution and disturbance, for example from piling during construction, have not been fully assessed in the ES. The provisions of the Habitats Directive have not been followed (Morge vs Hampshire [2011] UKSC 2). There has also been an objection from the Wash Estuary Strategy Group on water quality. In addition, air emissions would adversely affect protected migratory birds feeding on farmland for worms. Secondly, water use for the facility would have to be from the mains. Anglian Water have confirmed that they have the capacity but this would be an expensive waste of resources. The planned surface water discharge to a ditch which would eventually go into the River Ouse and the Wash could cause pollution. Also, flooding has not been properly modelled in terms of breaches and the siltation of the River Ouse has not been taken into account.
943. Mr Wilkie also has concerns about human health effects, including particulate matter, as shown in his submitted DVD The Factory. The emissions from the factory gave rise to increased respiratory illness and costs in terms of healthcare. It would also add to air pollution in existing AQMAs in King’s Lynn. He states that there are better alternative sites for waste management, for example at Coltishall, Costessey or Snetterton, and alternative technologies eg. osmotic power and tidal pumps could be used. Attention should be on improved recycling rates which are poor in some areas, like Great Yarmouth. Coltishall would be a good alternative site with access from all areas of the county, whilst maintaining heritage assets.
944. Mr I Wagenknecht [OBJ43] objected to the proposal on the grounds of the lack of public consultation on NCC’s decision to pursue EfW rather than other waste treatment methods, such as landfill mining and Gasplasma techniques. Given overcapacity across Europe, trends are now towards more recycling and use of waste as a resource and there is no need for incineration or landfill and the health risks associated with it. In addition it would be contrary to WS2007 and PPS10 in not following the waste hierarchy. Cllr G McGuiness [OBJ44] objected on the grounds that there has been a democratic deficit and the views of local people have not been taken into account. There would be adverse impacts on the health/pollution, on which Wheelabrator have a poor record, and the regeneration of an already deprived area. The infrastructure is inadequate for such a proposal and it would not comply with the waste hierarchy or the proximity principle.
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945. Mrs S Pomeroy OBE [OBJ46] objects on the grounds of the lack of democracy, health impacts, for example, the mortality of those with existing health problems from PM, anomalies in the Health Impact Assessment and ES, and an adverse effect on the landscape. Ms L Barnes (xprds) [OBJ 47]. Her company is involved with Ecocycling which is an alternative waste treatment method and a sustainable alternative to EfW. Ms J Knights [OBJ48]. Her main objections were to the lack of effective environmental control. She questions the monitoring and measurement of PMs and notes anomalies in data, which show the number of PM2.5s exceeding the number of PM10s, which should not be possible. It is likely that smaller PMs, which can damage human health, would not be properly measured or monitored. The EA’s confirmation that the bag filters would be BAT, when they do not know the type of filter that would be used, should not have weight.
946. Mr R Coates [OBJ53] objects on the grounds that the standards adopted to monitor the emissions might not be sufficiently strict. He gave examples of ideas that were subsequently shown by science to be incorrect or unsafe. Mrs C Hall [OBJ55] objects on the grounds that the site is at flood risk, being in Zone 3a. The flood risk to the site would be contrary to national planning policy (PPS25 and now NPPF). As there would be some hazardous waste on the site, for example APC, there would be adverse consequences for water quality. There has been a lack of maintenance on the rivers and defences, with animals burrowing, which makes flooding more likely and the resulting pollution would cause harm to wildlife. The incinerator is the wrong technology in the wrong place. In addition, there would be an adverse affect on existing AQMAs on which there has been a recent case on compliance with the Air Quality Directive. The ES shows no significant impact for a number of issues but local people have little confidence in these findings and fear flooding and pollution. Their views should be listened to.
947. Ms J Rust [OBJ90], Secretary of the King’s Lynn and District Trades Council. Her objection is based around the lack of democracy around NCC’s decision to go forward with EfW and its lack of compliance with the principles of Localism. Power has been given directly to local people and they should have an influence whether such facilities should be built. King’s Lynn people have rejected the proposal and the proposal should not be built in King’s Lynn or anywhere else in Norfolk. Mr P Johnson [OBJ93] objects to the proposal as it was brought about by a process which did not reflect local opinion, as expressed in the BC’s poll. Mr and Mrs J Smiter [OBJ96] have concerns about local democracy and the cost and the location of the proposal. They also highlight the potentials risks to health, as set out in the BSEM report and the risk to local people and employees as a result of fire and other hazards.
948. Mr D Dennis [OBJ124] questioned the way in which decisions on the incinerator were taken by NCC, which failed to take into account local opinion. The waste contract, with its penalty clauses, would have an adverse effect on local finances. King’s Lynn has a legacy of pollution from the fertiliser and gas works and flooding. Although improvements are being made, the proposal would be a setback for the area and would blight it, like the former works did. The EA’s monitoring might not be sufficient to ensure that hazardous emissions did not give rise to pollution and health risk. It would give rise to traffic problems, would inhibit recycling and, in time, could require waste to be imported from outside the area.
949. Mr P Espin [OBJ154] was formerly chair of the Wash Estuary Strategy Group. He introduced the Wash Estuary Management Plan and the Wash BAP to the inquiry.
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The first document sets out policies for the Wash, which relate to water quality, biodiversity, landscape, renewable energy and the relationship to planning policy/proposals. The BAP recognises the international importance of the Wash, its habitats and protected species. He draws attention to the importance of the Wash for harbour seals. Mr Espin is not convinced that the combined effects of emissions from present and planned development have been taken into account in the ES. The precautionary principle should apply in this case and an alternative location sought, so that the ecological value of the site can be preserved and the time and public money put into it wasted. Dr J Mulhallen [OBJ155] King’s Lynn and Wisbech StoptheWar. Her main concerns were the lack of democracy in the decisions taken, which she says is similar to those taken in the Iraq war. She also had concerns about the safety and technology of the proposed plant. She claimed that other areas, like Norwich, have rejected the incinerator and that people in King’s Lynn should have similar rights.
950. Mr R Morrish [OBJ163], a landscape architect, (on behalf of Leziate, Wiggenhall St Germans, Castle Acre, Flitcham, Old Hunstanton, East Winch, Swanton Morley, Magdalen, Grimston and Roydon PCs). Mr Morrish’s view is that the buildings would be large and widely visible across the flat landscape and, as perceptions of such buildings are negative, it would have an adverse effect on the perception of the King’s Lynn area. The area around the site is mixed, with recreation and other uses nearby, and not predominantly industrial. The ZVI is predominantly agricultural and residential and the buildings would be seen as a negative feature of the area, including from important transport routes into King’s Lynn. This would contrast with the welcome views of Ely cathedral across the Fens. Although CABE have no objections to the scheme, the main building would be utilitarian, with no redeeming features, and which it not possible to landscape adequately. The proposal is not necessary and other alternatives with less landscape impact should be sought.
951. Cllr G Watt [OBJ164] (presented by Mr M Knights). Cllr Watt highlights the benefits of MBT, which was the technology originally proposed to be used to treat Norfolk’s waste at Costessey but was subsequently replaced by the incinerator proposal. The current proposal would bring the potential for health risks, with bioaccumulation, and does not allow for the reduction, re-use and recycling of products and materials. Incineration is known to cause land and air pollution and would not reduce the amount of waste material. The IBA would not be inert as has been shown in the case of Byker, Newcastle-upon-Tyne. As the risks from such plants are still being discovered, the precautionary principle should be invoked and a cheaper and more sustainable solution, such as MBT, should be sought.
952. Mr M Knights [OBJ165]: although Mr Knights is Vice-Chair of KLWIN, he gave his own personal evidence, not linked to the KLWIN case. It was essentially a rebuttal of Mr Boldon’s evidence (C10). Firstly, Wheelabrator’s record, although not resulting in criminal convictions in the USA, have resulted in out-of-court settlements and civil penalties for pollution. As these were not classified as criminal convictions, they did not prevent the issuing of the EP which depended on disclosure by the applicant. However, it heightens fears of local people. Electricity would be supplied to a local connection, rather than the National Grid, as suggested by the applicants. This could mean that other locations for the facility would be feasible, as it does not depend on it being close to the power station or major infrastructure. In addition, a number of examples show that there was a
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predetermination on the choice of technology by NCC for EfW/CHP and more advanced waste treatment technology was ruled out at an early stage.
953. Public consultations as far back as 2008 show little public support for incineration and there were changes made to representation on the Planning Committee so that there was no representation for West Norfolk at the time of the vote on the planning application. The applicants have tried to play down the significance of the local referendum and no text was supplied to it. They had then instigated their own poll across Norfolk to try and achieve a different result. Some of the information given during public consultations had also been misleading, with several examples of this given on emissions and health matters. Finally, the applicants have painted an unduly pessimistic picture of alternative scenarios if the incinerator was not built.
954. Mr Kratz (on behalf of Ms A Philips [OBJ21], Mr H Greene and Ms E Oliver [OBJ19]) objected on the grounds that the application would be contrary to planning policy in terms of proximity, the waste hierarchy and prematurity. They also object to the approach to decision-making by NCC and their dismissal of the outcome of the BC referendum. They dispute the need for the facility in terms of waste arisings and are concerned that the application might be determined before the WSSA has been adopted. The site is at risk from flooding and the application should be assessed with the building as a permanent structure. The mitigation proposed is insufficient to make the application acceptable with flood risk, with an adverse effect on depth and velocity of flooding in the event of a breach and flooding of the turbine hall, roads and IBA area, with pollution consequences. They also have concerns about health impacts, based on the evidence of Professor Howard. These include: uncertainties about the modelling of toxic emissions; underestimation of the levels of PM2.5; and, inaccurate modelling of dioxin intake in the TDI approach to human health. This has given rise to fear of the development. They are also concerned about its visual impact across the open landscape, which would be negative and exacerbate their fears.
955. Mr P Knights [OBJ168] is a local farmer, who also spoke on behalf of his wife and had two main areas of objection. The first is to the traffic that would be generated which would cause queues on the A47, which already has problems with congestion if there is any incident. Secondly is the potential effect on agriculture, especially his blueberries, which would be sensitive to any increase in acidity. They are important in the local economy and also attract tourists from a wide area to stay at local hotels. The blueberries would also be in the fallout area for heavy metals and dust generally. As they cannot be washed without detriment to their appearance they would not appeal to supermarkets and other shops. Mrs Knights has concerns about the effect of emissions from the plant, not only in terms of crops on the farm but also on King’s Lynn where NO2 levels already exceed the EU limit. She also has concerns about the adequacy of monitoring the plant by the EA.
956. Nr N Linge [OBJ169] represented Brancaster PC, who object to the proposal. The villages are over 22 miles from the site, so the objection is not “in their backyard” and their view is that if other meetings (where both main parties’ cases were put to local residents) were held elsewhere then there would have been similar votes against the proposal. Mr de Whalley [OBJ170] presented the cases for Grimston, Congham and Roydon Residents’ Association, who object. The main concerns are further traffic on the A47 which is already congested and dangerous, with further major work required on it which will cause further delays. The views of NWT and
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KLWIN on the effects on Roydon Common are endorsed. The proposed development would have an adverse effect of the Scheduled Ancient Monument of the former mediaeval settlement at Bawsey, especially when viewed from Sandy Lane. It would be contrary to the landscape planning guidelines in the BC’s Landscape Character Assessment Final Report. If the proposal is allowed, then the potential for the sale of heat would attract further heavy industry to the detriment of the area. Finally there are concerns about the decision-making process by NCC, which has resulted in a waste solution which is unacceptable to most local people.
957. Mr P Moore [OBJ 171] chair, King’s Lynn and District Round Table objected on a number of grounds. Firstly, on fears about health. Although decision-makers have to assume that the plant will be properly regulated, the fear is that in reality, it will not be so. Other breaches have occurred elsewhere, eg Dundee, and there are concerns about Wheelabrator’s track record. As there is no pre-sorting in a MRF or any other adequate screening, harmful material could be burnt, along with potential recyclable material. Information on traffic generation has not been consistent, there would be congestion when events are on at the Norfolk Arena. There are problems on the A47 flyover and alternative routes are narrow and unsuitable. In addition, movement between the north and south sites would be a hazard to those using the spine road. A conveyor would reduce risk and have benefits like preventing pollution.
958. There are sites with better access arrangements and more sustainable processes that could be used for waste treatment, like MBT. He had also put forward a proposal for autoclave/AD treatment which were rejected. A number of smaller facilities across the County would be a better solution, which would be more acceptable, in accordance with good governance principles in Annex B of PPS10. The IBA would not be inert but contaminated with toxic residue. It should be properly contained in sealed enclosures and not left in open piles which could blow around and cause pollution and health risks. There is also controversy about whether it is a recycled material and whether it is sufficiently inert to be turned into a building material. The FRA is flawed in that it doesn’t take account of ditches between local rivers which feed floodwater into the site. He makes similar points to others on the consultation process and the local poll.
959. Downham and Villages in Transition [OBJ176]. Mr Alderson explained that the main concern of the Transition network was a concern about growing environmental and resource challenges, including peak oil. Oil-based packaging which would be burnt in the plant may disappear when it becomes more expensive and transport costs for waste and IBA products. Residues from the plant would also require fossil fuels to process them. All of these uses would contribute to climate change and would in time lead to a shortage of waste for the plant. In addition, the Network have concerns about the health risk from the plant. The Network would support Zero Waste policy, centres in which local reclamation could take place, recognition of the role of local communities in dealing with residual waste and an energy descent action plan.
960. Dr P Devulapalli [OBJ177] is a GP in King’s Lynn. Her main concern is the fear and anxiety surrounding the proposal related to health risk and well being. There is no need for the proposal and recycling rates could be increased. DEFRA has stopped handing out credits for incinerators. There are already 2 AQMAs in King’s Lynn and the plant and its traffic would exacerbate the health issues of respiratory problems in the area. PM2.5 and dioxins are of particular concern, with research
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showing a range of toxic effects. The BSEM report comes to similar conclusions. The HPA has not carried out studies to date on this matter, although a report is due out in April 2014, which should be awaited before a decision is made. The precautionary principle should be applied when there are proven risks from the process.
961. Mr P Gidney [OBJ179] had concerns over the effect of oil prices on the proposal, due to transport and packaging costs over the lifetime of the proposal. He thought that there were more sustainable options for waste management like increasing recycling and other waste treatment methods at smaller plants, which can heat such things as greenhouses. The contract is inflexible and cannot take account of such change. CHP is unlikely to materialise either from Palm Paper or NORA. The local community is not in favour of the plant and their views should be taken into account. The plant is not a sustainable option and a more flexible approach is required. Mr S Payne [OBJ180] objects to the location of the proposal on the grounds that it is distant from the main source of the waste and upwind of King’s Lynn. If each District were to deal with their own waste in projects like Material Works there would be no need for the proposal. The plant would spread pollution across the town, with the health risk from PM2.5s. Wheelabrator has a poor record in the USA on pollution. The health reports, like the one published by DEFRA in 2004, which claim the plants are safe, are flawed and should be rejected. In addition, there would be an adverse impact on NORA, house prices and other economic and tourist enterprises. There is no local mandate for the proposal, which would be costly to the public purse.
962. Mr M Fuller [OBJ181], Chair of Middleton PC [OBJ 50] and represented North Runcton Parishes Group, which includes North Runcton, Middleton, Gayton and West Winch (including Setchey, Tottenhill, North Wootton and Castle Rising). The PC objects to the lack of flexibility in the contract, which discourages recycling. The site is at risk of flooding and contact with the waste and its products could cause pollution. The issue of PMs and their impact on health has not been adequately addressed. The large amount of mains water to be supplied is not sustainable. The highway infrastructure is not adequate for the increased use.
963. Mr C Williams objects on the grounds of emissions from the plant which would give rise to GHG and risks to local ecology and human health from pollution of air, soil and water. Traffic generation, involving 120 mile round trips from Great Yarmouth, would be unsustainable and have an adverse impact on local roads, like the A47. There would also be an adverse visual impact which would deter tourists. There are alternative solutions, such as those used in Germany, which can recycle and reuse products for construction/ garden uses and employ more people than would this plant. Other European countries are turning away from this type of technology and there is already overcapacity in the system in this country. Local people voted against the plant and their views should be respected.
964. Ms A Cooke and 3 Yr10 students. The students had been involved in a project and had looked at a variety of waste treatment methods and the positives and negatives for them. There was a vote on incineration and 96% of students at their school did not agree with it. There is no need for the facility as there is very little that can’t be recycled or otherwise treated and the facility would disincentivise recycling. There is a need for a constant amount of waste for the facility and there is no guarantee that this would be available locally. There would be an adverse long-term and short-term effect on health as a result of pollution and from
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emissions from increased traffic. There was a consensus at the school that the incinerator should not be built, which was reflected in the local poll.
965. Mr D Pearce expressed concerns about the way in which the contract had been drawn up with a large penalty to be paid if the facility did not go ahead. His view was that, given public feeling expressed through the referendum, this should not be paid. Ms C Hunter thought that the approach to the debate should be empathetic, understanding that local people have a deep dislike of the proposal. There was a need to take into account human behaviour and its effects on future generations. Previously people had been sprayed with DDT as an insecticide before the harm of it was realised. In the past people like Rachel Carson had warned of the danger to the environment in her book, Silent Spring, but often damage is done before the harm to the environment is realised.
Written Representations
966. A substantial number of written representations were made at the planning application stage, with two consultation periods. NCC say that 8,375 response were received from 6,366 members of the public, of which 7,609 were objections, 644 statements of support and 122 comments. A number of written representations were also received as the result of the notification of the inquiry and some of those who submitted representations also appeared at the inquiry. The majority of these representators (181) objected to the proposal, whilst there were 9 statements of support and one neutral comment was received.
967. The objections covered a wide number of grounds, which included: failure to meet local, regional and national planning policy; public health and well-being; lack of energy efficiency; carbon footprint; that incineration is too low in the waste hierarchy; that the appeal site is not in sufficient proximity to waste sources; the impact of the incinerator on recycling; the future availability of waste to the plant; the availability of more advanced alternative technologies; lack of consideration of alternative sites; flood risk; pollution of the water environment; use of drinking water resources; the visual impact of the plant and its stack; the proximity of the incinerator to sensitive receptors; fear of risk to health from emissions; the effect on the historic environment; the effect on the natural environment; noise emissions and odour; the proposed method of waste transport and the associated costs; vehicle routing and highway safety; impact on tourism and regeneration; the alleged record of Wheelabrator in the USA; cumulative construction impact with Centrica B; the effect of the proposal on property prices; financial costs to local Council Tax payers; and, local democratic processes, Localism and the local poll.
968. The supporting representations included 2 letters from Norse, which is a wholly owned subsidiary of NCC. These letters indicated Norse’s views on the use of the Snetterton site (WAS19 of the WSSA) as landowners. They say that there would be insufficient space on the site to accommodate the proposal. These points have been commented on by the BC [K46]. Other supporters mention: the urgent need for the proposal to prevent further use of landfill; the creation of employment; the production of cheap electricity and the encouragement of industry; media bias against the proposal; and, the lack of evidence that the proposal would cause harm to human health.
969. One representation was received on a point of information [REP1]. Breckland Council confirmed that they did not wish to be a party to the Material Works
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contract at this time and takes no view in supporting or otherwise the BC’s contract with MWL.
Conditions and Obligations
Conditions
970. I have considered the suggested conditions in the light of the advice of Circular 11/95: The Use of Conditions in Planning Permissions. (Inspector’s Note: The Circular is about to be replaced and my observations will need to be considered by the SoS in that context, although my reasons and findings will be equally applicable in that context.) Conditions would be necessary requiring the commencement of the development writing 3 years and the prior notification of commencement and implementation to ensure control over the development. A condition would also be required that development would be in accordance with the approved plans, including mitigation measures, for the avoidance of doubt and in the interests of proper planning. The list of agreed plans is set out in Annex A to this report. A condition proposing the removal of permitted development rights has been suggested for the erection of buildings not shown on the submitted plans. This would be necessary as any new small buildings and fixed plant or machinery could have an adverse impact on the character and appearance of the area. A condition requiring a copy of the planning permission to be kept at the development would be necessary in order to ensure that the development and its operations were carried out in accordance with the permission.
971. A condition would be required to ensure that any contaminated land not previously identified would be properly remediated, in the interests of preventing water pollution, public safety and sustainable construction methods. Conditions requiring a scheme for surface and foul water disposal, surface water disposal (including contaminated water) during construction and the provision of an oil interceptor would be necessary in order to prevent water pollution. A condition requiring details of piling to be submitted and approved in writing would be necessary in the interests of sustainable construction, public safety and the prevention of water pollution. A condition would be necessary for an arboricultural method statement and other measures to protect trees on or adjacent to the site in order to protect the character and appearance of the area. For the same reason, conditions would be necessary requiring the details of a landscaping scheme and its implementation and management. A condition would also be necessary to require an ecological management plan in order to protect the area’s ecological assets.
972. Alternative methods of dealing with HGV routing were put forward by the applicants: either by S106 or condition. However, the success of HGV routing is often dependent on transport contracting arrangements and good communication with HGV drivers. Such arrangements are best made through a scheme to be agreed though a S106 agreement as has been offered here. Therefore this condition is not necessary. However, conditions would be necessary to ensure that routes would need to be signed on the site to guide vehicles, the access gradient would need to be limited and the access together with visibility splays, gates and parking /servicing and loading areas would need to be provided in accordance with the approved plans. These conditions would all be necessary in the interests of highway safety.
973. In addition, conditions would be necessary to ensure that a Construction Traffic
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Management Plan was approved and implemented, in the interests of highway safety. Whilst this condition includes a discretionary clause allowing for variation of traffic routes, such a variation might be necessary in the event of serious road incidents and roadworks. A Travel Plan for construction staff would be necessary in the interests of ensuring sustainable travel. A condition requiring the provision of wheel washing during construction would be required in the interests of highway safety. Hours of construction with the exception of slip form work which needs to be a 24-hour operation, deliveries for construction work and piling would need to be controlled by condition in order to protect the living conditions of nearby residents. A condition would be necessary requiring a construction method statement to be approved in the interests of sustainable construction, public safety and the protection of the water environment. A condition requiring a construction and decommissioning environmental management plan would be required for the same reasons.
974. A condition would be necessary requiring an operational travel plan in the interests of sustainable travel. The covering of loads is principally concerned with highway safety, to prevent items/dust coming off lorries. Various interested persons and KLWIN expressed concern that dust including IBA from movements within the North and South sites could be blown about, which would be a risk to health. The risk from the IBA dust is a disputed matter and discussed in the conclusions below. However, the EP requires sampling of the IBA material to assess its hazard status prior to commencement and dust management in the IBA Recycling Area are is the subject of a condition in this application and a general dust management scheme is the subject of a condition both in this application and the EP. APC residues would be moved in a sealed container as these are classified as hazardous waste but these are covered by the EP. It is common practice for waste either to be delivered in containers or sheeted lorries. The condition requires secure covering and as it would be subject to visual inspection, the condition would be enforceable.
975. A condition would be necessary to control delivery hours in order to protect the living conditions of surrounding residents. Although some local residents and KLWIN had concerns about the 7 day a week deliveries this is needed to support the 24 hr operation of the plant and avoid problems such as odour from stored waste. There would be a discrepancy between the hours permitted for Palm Paper but analysis of the highway capacity, as discussed above, shows no need for restrictions at peak hours. Conditions would be required for a noise control scheme to cover installations and machinery, noise monitoring, a scheme for dealing with complaints about noise and a noise management plan, in the interests of the living conditions of local residents. A condition would be necessary to ensure that a community representative was nominated in order to ensure that there would be local representation when dealing with noise complaints and management.
976. As already stated a condition would be necessary for dust monitoring of IBA, including PM10s, in the recycling area for a minimum period of 12 months would be necessary to protect the living conditions of local residents. A general condition for dust management on the site would be required to protect the living conditions of local residents and the local environment. At the inquiry NCC said that the results of any monitoring required by their suggested conditions would be put on their website for public inspection. Although there was discussion at the inquiry about whether live monitoring of emissions could be published on the internet, any such monitoring would relate to the emissions monitoring required by the EA in relation to the EP, rather than the planning application. At the inquiry the applicants www.planningportal.gov.uk/planninginspectorate Page 205 Report APP/X2600/V/12/2183389
confirmed that the contract requires the setting up of a community liaison group, which would also have a role in the publication of monitoring results. A condition would also be necessary to ensure that oils and other chemicals would be kept within bunded areas, in the interests of protecting the water environment.
977. In order to protect the character and appearance of the area, a condition would be required to ensure that samples of materials for external facing and fencing and surfacing treatment were submitted and approved. A condition requiring a scheme for aviation warning lights would be required in the interests of air safety. A condition requiring a scheme for external lighting would be necessary in the interests of air safety, the character and appearance of the area and ecology. A condition would be necessary limiting the overall capacity of the plant and prevention of the import of IBA would be necessary to ensure sustainable waste management.
978. A condition would be necessary to ensure that an electrical connection would be made to the electrical grid network, to allow for the export of renewable energy in the interests of sustainable energy supply. To promote the use of CHP from the facility conditions would be required to ensure that a feasibility report with an annual review had been prepared before the receipt of waste and that the necessary plant and pipework had been provided within the site to ensure sustainable development. In the interests of sustainable development, conditions requiring details and confirmation of the facility reaching a Very Good standard for BREEAM would be necessary. In order to control the uses on the site, a condition would be required ensuring that material would not be accepted, nor any retail sales made from the site. In order to protect the character and appearance of the area, a condition would be required requiring a scheme for the removal of development and the restoration of the land.
979. In order to ensure that there would be no increased flood risk, a condition would be required to ensure that mitigation measures were carried out in accordance with the ES. In addition, a condition would be necessary to ensure that an agreed flood warning and evacuation plan was in place prior to operations on site commencing, to protect those working on the site. Flood risk to the proposal is discussed below but as the conclusions are that the development is in a less vulnerable category in NPPF TG, it would be compatible with a FZ3a location. Therefore, a condition limiting the life of the proposal to 2090 would not be necessary. The need for a condition requiring a waste acceptance scheme was raised by some objectors. However, this would not be necessary since it is covered in the EP and Circular 11/95 states that planning conditions should not duplicate controls in other regulatory regimes.
980. KLWIN has asked for a number of conditions to be considered if the application is granted planning permission. Responses to those requests are set out by the applicants in C92a and commented on by KLWIN in W17. Firstly, they have asked for condition requiring an independent baseline survey of existing conditions downwind of the proposed facility. They say that the original survey was taken 100m upwind of the proposed stack and that baselines could be established for such places as Roydon Common (for ecology)and King’s Lynn town centre (for human health). NWT have made a similar comment in respect of Roydon Common. KLWIN are also critical of the screening out of certain pollutants, like cadmium, by using inappropriate, distant, comparators in the original survey.
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981. However, there have been no requests from either the BC, who already carry out air quality assessments including monitoring the AQMAs in King’s Lynn, that further such monitoring is needed. Some of the monitoring points for NO2 were downwind in any event. The EA made detailed comments in November 2011, some of which were critical of the applicants’ baseline study. Nevertheless their recommendations did not include any requirements to amend the baseline study. Therefore I consider that such a condition is not necessary.
982. KLWIN also suggest that a condition is imposed requiring an independent baseline study of local farm produce, soils and irrigation water for heavy metals and POPs. The study and subsequent monitoring would help to ensure that local farm produce would remain marketable, by allaying the fear of any potential human health impact of the proposal on local produce. However, the issue of heavy metals monitoring has already been commented on, with POPs being the responsibility of the EA under the EP regime. Since the primary concern of buyers of the produce is human health risk, they could be referred to the applicants’ existing health studies, which have been accepted by the EA.
983. The third suggested condition is that if there were to a breach of emissions limits that the applicants’ be required to test for POPs and heavy metals for 12 months and beyond if the results show an increase. Any breach of the emissions limit would be a matter for the EA to investigate and they have the power to impose improvement conditions to the EP, as required. The suggested condition would duplicate these powers which the Circular seeks to avoid and would also be unnecessary.
984. KLWIN also suggest that waste delivery times should be amended to avoid peak hours and Bank Holidays. A similar condition was imposed on deliveries to the adjacent Palm Paper plant but has not been required in this case and there is no information on why this was the case. The transport assessment for the proposal shows that there is sufficient capacity on the local highways at such times and the highways authority has not suggested such a condition in this case. Therefore it would be unnecessary.
985. A condition gas been requested by KLWIN that the area for the storage of weathered IBA should be bunded to protect the local environment in the event of flooding. Removable flood barriers would already be available for the IBA building but the weathered product would be stored outdoors. Despite KLWIN’s concerns the weathered product is not classified as a hazardous product and it was stated at the inquiry that any material in floodwater would be deposited quickly and therefore would be unlikely to pose any significant threat to local watercourses. Therefore such a condition would be unnecessary.
986. Finally KLWIN, Ms Franklin [OBJ29] and others have sought for a condition requiring Amesa monitoring of dioxins and furans more regularly than the proposed periodic monitoring set out in Schedule 3 of the EP. The EA have already considered such a request and rejected the need for it in the EP decision document [E2, pp72 & 99]. Such conditions are more appropriately applied through the EP process and the Circular states that there should not be duplication between the two regulatory systems.
987. Mr Elliott [OBJ32], a local resident, suggests that NCC reduce the C&I tonnage by at least 10% before the facility is built and by 5% per annum for the next 10 years, which would half the total C&I waste and ensure reuse /recycling. However, www.planningportal.gov.uk/planninginspectorate Page 207 Report APP/X2600/V/12/2183389
although recycling targets have been extended to C&I waste, they are targets and could not be enforced by any condition.
988. Some of the suggested conditions have been amended in the interests of clarity and precision.
S106 agreement
989. A signed S106 agreement between the applicants, NCC and the BC was submitted at the inquiry [C8b]. The applicants dispute that the agreement complies with the CIL Regulations. The first planning obligation requires a payment by the applicants towards off-site air quality monitoring in accordance with an NO2 monitoring scheme agreed between the BC and the applicants. This monitoring would be necessary and reasonable in the interests of monitoring the effects of the development on human health. KLWIN has requested that the monitoring should start from the commencement of works on site. However, the monitoring is intended to check the NO2 baseline, which relates to emissions from the stack rather than construction issues.
990. The second obligation relates to HGV routing, which would need to be via the Saddlebow interchange, as shown on Plan A of the S106, in accordance with a scheme to be agreed between the applicants and NCC. This would be necessary in the interests of highway safety. KLWIN say that improvements are needed to the interchange which should be paid for by the applicants. However, the Highway Authority have not required any improvements to the interchange nor any contributions to highways improvements.
991. The provisions of the S106 would be necessary, directly related and fairly and reasonably related in scale and kind to the proposal. Therefore, it would comply with Community Infrastructure Regulation 122 and can be taken into account in the decision.
Inspector’s conclusions
Introduction
992. From the previous submissions and representations, the main planning considerations in this case are: a) whether the proposed development would be consistent with national and local waste and energy planning policies and its relationship to wider sustainability objectives; b) the impact of the proposal on flood risk and water quality; c) the weight to be given to any alternative sites or technologies; d) the impact of the proposal on air quality, having regard to paras 26-29 of PPS10; e) the impact of the proposal on ecology; f) the impact of the proposal on health, in the context of paras 26-31 of PPS10, and the perception of harm; g) Localism and the local poll; h) whether the proposal would be premature, in advance of the adoption of the WSSA; i) local financial considerations; j) the adequacy of the ES; and, k) the planning balance and conclusions in terms of national and local planning policy.
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In the following paragraphs the figures in brackets (n) at the end of the paragraph refer to the earlier paragraphs of my report on which I have based my conclusions.
The development plan and other policies
993. The relevant policies of the development plan for the area and other relevant policy have already been reviewed above. The examination of the WSSA was undertaken during the period of the inquiry and the Inspector’s Report was made public on 23 August 2013. As the WSSA has been through the public examination and the Report issued, it has significant weight but not full weight. KLWIN have drawn attention to applications for the SoS to issue Directions on the DPD, under Ss 21(1)(a) or 21(4) of the Planning and Compulsory Purchase Act 2004. However, at the time of writing there had been no decision on this matter. Conclusions will be drawn on relevant development plan and other policies within the sections below. (21-30, 39-44, 51-58, 60-61, 72-102, 107-121, 228-232, 385-399, 579-582, 637- 651, 676-678, 742-752, 823, 913)
994. KLWIN believes that NPSs EN-1 and EN-3 should not be used when considering this case, since the facility would not be large enough to be considered an NSIP under S22 of the 2008 Planning Act and would not contribute significantly to electricity generation. The relevance of these documents to smaller projects is made clear in both EN-1 itself and the NPPF, although the letter to Chief Planning Officers (2009) requires their relevance to be assessed on a case-by-case basis. The recent appeal at Shrewsbury for a much smaller plant of about 90,000 tpa noted that there were no particular local circumstances which would suggest that the NPSs were not a material consideration and they have been used in many other cases elsewhere. I do not consider that there is anything before this inquiry which would lead me to a different conclusion from that of the Inspector in the Shrewsbury case. (307-309, 407, 854-855, 867)
Waste and energy issues
Policy matters
995. As a background, national policy initiatives are seeking changes in the way that waste is managed. The Landfill Directive places an obligation on this country to divert waste away from landfill and move it further up the waste hierarchy. At national level this obligation has been set out in waste policy through WS2007 and PPS10 and regulated through WR2011. These require the diversion of waste away from landfill, which as a disposal operation is at the bottom of the hierarchy, to other forms of management further up the hierarchy, such as recycling and re-use. They also require that, when practicable, energy from residual waste should be recovered. Although Norfolk has sufficient non-hazardous landfill space until the end of the MWCS plan period, the driver both in this case and nationally, is the need to move waste up the hierarchy.
996. The rWFD (and WS2007) set targets for the diversion of waste away from landfill. WS2007 includes minimum recycling/composting rates for household waste rising from 45% in 2015 to 50% in 2020. The WMCS expects Norfolk’s rate to reach 50% in 2018/19. No such targets are set for C&I but it is expected that the amount of C&I waste being landfilled in 2010 will fall by 20% compared to 2004. Landfill tax has been imposed to encourage the movement of waste away from landfill and up
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the hierarchy and is expected to rise until 2014. Thereafter the tax rate is not known but it is likely that it will continue to rise. (22, 29-30, 41-43)
997. Paragraph 22 in PPS10 states that, where there is an up-to-date development plan, there is no requirement to show a quantitative or market need for a proposal. In this case the MWCS was adopted in September 2011 and was noted in its Inspector’s Report as being based on waste forecasts that were robust and credible. Therefore as a development plan it should be considered as up to date. Policy CS3 of the MWCS sets out the general waste capacity to be provided and Policy CS4 states the maximum requirement for new waste capacity of 703,000t of recovery infrastructure in the County by 2026, of which 370,000t of recovery (residual treatment) is needed by 2015, with a further 333,000 recovery (residual treatment) needed by 2020. (29, 406)
998. The BC says that policy CS4 overestimates the capacity required, since the 703,000t figure (derived from the estimate of 702, 484t figure for 2015/16 in Table A2) represents the peak of recovery capacity required. Thereafter the forecast falls to 640,058t in 2019/20 and 546,117t in 2026/27. The BC produces its own calculations of waste arisings which are reported on below in the context of the waste contract. Whilst the applicants and NCC have submitted evidence on the need for the facility, this is largely to counter the alternative figures put forward by the BC. As it is a recently adopted plan, within a plan–led system, the MWCS remains the authoritative document for planning purposes. (22, 389, 408-411)
999. National policy, both in the Energy White Paper and NPS EN-1 (para 3.1.3), record the importance that Government attaches to new generating capacity and the urgent need for that new capacity. EN-1 (para 3.1.4) goes on to say that substantial weight should be given to the contribution which projects would make to capacity and (para 3.4.5) that the Government is committed to an urgent increase in renewable energy, which includes EfW. EN-3 (paras 2.5.1-2) sees the combustion of waste as playing an increasingly important role in meeting the UK’s energy needs. WS2007 (at Chapter 5, para 18) also sets EfW within the context of energy policy, encouraging maximum use of waste that cannot be recycled. (30, 40, 55-56)
1000. NPSs EN-1 and EN-3 both state that energy-related development should be assessed on the basis that the need for it has already been established. This is also reflected in the NPPF at paragraph 98. There have already been significant delays in delivering a residual waste management facility in Norfolk. In order to comply with the timescale in policy CS4 of the MWCS, that need is urgent and there are no other projects of the scale required that are so advanced. Although the BC says that PFI might be available to support any new project, that outcome would not be certain and would add further delay to the urgent need for a residual waste management facility. Delays would be contrary the second Key Planning Objective in PPS10, which requires the timely provision of waste management facilities to meet the needs of communities. (28-30)
R1 Status
1001. The original application for the permit did not request any provisional R1 certification, but subsequently it was applied for, granted and was submitted towards the end of the inquiry. The original permit was issued with the facility
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shown as a disposal operation but following the issue of the provisional certificate, the EA have said that it will be shown as a recovery facility on the permit.
1002. A full R1 certificate can only be issued based on operational data at commissioning and operational stages and the issue of the provisional certificate was based on design data. The applicants have provided 2 R1 calculations, one in respect of further information for the planning application and another one for the inquiry, with the plant in electricity-only mode, which both show a result in excess of the 0.65 efficiency figure required in the rWFD.
1003. KLWIN has not withdrawn their objection on the basis that the facility would be a disposal, rather than a recovery, plant and as such would fail to move waste up the hierarchy. They also say that the MWCS only makes provision for landfill for disposal and as this would be a disposal facility, there would be no provision for it in the MWCS. Nevertheless, the fact that the EA has issued a provisional certificate, which endorses the previous calculations that the plant is capable of achieving R1 status has significant weight. (869)
The waste contract
1004. A redacted version of the contract was submitted as a core document to the inquiry. Both the BC and KLWIN (and many local residents) object to the fact that a full copy of the contract was not submitted to the inquiry and KLWIN go further in submissions, suggesting that no weight should be attached to submissions based on the redacted contract, which KLWIN say was the case with the Rufford appeal. The exact reference to that part of the Rufford case has not been given, but part of the case of those opposing the plant was that there would be a financial disincentive to move waste up the hierarchy. However, in that case the redacted contract did not prevent the SoS reaching a different conclusion from that of the objectors. (661)
1005. In order for the BC’s case that the contract would inhibit increased recycling and prevent waste from moving up the hierarchy to be supportable, a number of assumptions would need to be borne out. All parties agree that the operators of the plant would be likely to be the applicants and that they would run the plant according to the waste contract. The second requirement would be that the there would be insufficient residual waste to supply the 170,000tpa of MSW required to comply with the contract, given that there is no facility in the current contract to allow for any revision downwards of the minimum tonnage if waste arisings fall. (154, 599)
1006. The contract sets 170,000 tpa as the minimum tonnage which NCC will deliver at a unitary charge, which has not been disclosed. If there were to be a shortfall, there would not be a financial penalty but the operator can seek additional suitable residual C&I waste (substitute waste and/or top-up waste), which the BC say would be likely to be set at a rate which allowed sufficient waste material to be attracted to keep the plant running at an optimum level, both for the burning of waste and the export of electricity. As they do not have the information on the unitary charge the BC have assumed it would be £110 per tonne. Although the applicants say that this would be lower than this amount. In any event, the contract allows the WDA control over the price of substitute waste, such that it would not incentivise the use of recycled material, like that from HWRCs, to be used as fuel in the facility. As such, there is some measure of flexibility in the contract. (149-152, 162-164, 599)
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1007. The BC and KLWIN’s position is that the falling rates of waste arisings in Norfolk are not reflected in the MWCS, since it is based on outdated data. The figures in the MWCS for MSW are based on 2009/10 data and C&I on 2006/7 data. The forecasts at Table A.1 show an increase in MSW, based on household growth, but declining rates of C&I waste and a reducing need for landfill space for London waste. Due to the date of the data, they do not reflect the full impact of the recession that has taken place and other changes in waste management both nationally and within the County. Nevertheless, the MWCS remains the most comprehensive local data source available. In any event, paragraph 10 of PPS10 warns against spurious precision in such forecasts and in this case, it is the direction and scale of the trends of waste arisings which is at issue, rather than the precise figures. (156, 159, 676, 866)
1008. The most recent national forecasts from DEFRA are to 2020 and they are accepted by all parties as the most robust national predictions for MSW and C&I waste. They include a risk based approach and consideration of the economic recession and any potential upward shock following it. Therefore the forecasts have great weight insofar as they relate to national waste arisings. The BC has applied these national forecasts to local waste arisings in document K15, which shows 474,757t of residual MSW and C&I waste in 2020. The applicants have carried out their own forecasts using 2 scenarios. These show 506,083t in 2020/21 for Scenario A which incorporates declining C&I waste levels, which the applicants say is unrealistic, since there will be an increase after the recession and that Scenario B, at 530,133t, is more likely. A comparison at 2020 is included at Table 3 of K15. However, the BC’s figures take no account of local matters such as higher household growth rates in Norfolk compared to national rates. Whilst there is no straightforward relationship between MSW growth and household growth, it is likely that there will be some influence on waste arisings. There have also been increasing MSW arisings over the last three quarters but it is too soon to establish a trend from these data and to know whether small improvements in economic activity are starting to bring arisings rates in Norfolk closer to the MWCS forecasts. If and when economic growth returns to pre-recession levels, it might well be that there will be growth in arisings but this is unlikely to be at previous levels due to national measures like waste minimisation. (159, 163, 671-74, 679-682)
1009. The BC, KLWIN and other objectors have said that there is scope for recycling rates to rise further than the rises already built into the MWCS figures, which is expected to increase to 50% for MSW by 2018/19 onwards, in accordance with the rWFD and WS2007 targets for 2020. There are low recycling rates in some of the districts for example Great Yarmouth, which has a rate of about 27%, and, as KLWIN say, there is further scope to increase recycling. Some initiatives, like the Norfolk Dry Recyclates scheme will boost recycling rates but it is a disputed matter as to whether some of this scheme is already taken into account in the recycling figures in the MWCS and whether glass would be included in it. It was acknowledged by the applicants that C&I waste will have higher recycling rates, as also noted by DEFRA, for which there are already higher targets in the MWCS. (159, 170, 602, 911)
1010. Further uncertainty exists around the amount of waste that might be rejected as unsuitable feedstock for the plant. The BC says this might be as high as 5%, as mentioned in the additional information in the ES. The WDA say that this information relates to all feedstock, rather than just MSW for which the contract, although not disclosing the actual permitted rejection rate, sets a much lower rate. www.planningportal.gov.uk/planninginspectorate Page 212 Report APP/X2600/V/12/2183389
At the inquiry Mr Boldon confirmed that it was likely to be one-off items, such as mattresses, that were rejected from MSW, with the C&I waste likely to be more variable in composition. Whilst this is based on his experience at Belvedere, which is a rather different operation, there is normally little excluded from MSW. (158, 686-692),
1011. In any event, the main concern is whether there would be sufficient waste to comply with the need for 170,000 tpa to meet the waste contract. Even if all of the of the BC’s figures were correct, they would still be reliant on the Material Works Ltd (MWL) contract for recycling to bring the figure below the amount required in the contract. Government policy in EN-1 and EN-3, endorsed by the SoS on appeal (for example at Lostock) considers only existing operational capacity when examining uncertainties over capacity. In the case of MWL, the contract entered into has a number of “call-off” conditions still to be met. Uncertainties about the project include: the lack of a demonstration plant installed and operated in Norfolk (only a 400 litre Saltus system has been operated and not the 1,000 litre plant required); end of waste certification had not been achieved (this matter is yet to be determined by the EA); no site has been chosen, purchased or had planning permission granted; no EP has been granted; and, although Mr Billson of MWL was able to rebut queries about the financial situation of his previous companies, there remain uncertainties about the funding of this project. (158-159, 603-604, 693)
1012. There is no dispute that such processes can be technically feasible. However, there are significant difficulties to be overcome before the MWL technology can be shown to be operational at the scale required by the BC and as an effective alternative for the recycling of MSW which would otherwise be available to go to the proposed facility. Although Breckland Council might have shown an interest in the Material Works scheme, their representation to the inquiry states that they are not entering into a contract at this time and therefore at least 24,022tpa expressed in the BC closings is not currently likely to be available. There are many uncertainties which influence the availability of MSW over the projected life of the facility but, particularly given issues with the development and implementation of alternative technologies such as MWL, it seems likely that the contract waste level would be achieved. In any event, the contract allows for substitute/ top-up C&I waste to make up any shortfall. (156, 158-159, 604, 694-724),
1013. It is not disputed by the BC that there would be more than sufficient C&I waste arising in Norfolk (and elsewhere that is currently being landfilled) over the period to 2020 to meet that need and the contract also allows substitute/ top up waste to be brought in from surrounding counties. However, C&I waste is footloose and price (gate fee plus transport) sensitive. There are competing facilities in Peterborough, which has a large proposed plant. Despite having a catchment condition that would still allow much of Norfolk’s waste to be treated there. There is also a smaller EfW plant in Suffolk and a large MRF near Cambridge, although this was not being used at the time of the inquiry. There is also the suggestion that falling gate prices due to competition, including from landfill, would lead to prices lower than the unitary charge and that there would be problems in attracting sufficient C&I waste. (161, 607, 609, 725-26)
1014. Using their estimate of the unitary charge, the BC has used national median average gate fees, which together with landfill tax, makes up the charge for landfill. The national gate fees are similar for 2010 to 2012, although landfill tax will rise at least until 2014, and be likely to continue to rise beyond that. However, there are
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no data on how representative the national gate fees are for Norfolk and therefore the BC’s view that C&I waste would continue to be landfilled is not substantiated for the local situation. As such, it would effectively continue to attract waste away from landfill. Although there can be no certainty about the economics of the proposed facility continuing to attract significant quantities of C&I waste, in the light of the amounts of C&I waste available, it is likely that there would be sufficient to run the plant during the period of the contract. (163, 167)
1015. The BC also suggests that the east coast location could lead to the export of waste to mainland Europe. This would require prior treatment, to RDF, for example, and it was confirmed at the inquiry that there is now a small plant for such treatment at Costessey. Although there were submissions that plants at Amsterdam and elsewhere had capacity and subsequently that NCC were preparing contingency plans for such an eventuality, the Guide to the Debate cautions against such exports since they are seen as resource losses to this country. (44, 728, 866)
Waste Hierarchy
1016. The MWCS policies do not directly address the waste hierarchy but depend on a number of them to ensure that waste is moved up through it. The latest annual monitoring report for Norfolk for 2011/12 shows that 433 kt of waste was landfilled, with over 53% (206kt) of MSW being landfilled. This is much higher than the national average for MSW landfill, which is about 37%. With no other large-scale treatment for residual waste, large quantities of waste are currently failing to be moved up the waste hierarchy at present. If the facility were not to be provided, it is likely that potentially recoverable materials would continue to be landfilled, contrary to the hierarchy, for at least some years before another facility could be designed, granted planning permission, permitted and constructed. In addition, a further procurement process might have to take place. (43, 660)
1017. The proposal does not include a front-end MRF and the BC say that the lack of an integrated waste contract would not encourage recycling, in contrast to the contract at Shrewsbury which had a MRF and financial incentives to encourage recycling above target levels. Concerns were raised, particularly by interested parties, that waste which should have been recycled would end up at the facility, undermining movement up the waste hierarchy. Since a provisional R1 certificate has now been issued, there is no longer an onus on the applicants to demonstrate that the facility would not undermine waste planning strategy through prejudicing movement up the waste hierarchy, as set out in paragraph 25 of PPS10. Nevertheless a number of detailed submissions on the effect on the waste hierarchy were made to the inquiry, although most of these were prior to the issuing of the provisional R1 certificate. (50, 669)
1018. KLWIN is critical of NCC’s record on recycling, suggesting that much higher rates of around 67% for MSW could be achieved. In Norfolk’s case there would need to be significant changes to waste collection, for example, for green waste, as well as further processing facilities. However, the regulatory requirements, in particular the implementation of Regulations 12 and 35 of WR2011, serve to maximise recycling rates, subject to practical and financial considerations. There is nothing to prevent WCAs from withholding waste for recycling initiatives and information from elsewhere in Europe, where there are higher rates of recycling, shows that higher rates of recycling and EfW can co-exist. Government policy in terms of WS2007 and in the Guide to the Debate says that EfW does not conflict with high rates of
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recycling but allows even higher rates of diversion from landfill. In this case there are further controls through a condition on the permit, which requires a waste acceptance scheme to be agreed, and also a further condition which prevents separately collected items for recycling being accepted at the facility. This would be likely to prevent materials, say from HWRCs (a point made by the BC), being accepted at the facility, even if an exception under Regulation 12 were to be appropriate. (163-164, 169)
1019. The suggestion by KLWIN that the plant would be oversized and that material that could have been recycled would be drawn in, is not supported by my conclusions on waste arisings.
Proximity principle
1020. Article 16 of the rWFD sets out the principles of self-sufficiency and proximity. It envisages a network of facilities and that waste will be disposed of (and recovered (for mixed municipal wastes) following Regulation 18 of the WR2011 at one of the nearest appropriate installations (NAIs). The element of self-sufficiency is one that is applied at member state level, rather than any level below that of any WPA. Therefore, it cannot be used in the manner suggested by the BC, that a waste management facility of only 105kt is warranted at King’s Lynn. The element of proximity has also been subject to change from previous versions of guidance, for example PPG10, to reflect the updated formulation in the rWFD. (124-127, 144, 588-89)
1021. Whilst the MWCS policy CS5 mentions the proximity principle, this is within the context of the management and disposal of waste being concentrated in the County’s larger settlements. The network of facilities is largely a matter for the market to bring forward. The BC’s argument is mainly about the distance of the proposal from the main sources of waste arisings. The Guide to the Debate in paras 151-152 sets out the most recent guidance on the interpretation of this principle and cautions against a narrow interpretation of NAI which might be unnecessarily restrictive. Many of these arguments have been rehearsed previously during both the examination of the MWCS and the WSSA by the BC and others. Policy CS5 requires waste facilities to be well-related to the four main settlements in the County but does not require a facility at each nor are there any restrictions in terms of the size of the facility being related to the size of the settlement. (131- 133,589-90, 639-641, 738, 742-752)
1022. The BC’s view is that, to comply with the proximity principle, the distance over which the waste is transported should be minimised (normally within each waste planning authority area). However, the requirement in the rWFD is that waste for recovery should go to one of the nearest appropriate installations. The draft WSSA has set out the spatial distribution of waste management sites over the plan period. Although the facility would probably be one of the largest facilities to be provided, it would form a part of the network of facilities, as envisaged in Article 16 of the rWFD, for Norfolk as further facilities are required in policy CS4 after 2015. (127- 128, 591-592)
1023. The applicants and NCC have used the WRATE assessment to illustrate that the distance in road miles travelled would not necessarily equate to significant adverse effects in terms of GHG and therefore climate change. The applicants’ calculation of the carbon footprint shows that any delay of more than 20 days in operations would negate any adverse impact of locating the development elsewhere. In www.planningportal.gov.uk/planninginspectorate Page 215 Report APP/X2600/V/12/2183389
addition, if the proposal were not built then the only alternative at present is continued landfilling, contrary to the waste hierarchy, or unsustainably exporting the waste. Furthermore, the key planning objectives of PPS10 and the strategy of the MWCS already outlined above would not be achieved. (142-143, 591)
CHP
1024. NPS EN-1 (para 4.6.8) encourages applications incorporating CHP, although the Guide to the Debate has noted that, although many EfW facilities are built as CHP- ready, many fail to attract customers for heat/power. Policy CS8 of the MWCS requires residual waste treatment facilities to provide for the recovery of energy and, where practicable heat, and encourages the use of CHP. (59-60)
1025. The site is close to potential CHP users and there is also an adjacent electricity connection point, which would supply the equivalent of 36,000 homes, in the applicants’ estimate.
1026. The site is close to a large paper mill, Palm Paper, which is one of the largest heat/power users in Norfolk. The BC, KLWIN and a number of other objectors have submitted material to the inquiry, which they say supports their view that there is no firm prospect of Palm Paper using CHP from the proposal. The letters submitted show that the firm is considering whether to seek a supply independent of the National Grid, which currently supplies heat/power to the plant. However, as indicated in one of his letters, Dr Palm wished to remain neutral in such a locally- contentious development and has kept 4 options open: continue to receive power from the National Grid; acquire steam/power from this proposal; acquire steam/power from Centrica B; or, acquire power from Palm’s own proposed CCGT CHP plant. Whilst there are no negotiations with the applicants going on at present, neither has any firm decision been made by Palm to pursue any of the other options to the exclusion of others. A DCO application is being worked on for the CCGT plant but it has not been submitted or accepted at the time of writing. (62-64, 420-423, 836-837)
1027. It is acknowledged that the proposed EfW facility would not meet all of the energy needs of Palm Paper, as set out in the scoping requirement for their CCGT plant. However, it could provide a significant proportion of them, reducing the reliance on energy from other sources. At this early stage with the proposal, with no planning permission as yet granted, it would be unusual for negotiations or any commitments to be made about CHP. In a number of other appeals, including Shrewsbury which was for a smaller facility, Inspectors have concluded that no adverse inference should be drawn about the lack of interest prior to planning permission being obtained. In this case, as with the Shrewsbury proposal, suitably- worded conditions would ensure that the facility would be CHP-enabled and that all reasonable steps would be made to facilitate delivery of CHP. (61, 65, 426, 839)
1028. Although Palm Paper would be the best opportunity for CHP, there could be others nearby. The BC’s emerging site allocations DPD has housing and employment sites adjacent to the proposal and the large NORA scheme lies to the north of the application site. Representations were made that it would be difficult to retrofit a district heating scheme but many areas of NORA have still to be developed fully. Linkages to the Centrica B power station, if built, could also provide greater amounts of steam. Therefore the location is such that there would be other alternative users for the CHP and, although Palm Paper provides an excellent opportunity, it would not be the sole chance for CHP use. There are conditions to www.planningportal.gov.uk/planninginspectorate Page 216 Report APP/X2600/V/12/2183389
the EP to keep CHP under review and suggested planning conditions which ensure that reasonable steps are taken to facilitate CHP connection and delivery of a scheme. The potential for CHP would be kept under review and EN-1, paragraph 4.6.8, says that substantial additional positive weight should be given to applications incorporating CHP. (66-69, 427, 840)
Carbon footprint/renewable energy
1029. NPSs EN-1 (paragraph 5.2.2) and EN-3 (paragraph 2.5.8) both state that there is no need to assess individual applications in terms of carbon emissions against carbon budgets. As such there is no need to assess the carbon emission of each proposal for which planning permission is sought. As well as assessing carbon emissions, KLWIN also initially found conflicts with MWCS CS13 and also the NPPF, paragraphs 93-98. Policy CS13 requires all new waste developments to incorporate the generation of renewable energy. In this case the project would itself be a renewable energy generation project and therefore this policy does not apply. In terms of the NPPF, KLWIN’s view is that the support offered is to projects which are both renewable energy and low carbon. However, paragraph 93 of the NPPF re-iterates other national advice that individual planning applications need not show that they have reduced GHG emissions. It also does not require projects to show that they both generate renewable energy and are low carbon. (274-275, 575-582, 648, 850-851)
1030. The Energy White paper states that the biodegradable fraction of waste is a renewable resource, which can vary with the content of the fuel. However, NPS EN-3 includes EfW as renewable energy infrastructure. In addition, national energy and waste guidance, for example the Guide to the Debate and the Energy White Paper all refer to EfW as being low carbon. Therefore EfW is described in national planning and energy policy as being both renewable energy and low carbon. Government guidance is technology neutral but looks to there being a range of renewable energy infrastructure. The NPPF actively looks for development to be planned in ways and locations which reduce GHG but is not specific about how this should be achieved and recommends that projects should be approved if their effects can be made acceptable. Although disputed at the inquiry by KLWIN, the amount of energy produced, while small, is of value to overall generation needs and the Energy White paper is supportive of locally distributed power, which can also be dispatched elsewhere. In addition, EfW would add to a more diversified energy supply, be more dependable than intermittent flows from other renewables, like wind. (30, 274-275, 280, 851-852, 911)
1031. The contribution of the proposal to global warming has already been the subject of examination by the EA in considering the permit application. The permit decision document notes that the level of CO2 emitted would not be insignificant: a point made by objectors, including KLWIN. Nevertheless, the document goes on to say that in terms of the BAT options appraisal, including global warming potential, the chosen technology is BAT for the installation. (277, 859, 911)
1032. A number of carbon assessments of the proposal have been made. Two assessments were made by the applicants, through RPS (carbon assessment) and ERM (WRATE analysis) and one by KLWIN. They compare emissions from the facility in electricity-only mode with CO2 emissions from other waste technologies, including landfill disposal. However, in CHP mode, KLWIN’s analysis shows that the facility would have lower carbon emissions than landfill. KLWIN say this should be
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discounted as there is no certainty that the facility would ever operate in CHP mode. This argument has already been discussed above, together with the weight to be given to CHP-ready installations. (283-288)
1033. There is a number of areas of dispute between the applicants/NCC and KLWIN on the respective carbon assessments. These include: electricity mix; methane recovery from landfill; metals recovery rates from the IBA; and, waste composition. There are uncertainties with the assumptions on all of these matters. Electricity mix is important since electricity from the facility would help to avoid electricity being generated in other ways, particularly fossil fuels and would help to even out demand. CCGT would be the default. The more recent WRATE assessment by the applicants relates to 2015, whereas the assessment by KLWIN looks at periods up and beyond 2035, when, even if Government policy is followed, there will still be uncertainties as to the detailed make-up of the mix. Nevertheless, growth in EfW remains an important element of it. (289-295, 583-4, 869)
1034. In terms of methane recovery rates from landfill, different rates had been used, with KLWIN using 75%, together with ERM, but RPS used 50%. Two of four points raised by NCC were agreed as being omissions in KLWIN’s analysis. In addition, a calculation error which was of little relevance, an incorrect assumption and an assumption about the amount of methane in landfill gas also raised uncertainties with their analysis. When the changes to the assumptions on these matters were applied to KLWIN’s analysis, as suggested by NCC, there was a small advantage for the facility when compared with landfill, in terms of CO2 . (300-363, 585, 861-2)
1035. A rate for metals recycling had been submitted with the EP application , used by KLWIN, but a higher rate was used by the applicants who claimed that a higher rate was likely since the operators would be incentivised by the value of the recyclable metals. Nevertheless, these rates are still within the range found in practice, although at its upper levels. Finally, waste mix is variable over time and any such changes are difficult to predict but the applicants’ view is that the biogenic content would be unlikely to fall below 50%. In any event, the provisional R1 certificate indicates that the facility is likely to be efficient in producing energy, especially in CHP mode and the recovery of the waste is preferable to landfill, in terms of the waste hierarchy. (296-299, 304-306)
1036. All of the modelling is underlain by assumptions and there are uncertainties with all such matters. Whilst comparison with landfill disposal in the assessment has been criticised, diversion of waste away from landfill remains a national policy objective in WS2007 and WPR2011 and there is still a national excess of waste needing to be landfilled even after recycling has taken place. The potential energy which would be generated by the plant, in terms of its amount and nature, would be a significant advantage in its favour and should be accorded substantial weight in terms of the need for the facility and its energy contribution. (307-309, 586, 864-865)
Conclusions on energy and waste
1037. Therefore I conclude that the proposed development would be consistent with national and local waste and energy planning policies and relate favourably to wider sustainability objectives in terms of waste and energy. Therefore it would comply with policies CS3, CS4, CS5, CS8 of the MWCS, para 98 of the NPPF, and the key planning objectives of PPS10.
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Flood risk/ water issues
1038. The site is currently in Category 1 in the BC’s Strategic Flood Risk Assessment (SFRA), which is the same as Flood Zone 1 (FZ1) in the NPPF TG. With climate change the risk will increase to the site and Policy DM4 of the MWCS requires the District Council’s SFRAs to be used to inform planning decisions. The NPPF takes a similar approach in paragraph 101. The BC has a protocol with the EA which also confirms that the SFRA should be used rather than the EA’s Flood Zone maps. The BC’s SFRA estimates levels of flood risk, taking account of flood defences. In addition, the protocol requires that Tidal River Hazard Mapping (TRHM) is to be used to supplement information from the SFRA. Whilst the BC’s flooding witness, Mr Robinson, has concerns about the compatibility of the various Norfolk Districts’ SFRAs, for example in the WSSA site selection process, that is different from the process here and there is no reason to depart from national and local planning policy in the consideration of the flood risk to this site. (178-180, 187, 213, 448- 450, 762-772)
1039. The main area of contention at the inquiry was the consideration of the FZ in which the site would lie in 2115, taking account of climate change. The EA, NCC and the BC all agreed that it would lie in FZ3 in 2115 which should form the basis of the assessment of risk and which would then require a sequential test (ST). KLWIN do not accept the applicants’ and NCC’s views on flooding, but have submitted no evidence on this point, due to their limited resources. The need for a ST was accepted by NCC in their consideration of the application, and they then carried it out. The ST was accepted by the EA who withdrew their objection to the proposal. However, the applicants have undertaken their own modelling, as allowed for by the Protocol, which shows that for the lifetime of the development (75 years) the site would remain in FZ1 and they are willing to have a condition imposed limiting the lifetime of the development to the period to 2090. If the site were to remain in FZ1 for its lifetime then no ST would be required. In addition, a ST would not be required if the WSSA were to be adopted with site WAS65 allocated. However, at the time of writing this report, the DPD had not been adopted. Whilst the applicants have said that the conclusions of the Inspector’s Report obviate the need for any further sequential test to be undertaken, there are outstanding matters such as the request for Directions which still need to be resolved and therefore I consider that the need for the ST remains until adoption of the DPD. (188-191, 211, 451-452, 757-761)
1040. Consideration of the SFRA, as required by national and local policy, shows the site to be in FZ3a in 2115. In addition, the site is dependent on flood defences for protection. There are some limited references to the level of maintenance of flood defences in EA publications but the SFRA estimates that their likelihood of failure is low, although they would be reaching the limits of the necessary 1 in 200 year protection by 2090. This is highlighted by the concerns of the local Internal Drainage Board that the flood defences are not perfect. Local residents have concerns about animal burrows within the defences but these are unlikely to have any significant effect and would be the subject of local maintenance. Ms Perryman and other local residents have drawn attention to existing deficiencies in river maintenance by the EA, for example the failure to flush silt from river beds through the use of sluices. However, the base data for flood levels was supplied by the EA who use the most up-to-date information on flood levels. Increasing conveyance is a matter which is dealt with by the EA in their Great Ouse Tidal River Strategy. (182-186, 192-193, 453, 772-779, 908, 928) www.planningportal.gov.uk/planninginspectorate Page 219 Report APP/X2600/V/12/2183389
1041. In terms of national policy, the NPPF TG, waste treatment facilities fall into the “less vulnerable” category (as endorsed on appeal eg Avonmouth) and can be suitable for FZ3a subject to the application of a sequential test. This requires an assessment of whether there are any other reasonably available sites suitable for the proposed development at lower flood risk. The NCC took the WPA area, ie the County, as the area of search and concluded that there were no other suitable and available sites for the proposed development. NCC also conducted a sequential test for the WSSA, with the appeal site being defined as FZ3 in that document. (192, 455)
1042. The draft WSSA identifies three sites as being suitable for thermal treatment: WAS65 (the appeal site); WAS05, Land at Estuary Road King’s Lynn, and WAS19, Snetterton. WAS05 is at similar flood risk (FZ3) to the appeal site but Snetterton is in FZ1. The BC has made a point both at this inquiry and also at the WSSA examination that the call for sites for the WSSA was insufficiently robust and that other sites should have been considered. However, no other sites were put forward as omission sites in the WSSA process and the Inspector, in his report on the WSSA, found that the methodology for the site search has been “entirely appropriate and similar to practice elsewhere”. In addition to the land at Snetterton, the BC has put forward two other sites: land to the west of William Frost Way, Costessey and land at Broadland Business Park. All three sites were also covered in the applicants’ ASA. (228-236, 237-243, 784-786)
1043. The NPPF TG and PPS25 Practice Guide both cover the approach to the sequential test. The NPPF TG requires it to consider “whether there are any reasonably available sites appropriate for the proposed development”. The Practice Guide is similar in requiring consideration of whether there would be “no other reasonably available sites which could be considered as being suitable and appropriate for the development proposed.” (458-461)
1044. In this case the proposed development is defined in the planning application and includes both the energy from waste facility (275ktpa) and the bottom ash recycling facility. NPS EN-1 para 4.4.3 adds weight to the need to consider only sites that would deliver the same infrastructure in the same timescale as the proposed development, where alternatives are relevant, which is the case with the ST. The BC dispute whether the bottom ash recycling facility should be considered as part of the plant. However, it is part of the proposed development in the planning application, which covers different, but functionally linked, processes on the North and South sites. I consider that both form part of the proposed development. (461, 787)
Snetterton
1045. The WSSA identifies 3.5ha at Snetterton but due to its shape and existing development only about 2.6 ha is considered likely to be developed for large scale processing or treatment operation. The capacity of the site as set out in the WSSA is estimated to be about 100ktpa. This would not be sufficient space to accommodate the development proposed at Saddlebow. The BC claim that this would offend the purpose of the policy which they say should look at the essentials of the development, in this case the EfW plant alone, and claim an analogy with large retail developments, where such elements as warehousing and balancing ponds are ruled out of the comparison. The outcome of the case of Tesco v Dundee [2012] UKSC13 mainly concerned the wording of particular policies but it was also
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noted that the exercise should be related to looking at the adequacy of the alternative site, rather than whether a proposal could be altered to fit on it. (251- 252, 463-467, 788, 801)
1046. The BC also raises the fact that, in carrying out the revised ASA, the applicants did not consider that the IBA processing area was essential. However, even without the IBA processing facility, that study concluded that the development of the Harling Road site would be relatively constrained with only moderate potential for an EfW facility. The drawings (K35 series) produced by the BC of the EfW plant positioned on the Snetterton site are illustrative but show only the EfW plant, which is tight to the boundaries of the site. Car parking is shown on land currently leased to others on a long lease and its relocation would lead to the loss of landscaping, which in any case is limited on this site. Circulation around the site would be cramped. In addition, the site would be next to a gassing landfill, requiring a barrier. Whilst this would be technically feasible, there has been no analysis of any increase in risk with a combustion facility on the Harling Road, Snetterton site. From the material provided, I consider that it has not been demonstrated that a facility of about 275ktpa could be provided on the site at Snetterton and the capacity is more in keeping with the estimate in the WSSA. In any event, the Inspector’s report into the WSSA shows that all of the allocated sites would be needed in order to comply with policy CS4 of the MWCS. Only the site at Saddlebow (WAS65) would be capable of meeting the County’s needs in the timescale. (252-255, 468-470, 789-790, 798-802)
Land west of William Frost Way, Longwater Business Park, Costessey
1047. The revised ASA also included the above site. This site is on the same business park as site WAS31 of the WSSA. The EA objected to Site WAS31, based on the potential for ecological damage to the River Tud (a tributary of the River Wensum which is a SAC). The EA also objected on the grounds of the proximity of the site to residential development, although these were essentially holding objections pending further information. As a result of the EA objection to WAS31, this site was thought to be similarly affected by nature conservation constraints. This has subsequently been reviewed for the BC by their nature conservation consultant. Whilst his view is that a more detailed assessment should have been carried out for WAS31 in the WSSA AA, the general approach to AA has been assessed as adequate by the WSSA Inspector in his report. (258, 473, 805)
1048. In terms of land use, there is a small number of waste/ aggregate uses on the business park, but its predominant uses are retail/ commercial, including a large supermarket. The site is also near to a restaurant and a public house with living accommodation over it. There are also claims that there is a restrictive covenant on the site. Evidence was presented to the inquiry that the site owners had been approached several times during the site search for the WSSA, but had not put this site forward. It was also said that the same owners prevented an existing waste management facility on the business park from having an EfW facility. Although neither the covenant nor the land ownership issues preclude the site entirely, they throw into doubt its delivery in the timescale required by policy CS4 of the MWCS. (256-257, 474-475, 803-805)
Broadland Business Park
1049. The BC also put forward a site at Broadland Business Park which was also considered in the revised ASA. Further growth is expected in the area which is on www.planningportal.gov.uk/planninginspectorate Page 221 Report APP/X2600/V/12/2183389
the edge of the built-up area of Norwich and NCC say that the owners of the site are promoting an outline planning application for a sustainable urban extension of 600 dwellings, as part of mixed use development, including B2 uses. Policy CS8 of the MWCS allows the use of B2 sites for waste development. Broadland Council have resolved to grant planning permission, subject to a planning obligation, but this would include a condition restricting heights to about 15m, which in part relate to the protection of the nearby Broads National Park. Existing uses near the site are generally commercial, retail, office and distribution in low rise buildings. Whilst the topography, position of the site and potential landscaping might lessen any impact, the height of the buildings necessary for an EFW facility and its stack would be out of keeping with such low rise development. The BC says that such differences could be resolved through good design, as was the case in the Shrewsbury and Leeds EfW facilities, but the circumstances there were different in terms of the status of the application and the lower height of the Shrewsbury proposal and its stack. (262-265, 477-478, 809-811)
1050. Part of the site would fall within 250m of existing residential development. Although this would exclude only a small area of the site, it emphasises the proximity to sensitive receptors. It has not been put forward during the WSSA process, except during the examination, where the Inspector, in his report, has ruled out the site out on the basis of residential development being reasonably near to the site. Since the owner has now obtained a resolution to grant planning permission for mixed uses, an EfW use might not be acceptable, especially with development constraints. Furthermore, it would need to be operational within the timescale necessary for compliance with policy CS4 of the MWCS. (262, 477, 811)
Conclusions on the ST
1051. If the WSSA had been adopted, para 104 of the NPPF says that it would not be necessary to carry out a ST. However, that was not the case at the time of writing. The alternative sites put forward at Snetterton, Costessey and Broadlands Business Park are all in FZ1. However, for the reasons set out above none of them can be considered to be reasonably available sites appropriate for the proposed development, as set out in paragraph 101 of the NPPF. Furthermore, none of the sites would be likely to be delivered in the timescale set out in the MWCS policy CS4 and the WSSA Inspector’s Report states there would be a need for all of the sites in the plan to be developed, with no priority order, in order to comply with this policy. The WSSA Inspector’s Report also concludes that “the “sound” selection process did not identify any reasonable alternatives.” As a development in a less vulnerable category, the proposal would therefore be compatible with a FZ3a location and no condition limiting the life of the proposal to 2090 would be necessary as a result.
Other flood risk matters
1052. Local people have raised concerns about the safety of workers at the plant and the protection of water quality at times of flood. Firstly, there are flood warning schemes in King’s Lynn which would be extended to the site. These should give significant warning about worst case fluvial flooding/ tidal surge scenarios in order that people can be clear of the plant and to allow shutdown. A condition is proposed to require a flood warning and evacuation plan which would be in place before development commenced. In the event of a breach, there might be little warning of sudden inundation, but such events would be most likely at times of
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fluvial flooding /tidal surge when pressure was put on defences and warning schemes would be operational. In this case there are areas of refuge within the main buildings at 24m AoD and the buildings would also be flood resilient, with electrical equipment and the waste bunker access raised above the worst case breach level, shown in the applicants’ breach assessment. Other mitigation is set out in the applicants’ FRA and would be the subject of a suitably-worded condition to ensure their implementation. (194, 202, 482, 821)
1053. The finished floor levels would be set at 2.54m AoD. Although this would be about 69cm below the worst case breach level, in my view the applicants have taken a considered view of the likely risk with mitigation in place and balanced it against the impact of raising floor levels further. The EP decision from the EA states flood risk has been comprehensively considered using up-to-date information for an EfW in this location and the EA have no objections on flood risk grounds. Whilst Ms Perryman and others question the accountability and reliability of the EA on flood risk, the EA is the authoritative body on this matter.(194, 206, 482, 821, 928)
1054. The effect of raising ground levels, together with the effect of other built development on the site, on flood risk elsewhere have been modelled as part of the FRA. Even in the worst case breach scenario there would be little impact from the development of the site, with water levels only forecast to rise by about 3mm, since the site is situated in a large flood cell. Water would take at least 20 minutes to reach the police investigation centre (PIC), which Ms Franklin and others say should be treated as a sensitive receptor with people being held there for a number of hours. A similar situation would exist with the travellers’ site adjacent to the A47. Any breach flooding would be likely to rapidly subside especially given the size of the flood cell. Parts of some roads, like Poplar Avenue, would be inundated in a breach but this would make only minor differences to the existing situation despite there being small increases in the “danger to all” category, and parts of the Palm Paper site, to which it leads, would remain dry. The maps which accompany the breach assessment indicate that emergency access to the facility and surrounding premises would not be significantly affected by the proposal. (198-202, 484-485, 821, 927)
Other water matters
1055. There have also been concerns that there would be pollution of surface water as a result of the IBA area being flooded. It is intended that the bins for the raw (ie unweathered) IBA would be protected by removable flood barriers, preventing the raw IBA from being washed out. Various objectors have questioned the length of time of flood warning and the time that would be taken to get the barriers into position. Other potential sources of pollution might come from the flooding of the proposed surface water lagoon. RPS has carried out a further assessment of what would happen to IBA if it were, in the worst case scenario, washed out in a flood. The assessment indicates that, as the site is within a large flood cell, there would be significant dilution of any pollution before it reached any sensitive receptors; and, it would tend to be deposited quite close to its source and would be contained by flood banks to rivers such as the Nar and Great Ouse. In its decision document to the EP, the EA regards the containment of any water-borne pollution as being suitably controlled by a pre-operational condition, PO1, which requires an Environment Management System to be in place prior to the commissioning of the plant. Therefore it would be unlikely that waterborne pollution would reach sensitive receptors. (195, 483)
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1056. Concerns about any surface water discharges from the plant would also be controlled through the EP, and the EA state in their decision document that conditions 2.3.1, 3.1 and 3.2 of the EP control this. There were objections to the planning application based on such issues, from the local Internal Drainage Board and others. However, I consider that surface water drainage could be covered by a suitably worded condition requiring details to be approved in writing before development on the site can commence. (942)
1057. Mr Wilkie and others have objected on the grounds that the development would be unsustainable since it would require significant amounts of mains water to run. Anglian Water has confirmed that there would not be a problem with the supply of mains water to the proposed development. In addition to mains supply, the proposal would also incorporate rainwater collection and the re-use/ recycling of water. The EA has already assessed the plant as BAT in respect of water use, as set out in the decision document p 105, which states that water would be used in the facility in a sustainable manner. (942)
1058. Finally, Mr Kratz has raised the issue of fear of flooding. Fear is capable of being a material consideration in planning decisions. Local people, including Mr Doubleday and Ms Perryman, have made reference to the severe flooding of King’s Lynn in 1953, which caused significant loss of life and is still remembered in the town. I have concluded that flood risk both on-site and off-site would be successfully managed, subject to the imposition of suitably worded conditions on mitigation and an evacuation plan. Whilst I appreciate that such views are earnestly held and based on personal experiences of past incidents, such fears can be given little weight. (486, 954)
1059. Therefore I conclude that the proposed development would not be harmful in terms of flood risk, would not unacceptably increase flood risk to others, would not cause pollution of surface water and little weight can be given to the fear of flooding in this instance. As such, the proposed development would be in accordance with policy DM3 and DM4 of the MWCS, policy CS08 of the CS, insofar as it covers flood risk, and para 99 of the NPPF on flood risk and para 120 of the NPPF in respect of water pollution.
Alternative sites/ technologies
Alternative sites
1060. The former air base at Coltishall has been put forward as a potential alternative site by a number of local residents, including Mr Wilkie. Policy CS5 of the MWCS states that the strategic facilities should be well-related to the Norwich policy area, Great Yarmouth urban area, King’s Lynn or Thetford. Although part of the site is defined as previously-developed land, the site is within an essentially rural area, over 16km from any of the above centres, and lacking any nearby access to the major road network. As such it would fail to meet the criteria in policy CS5. (267, 943)
1061. The site has not been put forward during the WSSA process nor the ASA process as it would not have met the policy criteria in CS5 and was not an allocated site for employment development. In addition, the site would be subject to countryside policies and the whole site is a Conservation Area with protected World War II and Cold War artefacts. The buildings proposed for the EfW would be unlikely to
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preserve the character or appearance of such heritage assets. Furthermore, access would be through a residential area, making it unsuitable for EfW use. (267)
1062. With the exception of the site at Coltishall, the other alternative sites discussed at the inquiry have been assessed as part of the revised ASA (and also in the ST, above). Whilst these three sites are located within areas which comply with the locational criteria in policy CS5 of the MWCS, they would not be likely to be suitable for the proposed development for the reasons set out above. The site at Coltishall would not comply with locational criteria and has additional factors which would make it unsuitable for an EfW facility.
Alternative technologies
1063. MWL has already been discussed above. It has not been tested at a larger scale and there are a number of other issues before it could be viewed as a viable alternative treatment method. Ms Barnes of Xprds stated that her firm’s method, Ecocycling, would be a sustainable alternative to the proposal. Little detail of the process was submitted to the inquiry and therefore it has not been possible to examine the validity of this claim. Mr Dickie of Green Energy Parks Ltd, which operates the PREL, discussed above, stated that his company intends to open a fusion MRF facility in King’s Lynn linked to the Peterborough plant. He claims that all the residual MSW which would be recovered at the proposal could be treated in such a plant. Although Mr Dickie claims to be progressing the project, at the time of the inquiry there was no indication of any site or planning permission for the activity. (443, 934, 945)
1064. A large number of objectors mentioned the need for alternative technologies, such as the use of AD, a technology supported by DEFRA for the management of kitchen waste. Other methods mentioned included: autoclaving; Gasplasma; landfill mining; osmotic power; and, tidal energy. Although the MWCS is technology neutral, it is dependent on the private sector to bring forward waste management proposals and no other large-scale technologies have come forward in the timescale to provide for the needs of the County in terms of policy CS4 of the MWCS. A number of objectors have stated that the entering into the contract and making the business case for PFI credits have effectively predetermined which technology would be used. Whilst the size of the proposed facility would take up most of the phased allowance up to 2015 in policy CS4, it would not constrain other technologies coming forward after that time. (927, 943, 944, 958, 963)
1065. In conclusion, alternative sites have been considered both in the ST and the applicants’ ASA, both of which were examined at the inquiry. Whilst it is the suitability of the proposed site in land use terms which was the question before the inquiry, none of the other sites put forward either through the ST or ASA were suitable for the proposed development. Both PPS10 and the MWCS are technology neutral, with the market being allowed to bring technologies forward. However, in this case EfW has been chosen and no other technologies of a similar size have been put forward that are sufficiently advanced within the planning process to be a suitable alternative means of treating Norfolk’s residual waste in the timescale of policy CS4 of the MWCS.
Air quality
1066. Paragraphs 26-28 of PPS10 set out the roles of the planning and pollution control regimes, which are separate but complementary. Pollution control seeks to prevent
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pollution through measures to prohibit or limit the release of substances to the environment to the lowest practicable level. It also seeks to ensure that ambient air and water quality meet standards that guard against adverse impacts to the environment and human health. The planning system controls the use and development of land in the public interest and focuses on whether a proposal is an acceptable use of the land and the impacts of those uses on the development and use of land. In doing so, PPS10 states that the decision-maker should assume that the relevant pollution control regime will be properly applied and enforced. NPS- EN1 sets out a similar assumption.
1067. An EP for the proposal has been issued. In examining the material supporting the EP application, the EA’s decision document endorsed the ADMS4.2 modelling as being a commonly-used model for regulatory dispersion modelling and assessed the results, including sensitivity analysis. The EA agreed with the conclusions on the impact of the proposal on air quality, despite some reservations about the way in which the modelling work was done. The effects on air quality were modelled conservatively at WID limits on a worst case basis. Cumulative effects from nearby proposals like Palm Paper’s sludge combustion unit and Centrica B have been taken into account in the modelling along with emissions from increased traffic flows. The in-combination effects were also modelled and not found to be likely to exceed the relevant AQSs. (311-314, 909)
1068. KLWIN has been critical of the air quality monitoring. They say that they were not provided with all of the information that they needed to recreate the model and provide alternative data. This remains a point of difference between them and the applicants, who say that sufficient data was supplied. However, in addition to the EA, the modelling and results have been considered by AQ Consultants for the BC. They have concluded that the modelling was appropriate and the results reasonable. In addition, they considered further work on the effect of increased transport emissions at both construction and operational phases, and on IBA dust deposition (which is also of concern to a number of local residents), both of which were considered reasonable in the approach taken and the results. The BC has not objected on the basis of air quality modelling or the issues which are dependent on it, namely health and ecology. In addition, further checks on the air quality modelling have been carried out by AEA for NCC, which confirmed that the facility would conform with local and national policies on air quality. (316, 635)
1069. KLWIN question whether the modelling has taken into account the relationship between the proposal’s stack emissions and the air cooled condensers on Centrica B. A note from the ADMS providers has said that this can only be done by Computational Fluid Dynamics (CFD). However, it goes on to say that in this case such an exercise would not be worth carrying out, due to the expense and the increased uplift and dispersal which might be expected as a result of the proximity of the condensers. This would be beneficial. KLWIN also object to the air quality modelling, questioning whether the revised Centrica B layout plan, dated 7 October 2010, was taken into account in the modelling and the EA’s checking of it. The applicants have produced evidence to show that the EA had access to the revised layout and the review of this issue is set out in the EP decision document. In addition, Dr Broomfield, for NCC, also used the revised plans for checking the modelling. As such, I consider that this matter was adequately covered. (317, 622, 624-625, 632-633, 879-884, 916)
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1070. Other details of the modelling, including the appropriateness of the use of RAF Marham windrose and of roughness factors in ADMS, were also questioned by KLWIN. Both of these issues were considered by the EA in their assessment of the air dispersion modelling outputs. Whilst they had some reservations about the modelling, the EA agrees with the applicants’ conclusions from it. Both the BC and the Meteorological Office confirmed that the data from RAF Marham was appropriate in this case. A number of local objectors, including Ms Perryman, drew attention to localised weather conditions around the King’s Lynn area which produce temperature inversions, which could trap pollutants. Although it is claimed that these happen fairly frequently, such events are unlikely to have any significant effect on the overall impact of the facility. (634)
1071. A number of local objectors have mentioned the effect of emissions on two AQMAs: one in King’s Lynn town centre about 2.2km from the proposal and Gaywood, which is about 4km away. Both these areas were designated due to traffic emissions of NO2. The effect on both areas was considered as part of the EP and in the decision document the EA agrees with the applicants that the annual process contribution of NO2 would not exceed 1% of the EQS at receptors in the AQMAs, with any impact being negligible. Emissions would be monitored and enforced through the EP. Ms Hall, Mr Wilkie and others have quoted a recent judgment of the Supreme Court, R (on the application of Client Earth) vs Secretary of State [2013] UKSC 25, which concerned Article 13 of the 2008 Air Quality Directive. As the air quality modelling for the proposal shows little material effect on local AQMAs from the proposal, it would be unlikely that there would be any breach of the Directive. In addition, policy DM13 requires development not to increase air pollution to unacceptable levels. Any increase would be negligible and the BC, who have responsibility for the AQMAs, do not raise any objection in this respect. (313, 530, 942, 946)
1072. The impact of abnormal operations of the plant were also raised by local people. A comparison with some plants, for example Eastcroft, were made where Ms Franklin says there have been breaches of the EP. However, these breaches were described by the EA as “minor” with actual levels being about 0.28% of the AQS. Breaches are allowed for in the EP, requiring self-reporting and are only allowed for a limited period of time (4 hours) and a limited total number of hours in a year (60 hours). The limits are set to avoid any long-term overall environmental impacts, when there are unavoidable failures or stoppages and backstop limits are also set to prevent short term environmental impact. Such matters are covered in the EP, with details in its decision document. (937)
1073. Ms J Knights objected to the development on the grounds of the measurement, control and monitoring of PMs. PM10 and PM2.5 emissions were specifically assessed in the EP process. The filters which would be used at the facility have been confirmed as BAT by the EA in the EP decision document, despite Ms Knights’ concerns that they might not be as efficient as some of the filters used abroad. However, control over PM10 and PM2.5 emissions from the proposal is a matter for the EP, as would be the frequency of monitoring. Further monitoring would also be required for PM10s, secured by a suitably-worded condition, and fugitive dust emissions from the IBA area, although it is acknowledged that this would not fully meet Ms Knights’ requirements on the location and type of monitoring. (945)
1074. Dust and odour management would be the subject of suitably-worded conditions and are also addressed in the EP conditions. (909, 937, 945)
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1075. Therefore, I conclude that the proposed development would not be harmful in terms of air quality. As such it would be in accordance with policies CS14 and DM13 of the MWCS in terms of air quality, policy DM12 in terms of dust and odour management and para 124 of the NPPF, which seek to protect air quality and protect the living conditions of local residents.
Ecology
Protected sites
1076. In terms of ecology, one of the main areas of concern raised was the possible effect of the proposal on protected nature conservation interests. The ES considered air quality effects on European sites within 10km of the proposal, as required by the EA’s H1 guidance. The European sites include Roydon Common and Dersingham Bog SAC, The Wash and North Norfolk Coast SAC and The Wash SPA. In addition, The Wash and Roydon Common are both Ramsar sites. The SoS as decision-maker is the competent authority for the purposes of the Habitats Regulations 2010, which require appropriate assessment (AA) to be carried about in certain circumstances before consent is granted for development.
1077. The test as to whether AA is required was set out in the Waddenzee case, which has since been interpreted by the British Courts in Hart vs SoS [2008] EWHC 1204 (Admin). An AA of a plan or project’s implications for the site in view of the site’s nature conservation objectives is necessary if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects. National advice on the approach to be taken on screening is set out in Circular 06/05, which advises a precautionary approach to screening proposals, and as also set out in Waddenzee and a case in Ireland, Sweetman vs An Bord Pleanala. The decision-maker also has duties under S28G(2) of the Wildlife and Countryside Act for SSSIs and S40(1) of the Natural Environment and Rural Communities Act 2006 for conserving biodiversity. (515-524)
1078. In this case, the matter of AA has already been considered by the EA in the granting of the EP and NCC who considered the planning application. The EA reviewed the applicants’ habitats assessment, having regard to the air quality modelling. The guidance produced by the EA and accepted by NE is that a likely significant effect is identified when a Process Contribution (PC) is greater than 1% of the relevant EQS. Using the critical load function (CLF) for acid deposition effects, the raised bog and blanket bog and acid grasslands at Roydon Common SAC, where Depressions on peat substrates of the Rhynchosporion (H7150) are a feature of interest, gave a result of 0.97% of the CLF. On this basis the EA concluded that no AA was required for the EP on the basis of acid deposition at Roydon Common SAC or The Wash SAC and SPA (including the Ramsar sites). In addition, the EA concluded that the proposal would not damage the special features of the SSSI or any non-statutory sites. (321, 525)
1079. NE has also advised that an AA is not necessary for the international sites, when consulted on both the EP and the planning application. Nevertheless NCC says that they took a precautionary approach and undertook an AA of the planning application. This was on the basis that: the 0.97% was close to the 1% CLF limit for the site; the critical load was already exceeded for sulphur; and, the sulphur component when considered alone would be above the 1% threshold (1.26% to 1.47%). In addition, no technical or scientific basis was found for the 1% limit. The www.planningportal.gov.uk/planninginspectorate Page 228 Report APP/X2600/V/12/2183389
result of the AA was that whether alone, or in combination with other projects, the proposal would not adversely affect the integrity of European sites. In terms of sulphur deposition, the APIS derived information shows a continuing annual decline in sulphur, with background rates declining faster than the PC. (321, 529)
1080. The AA also states at para 4.7 that: “the methodology for calculating process contributions relative to critical loads/levels has changed since the applicants’ assessment. The process contributions for individual substances are now added to assess the overall acid deposition, whereas previously the process contribution of each substance was assessed individually.” Using the up-to-date methodology the PCs would be less than the 1% screening level and on this basis the EA and NE say that an AA is not necessary following remodelling of the PCs by NE. (321, 529)
1081. There has been concern about the effects on designated sites by NWT, KLWIN and local residents and it is necessary to consider whether there is a need for the SoS to undertake an AA in the light of all of the information submitted. The information for any AA has already been collected in the ES and its Further Information and has not been challenged by any alternative analysis in terms of CLF. Mr Hughes for KLWIN and Mr Boyd of NWT agreed with the approach to screening and the APIS critical load functions. Mr Hughes’ points rely on Mr Bramwell’s evidence on the reliability of the air quality modelling, on which a conclusion has already been drawn, despite KLWIN’s continued objection on this point. (321, 530, 886-887)
1082. The differences between NWT, as set out in their original proof of evidence, and the applicants were, in part, resolved by the SoCG signed during the inquiry. In the SoCG these parties agreed that H7150 was present at Roydon Common and extends into the M21 Valley Bog in the western part of the common, the CLF for acid is precautionary and depends on the sensitivity of H7150. The air quality modelling suggests that highest predicted PC affecting any of the H7150 is less than 0.9% (App P2 of C31). Mr Boyd, for NWT, agreed that this was subject to the modelling being robust. This matter has been dealt with above. NWT also criticise the AA undertaken by NCC, in particular the use of work undertaken by Dr Denyer. This study, on the basis of a single day site visit, comes to a different conclusion on the condition of the site from that of NE and also makes reference to the mitigating effects of minerotrophic water, which is disputed by NWT. However, in undertaking the AA, it was NE’s assessment of the site condition (unfavourable recovering, due to past scrub removal and trampling by ponies) that was taken into account, rather than that of Dr Denyer, although not dependent on it. Therefore I consider that the study was soundly based. (321, 537, 545-547)
1083. Both KLWIN and NWT have objected to the proposal on the grounds of nutrient nitrogen deposition at Roydon Common. Evidence submitted at the inquiry indicated that nitrogen (and sulphur) deposition is mainly from large scale sources distant from Roydon Common, which will be declining, mainly as a result of air pollution legislation changes. Examples of the decline of some species on the site could be due to a number of reasons including lack of light from the overgrown nature of parts of the site and not just competition from species encouraged by nitrogen deposition. The process contribution for nutrient nitrogen deposition, as set out in the Additional Environmental Information, would be about 0.36% of the minimum critical load, which would quickly be cancelled out by such changes. KLWIN and NWT both raised concerns that control over deposition would be dependent on the actions of other sources in reducing their emissions. Nevertheless, trends can be established from the ROTAP data to support this
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decline and the practice of applying critical loads is supported by APIS and other statutory bodies. (321, 540-542)
1084. Mr Stevenson, for KLWIN, referred to a paper by Jones and Power on Roydon Common. However, its conclusions are general and are based on deposition rates which would be higher than those predicted by APIS both at Roydon Common and across Europe. The paper also comments on the levels at which critical loads are set. However, KLWIN suggest no alternative evaluation and the criticism in the paper has not been sufficient for bodies such as APIS to change their approach at present. ( 321, 534, 888-911)
1085. The potential impacts on the Wash Habitats sites (the Wash and North Norfolk SAC, The Wash SPA and the Wash Ramsar) have been considered in the ES and Additional Environmental Information. Both for acid deposition and nitrogen deposition, the sites were predicted to have less than 1% of the EQS and were considered not to lead to any significant effect. As such, NE and the EA have both concluded that the proposal, either alone or in combination, would not adversely impact on the integrity of The Wash sites having regard to their conservation objectives. Mr Smithers for NCC confirmed that the Wash BAP had been taken into account when preparing the ecological evidence and that there had been consultation with The Wash Estuary Strategy Group and groups representing shell fishermen. (544, 949)
1086. Two routes for potential contaminants to reach the Wash have been considered in the ES, deposition from air and emissions to water via the River Great Ouse. Mr Espin, former Chair of the Wash Estuary Strategy Group raised both of these issues in his evidence. In terms of emissions to water, one route would be pollution entering The Wash from surface water during flooding, when it would emerge via a ditch to the River Great Ouse and then enter The Wash. Normally, surface water would be held in an attenuation/ sedimentation pond on the site and there would be no discharge to the ditch. Modelling of the surface water has been conservative with discharges modelled straight to The Wash when in reality there would be sedimentation of any pollution, mostly close to the site. Even in such a case, the dilution both in the river and The Wash would be such that the PCs would be small in relation to the EQS. As such compounds of potential concern (COPCs) for shellfish are currently well below any level for concern and would continue to be so from the modelled results, being less than 1% of the COPCs. (321, 949)
1087. A similar situation would arise if material from the IBA processing area were washed out by flood water, despite measures for the deployment of barriers. Most of the material would settle on land close to the site and would be impeded from entering the River Nar, which is a SSSI, and the River Great Ouse, by flood defences on its banks, protecting the rivers. Any pollution entering the river would be decreased by the deposition process and, as river volumes would also be high during a flood event, dilution would be increased, lessening any harm. Eventually any pollution would also reach The Wash but in a highly diluted state. (195, 550)
1088. Controls over air emissions were also raised. These have largely been dealt with in the EP and there are a range of methods used to control air emissions, which have been assessed as BAT by the EA. The issue of the temperature of the flue gases is only one of the matters which influence emissions and has been taken into account in the modelling both in the ES and the checks of it by Dr Broomfield for NCC. EN notes existing high rates of nutrient nitrogen deposition in The Wash,
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although it dismisses these as being likely to be dispersed through flushing and turbidity. This is disputed by Mr Wilkie, who also raised bioaccumulation as a potential threat to the habitat. However, nutrient nitrogen deposition is only 0.26% of the minimum CL and acid deposition less than 0.2% of minimum CL. Furthermore, levels would also be influenced by the declining national and international levels of nitrogen and sulphur noted above. (321, 942)
Protected species
1089. Mr Wilkie has raised the issue of the effect of the proposal on protected species including common/harbour seals, harbour porpoises and the white beaked dolphin in The Wash. In addition there have also been occasional sightings of the seals and harbour porpoises in the River Great Ouse. He also has concerns for badgers and bats. Harbour porpoises and bats are listed under the relevant sections of the Habitats Directive and are also protected under the Wildlife and Countryside Act 1981. The common/ harbour seal is also protected under the Directive, as are all cetaceans. Badgers are protected specifically under the Protection of Badgers Act 1992 which protects badgers and their setts and they are also protected under the Wildlife and Countryside Act 1981. The Wildlife and Countryside Act prevents the killing, injuring or taking of the protected species and the Habitats Directive prohibits, amongst other things, the deliberate disturbance of the species listed in Annex IV (bats, harbour porpoises and cetaceans) and any deterioration or destruction of their breeding or resting places under Article 12 of the Directive. Species protected under Annex IV have individual protection and those under Annex II are larger populations for which SACs should be designated. (552-553, 559-564)
1090. The approach to be taken when performing the duty set out in Regulation 9(3) of HR2010 is set out in Morge vs Hampshire CC [2011] UKSC 2. Mr Wilkie made reference to the minority judgment of Lord Kerr, who was in a minority of one to four, but the whole transcript has been made available to the inquiry. The approach is set out in the majority judgment and requires evaluation of whether the proposal would lead to disturbance, whether it would lead to the deterioration or destruction of breeding sites or resting places, and if so, whether a licence for such activities would be granted by NE. (555-556)
1091. The potential impact on The Wash international sites from air and water emissions has already been evaluated above. NE’s view as expressed in the consultations on the AA was that there would be no adverse effects on shellfish populations and overwintering birds would not be affected. Although the European eel was not specifically investigated, any impacts would be likely to be in terms of water quality, the modelling for which shows that there would not be any significant impacts.
1092. Mr Wilkie is also concerned about the effect on the harbour porpoise of pile driving for the proposed buildings. Any noise from the piling would be only for a period during the construction programme. The paper which Mr Wilkie submits concerns the disturbance from pile driving at an off-shore wind farm. This piling would be on land and therefore would be substantially different from that in the submitted paper. The piling method would be auger piling, as set out in the ES, Part B, App 15, which is one of the quietest and has little vibration. Piling would be the subject of a suitably-worded condition where such considerations would be taken into account. (563, 942)
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1093. The applicants have produced an updated protected species survey, which sets out a mitigation strategy for water voles, bats, barn owls and badgers. Compensatory measures are also included for grass snakes. External lighting for the facility, which might adversely affect bats, would be the subject of a suitably- worded condition so that any scheme would take their needs into account.
Conclusions
1094. Turning first to designated sites. The potential impact on European sites, including those at Roydon Common and Dersingham Bog SAC and The Wash sites has been evaluated. The air quality modelling for sites at The Wash indicates that maximum modelled deposition rates are well below 1% of EQS, based in critical loads, both in terms of acid and nitrogen deposition. The modelling for Roydon Common shows a process contribution for the site approaching the 1% limit (0.97%) for acid deposition. However, for the areas of the site with H7150, which as an Annex I habitat is a primary reason for designating the site and which has high sensitivity to acid deposition, the maximum PC has been agreed with NWT to be 0.9%. Both levels are therefore less than the 1% limit, which is the test set out in the EA guidance. Whilst there were representations based on whether that figure should be rounded-up and an AA would then be necessary, there is no basis for that in the guidance. Both the current and future condition of the H7150 is described as favourable by the JNCC. In terms of sulphur deposition, the APIS derived information shows a continuing annual decline in sulphur, with background rates declining faster than the PC. Therefore I consider that the proposal would not be likely to have a significant effect on any European site, Ramsar site or SSSI, having in mind their conservation objectives, either alone or in combination, based on objective information and recommend that an AA would not be necessary. This was also the conclusion of NE and the EA. If the SoS disagrees with this conclusion, sufficient information has been submitted to carry out an AA. In effect, a shadow AA has already been provided by NCC, in their own AA.
1095. Secondly, in terms of protected species, there is no evidence that the proposal would lead to disturbance of European Protected Species, or the deterioration or destruction of a breeding site or resting place for them. Therefore, as there would not be any infringement of Article 12 of the Habitats Directive, it is not necessary to consider whether a licence would be granted by NE.
1096. Therefore I conclude that the proposed development would not be harmful to nature conservation interests and would be in accordance with policies CS14 and DM1 of the WMCS, the Key Planning Objective on the protection of the environment in PPS10 and para 118 of the NPPF.
Health and the perception of harm to health
1097. A significant number of objections from local residents were based on their perception that the proposed development would cause harm to health. As already stated under the flood risk section, fear is capable of being material planning consideration. However, the weight to be given to it has to be based on objective evidence. (493)
1098. Potential health impacts have already been examined as part of the EP process and PPS10 states that the impact on human health is properly part of the EP process. The facility would be regulated in accordance with the conditions of the EP
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in order to control emissions as required, in particular, by WID to prevent pollution of air, soil, surface and groundwater. As most of the objections on health-related grounds are based on emissions to air, including from dust from the IBA processing plant, these were considered as part of the EP process. The conclusion in the decision document for the EP was that the potential emissions of pollutants, including dioxins, furans and metals, from the proposed facility are unlikely to have an impact on human health. (323-325, 495)
1099. Paragraph 30 of PPS10 states that modern, appropriately located well-run and well-regulated waste management facilities operated in line with current pollution control techniques and standards, should pose little risk to human health. Paragraph 27 states that decision makers should work on the assumption that the relevant pollution control regime will be properly applied and enforced. Paragraph 30 also says that the detailed consideration of a waste management process and the implications, if any, for human health is the responsibility of the pollution control authorities but it goes on to say that planning operates in the public interest to ensure that the location of the proposed development is acceptable and health can be material to such decisions. It continues on at paragraph 31 to outline the approach that decision-makers should take to concerns about health, based on Government advice and research and through consultation with the relevant health authorities and agencies on any implications for health. NPS-EN3 states that decision-makers should assume that there would be no adverse impacts on health where the facility meets the requirements of WID. The EP confirms that WID requirements would be met. (323-325, 495-496)
1100. The most up-to-date positions of the various national bodies is reported in DEFRA’s Guide to the Debate. The HPA nationally state that “modern, well managed incinerators make only a small contribution to local concentrations of air pollutants. It is possible that such small additions could have an impact on health, such effects, if they exist, are likely to be very small and not detectable,” in their 2009 document, The Impact on Health of Emissions to Air from Municipal Incinerators. New research on the health impacts of incinerators is to be undertaken by Imperial College for the HPA and Dr Devulapalli and a number of local objectors have said that the project should be delayed until the outcome of that work is known. However, the view of the HPA expressed in the Guide to the Debate is relatively recent and, as such, reliance can be placed on it. (329, 497)
1101. The applicants have submitted a Health Impact Assessment (HIA) which contains a broad assessment of general health concerns and key pathways during both the construction and operational stages of the proposed development. There is also a Human Health Risk Assessment, which contains a quantitative analysis of the potential effects on receptors from emissions. This included local farms, including a dairy farm which was a concern of Ms Franklin in terms of the bioaccumulation of dioxins. Consultations were carried out with the BC’s environmental health department, NHS Norfolk, who responded on behalf of the local HPA, FSA and the EA, all of which had no objections to the proposal. NHS Norfolk considered the health aspects of the proposal and required further information on a number of matters including air quality, emissions to water, IBA dust and traffic. However, they subsequently supported the proposal on the grounds that increased employment would bring health benefits and lessen health inequalities for local people. Whilst Ms Perryman has criticised the approach taken by NHS Norfolk, they remain the local health protection body and their comments need to be given due weight. The FSA were also consulted and commented that as long as the plant is www.planningportal.gov.uk/planninginspectorate Page 233 Report APP/X2600/V/12/2183389
WID-compliant they had no objection to the proposal. The BC’s consultants accepted the HHRA and found no unacceptable risk to any identified receptors. (498-499, 929)
1102. KLWIN’s health witness, Professor Howard’s, principal concern was particulate matter, (PM), and he had three main points. The first concerned the uncertainty of the modelling estimates. However, the modelling approaches have adopted a worst case scenario, with the air quality modelling on which the health impact work is based on the worst case scenario, for example, at WID limits rather than likely operational values, and for the effects of PMs, all being considered as PM 2.5. This was agreed to be a conservative approach by Professor Howard and is the approach advised by the EA. Secondly, he had concerns about the assessment of PM emissions. In this case the PC would only be 0.28% of the AQS and the environmental concentration would be well below target value, as set out in the ES. Points were made by Professor Howard about the number of PMs being more important than the mass, but this is the measurement system for the AQS set out in the EC Air Quality Directive 2008 and is an accepted means of measurement. He has referred to a number of papers in support of his argument, including Aboh, from which Professor Howard claims that PM levels are underestimated. This is at variance with many other scientific papers and is a matter on which further research is required. Professor Howard uses body burden to measure health impacts, as he feels that this better explains the importance of PMs on actual health. However, TDI is the approach used by the EA in permitting and an accepted measure of health impacts. (330, 500-506, 897-903, 910)
1103. A number of papers and statements have been referred to by the main parties, KLWIN and local objectors. The paper by Thompson and Anthony (BSEM report 2008), referred to by a number of people, has been reviewed by the HPA, which found amongst other matters that it failed to differentiate between hazard and risk and did not take into account monitoring within the regulatory process. A number of local objectors also quote Michael Meacher, when he was SoS for the Environment, as saying that incinerators are the source of toxic pollutants. However this failed to recognise that these can be effectively controlled through the EP process. Concerns have also been raised specifically about dioxins and furans. The monitoring of these PoPs is carried out through the conditions of the EP. Many of the papers referred to for example, Franchini et al, refer to an older generation of incinerators which were not subject to current controls. A DVD was submitted by Mr Wilkie, on a steel works in Ostrava, in the Czech Republic. This process and its emissions would be very different from that of a UK waste incinerator, which would be operated under a requirement for the use of BAT under the EP regime. (329, 437-439, 943)
1004. Local objectors, including Cllr Kemp and Ms Perryman, raised the issue of the proximity of the facility to areas which already have poor health and socio- economic indicators. Cllr Kemp also drew attention to the disproportionate number of emergency hospital admissions from South Lynn, particularly for asthma. Professor Bridges’ evidence drew attention to these confounding factors in his evidence, which are difficult to eliminate in epidemiological studies. Richard Howitt MEP highlighted the new duties that local authorities would have to improve health care and inequalities in health under the Health and Social Care Act 2012. Cllr Kemp provided further information on this issue, although the duties are not related to planning matters. Any tighter regulation on emissions from the EC, as raised by
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Mr Howitt, would be achieved through the permitting regime. (507, 926, 928-929, 936)
1005. Mrs Beate Knights drew attention to the issues of fire and safety, based particularly on experiences of incinerators in continental Europe. Emergency procedures have been reviewed as part of the EP and in this case the Fire Service was consulted but had no objections to the proposal. Mr Peter Knights expressed concerns about the effect of emissions on his blueberry farm. As requested, the HHRA looks specifically at a blueberry farm as a receptor of emissions and no adverse effect was found. In addition, the FSA was consulted on the proposal and had no objections on any such grounds. Ms Franklin’s concerns about the effect of emissions from the proposal on people attending the Norfolk arena and those being detained at the PIC would be result in relatively short-term exposure, mostly under 12 hours, to emissions which would, in any event, be controlled through the EP. Other close sensitive receptors, like people at the travellers’ site, even though they are also close to the A47, would still have maximum NO2 levels below the annual mean EQS. (937, 941, 955)
1106. Many local objectors have asked that the precautionary principle should be invoked given their views on the health risks from the proposal. However, this would only apply where there was clear evidence of harm to human health. Para 30 of PPS10, WS2007 and the Guide to the Debate state that there is no evidence of harm to health from modern, properly regulated facilities. An EP has been issued which took air quality and human health fully into account. Therefore there would be no grounds for the precautionary principle to be used in this case.
1107. KLWIN and a number of local people have raised the environmental performance of Wheelabrator in the USA, where there have been allegations which have resulted in out of court settlements. A detailed response to each of the incidents referred to has been submitted by Wheelabrator, noting where procedures differ between the USA and UK. In any event, this is not a matter for the planning process, since the permission would not be a personal one but would run with the land. The competence and record of the operator is a matter for the EA to investigate as part of the EP process and they have been satisfied with the responses provided by the applicants. (331, 380, 434-436, 905)
1108. Dr Devulapalli and others have referred to the fear and anxiety that a facility such as the proposal would cause. However, I consider that there is no objective evidence that the proposal would cause ill-health for the surrounding residents, despite Professor Howard’s views to the contrary. The EP was granted on that basis and would be controlled and monitored through it. Other appeals have made similar conclusions, for example, Ince Marshes. Therefore although strong, genuinely-held fears about health have been expressed both in respect of the planning application and at the inquiry, these concerns should be given little weight. (954, 960)
Prematurity
1109. The BC view is that a decision on this planning application would be premature since it would pre-empt decisions to be taken in the WSSA. Guidance on prematurity is set out in The Planning System: General Principles, which seeks to avoid decisions on planning applications pre-empting decisions which should be made as part of the development plan process. (113, 813-819)
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1110. In this case the WSSA Inspector’s report has been sent to NCC and supports the inclusion of site WAS65, the site for this development, for a range of potential waste uses including thermal treatment. The Inspector has largely rejected the objections of the BC to the WSSA in terms of the number of sites proposed, their spatial distribution and the approach to providing a range of treatment technologies, by stating that all of the sites allocated in the draft report, including WAS65 would be required to fulfil the waste management needs of the County. In any event, the adopted MWCS, already makes some decisions about the amount, phasing and general locations for waste development in policy CS4. Even if the WSSA has not been adopted by the time of the SoS’s decision, the Inspector’s report gives significant weight to the selection of the site for recovery, including thermal treatment. (121, 913)
Local financial considerations
1111. Section 70 (2)(b) of the Town and Country Planning Act requires the SoS to take local finance considerations into account in the determination of the planning application. In this case NCC has been awarded a provisional PFI grant of £91m for the project by DEFRA. Whilst the grant was challenged unsuccessfully by the BC and its justification was also queried by Ms Truss MP, that decision has already been taken by DEFRA, based on a business case made by NCC as WDA.
1112. The BC argue that the PFI credit is only a reallocation from central government to local government and therefore it should not carry any weight, since there would be a neutral effect on the public purse if the project did not go ahead. The credits in themselves do not have land use consequences but they facilitate development and are one of the prime means through which the project (and hence the County’s waste management infrastructure) would be implemented. Whilst the BC say that an application could be made for a new project to be supported through the PF2 scheme, this would further delay the sustainable management of waste in Norfolk. In the Cornwall decision, the financial implications of the project were given very substantial weight due to the significant cost to the public purse if the project did not go ahead and the uncertainty that would be caused. (402-404, 828-832)
1113. In this case, as already discussed, there is an urgent need for the development and it is the only project that could deliver the provisions of the MWCS policy CS4 within the timescale of the policy and move waste up the hierarchy and away from landfill. NCC say that this would save them at least £8m per year in waste management costs. An urgent need also exists in terms of the need for energy, even though it is only a small contribution. The applicants have stated that any different proposal could take up to 6 years to complete, with acquiring the site and ensuring that the necessary permissions and permits are in place in mind. The sites in the WSSA and ASA indicate that there could be difficulties in providing a site at the scale necessary in the timescale required. In the meantime, with existing contracts only in place until 2016, alternatives would have to be sought to prevent the use of unsustainable landfill. (365-368)
1114. In addition to the PFI credits lost, there would also be the costs associated with NCC cancelling the contract with Cory Wheelabrator. That contract is, at the time of writing, the means of implementing the MWCS in terms of residual MSW, in terms of recovering value from the waste and moving it up the waste hierarchy away from landfill. The exact cost of cancellation is not known since these parts of the contract are redacted. Nevertheless, the “penalty” clauses would also be likely
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to have an impact, and potentially a considerable one, on the local public purse. There would also be the costs of finding another means of providing facilities for the management of residual MSW in Norfolk, which are unknown.
1115. Although the PFI Credits are essentially transfers of money between government levels, as commented on by Ms Truss MP, in this case they have land use implications and affect the timely implementation of the MWCS. Therefore they should have significant weight However, they need to be examined in the planning balance, rather than used to “skew” the planning considerations, as suggested by the BC. (401, 925)
Other matters
Visual impact and landscape
1116. KLWIN have not submitted detailed evidence on this matter, although they make reference to the impact that the scale of the buildings would have on the perceptions of local people about the impact of the development as an oppressive reminder of the failure of the democratic process. Mr Morrish and others are concerned about the negative impact which they say the development would make on the approaches to the town and visitors’ perceptions of it. At the inquiry he compared the negative perception of the proposed development against the positive and welcome approach of Ely cathedral in views across the fenland landscape. (346-347, 350-352, 570-571, 950)
1117. The proposed development would be on the edge of landscape character area Area E -The Fens - Open Inland Marshes in the BC’s Landscape Character Assessment. These areas are generally open flat agricultural land, which extend to the south and east of the site. The flat nature of fenland landscape results in much of this area being within the ZVI, with the areas to the west being generally higher and more wooded, which constrains more distant views from this direction. It is not disputed that the buildings on the site would be visible for long distances across the open fenland, but the facility would not have an adverse impact on any protected landscape, with the only area with higher impacts being on the Nar Valley Way adjacent to the site. Because of the scale of the buildings, it would not be possible to screen them in such views by landscaping. Nevertheless a landscaping scheme is proposed for the facility, to be secured through a suitably-worded condition, which would enhance the site area and its immediate surroundings.
1118. However, the business park on which the proposal would be sited is characterised by very large buildings like those of Centrica A and Palm Paper, with their stacks, with other consents in place for similarly large buildings like Centrica B and Palm’s sludge combustor, together with other large commercial and industrial buildings. The building would largely consolidate the mass of buildings already on the business park and be viewed within the context of them. Whilst the design of the building has been criticised by Mr Morrish and others, such views are subjective. The Design Council (formerly CABE) were consulted on the design of the buildings and had no objections to their functional design. (950)
1119. There have been some objections from the few people who live close to the site, in terms of visual impact. The nearby residential receptors have also been assessed in the LVIA carried out by the applicants. There would be an impact on these receptors since there would be increased industrialisation of their views over the site. However, none would be so close for such views to appear oppressive.
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The plume from the stack, which would comprise mainly steam, would be visible for the majority of days in the year. However, the plume from Palm Paper is already a visible feature of the area and there are other stacks on the industrial buildings, already built (although Centrica A is not operating at present) or planned. Therefore the plume from the stack would not be out of place in the already industrialised area. (906-907)
1120. Therefore, in my judgement, the proposed development would not be harmful to the character and appearance of the area and would be in accordance with policy DM8 of the MWCS.
Transport
1121. There have been a significant number of objections based on transport from local residents. All of the waste would be transported by road. In a rural county such as Norfolk, road transport rather than rail or other means has been established as being the only effective means of transporting the waste. In terms of site selection in the MWCS for strategic sites, a location well-related to the major road network is required. The Transport Assessment (TA) and ES, prepared by the applicants, has been the subject of consultation with the highways authority, NCC, and the Highways Agency, who have no objections to the proposal subject to conditions. (442)
1122. Local people are concerned about the capacity of the A47 Saddlebow Interchange and the capacity of the road system more generally, including the Hardwick junction (A47, A10, A149). Local people’s views are that these junctions are already congested, even more so when there is holiday visitor traffic. The TA and ES indicate that although there would be an increase of over 10% in traffic on the roads in the immediate vicinity of the proposed facility, increases elsewhere including major roads, would be well under 10% and well within the capacities of the existing road system. As such, it would not have any discernable environmental impact. The relevant junctions would have sufficient capacity and would continue to operate with spare capacity when the plant was operational. (441)
1123. A number of local people, including Ms Perryman, have questioned why no conditions requiring the restriction of delivery hours to off-peak hours were suggested by NCC, as similar conditions were required for the adjacent Palm Paper plant. However, there is no information on why such conditions were required for the Palm Paper development and similar conditions would not be necessary for the proposed development in the light of the TA submitted by the applicants. (928)
1124. Therefore, the proposed development would not be harmful to highway safety. It would comply with policy CS5 of the MWCS, in being well-related to the major road network and policy DM10 of the MWCS in terms of traffic impact.
Historic environment
1125. Representations from local people have included comments on the potential effect of emissions on the historic buildings of King’s Lynn town centre, many of which are listed, and the visual impact on the setting of historic areas, including the quay, which forms part of the Conservation Area. There would be controls over emissions from the stack, as set out in the EP, which would ensure that it would be highly
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unlikely that there would be any significant adverse impact on the fabric of the buildings concerned.
1126. The industrial area at Saddlebow is visible in distant views from the quayside in King’s Lynn and the proposal would influence those views as shown in the wireframes and photomontages submitted by the applicants. However, the distance and the physical detachment of the proposal amongst the other industrial development in views across the River Great Ouse would be sufficient to ensure that there would be no adverse impact on the setting of the Conservation Area and views out of it. English Heritage came to a similar view in that there would be change to the setting of the historic parts of King’s Lynn as a result of the development but that would not amount to harm to heritage assets.
1127. Mr de Whalley objects on the grounds of the impact of the proposal on the ruined church at Bawsey, which is a Scheduled Ancient Monument. Bawsey is a deserted settlement, with only the ruins of the former church remaining. The proposed development would be visible in distant views from Sandy Lane, with the church ruins in the foreground. However, proposal would be so distant that its presence would not have an adverse effect on the scheduled ancient monument.
1128. Therefore, I conclude that there would not be a harmful effect on the significance of heritage assets and that the proposal would be in accordance with policy DM8 of the MWCS and para 132 of the NPPF.
Socio-economic factors
1129. A number of local objectors and groups like the local Round Table and Trades Council have raised the issue of the impact of the proposed development on the town’s socio-economic development, both in terms of inward investment/ regeneration and tourism. However, the development would be a large investment in its own right with up to 300 jobs created during construction and about 40 jobs during operations. In addition, there would be further jobs created indirectly within the service sector and within support operations for the facility. There is little to suggest that the landscape of the area would be adversely affected by the proposal and that tourism would be reduced as a result. The CHP potential might either support existing industry or encourage new industry to take advantage of the energy that would be produced from the facility. In addition, there is evidence from other appeals, such as the examples in para 2078 of the Cornwall appeal [CD/A/6] that such facilities do not deter or discourage nearby economic activity, regeneration or tourism.
1130. There are also comments stating that there would be an adverse effect on house prices in the local area. However, house prices and sales are more likely to be the result of the local and national economic situation, and, as there is little to suggest that the economic prospects of the area would be adversely affected by the proposal, it is unlikely to have any undue effect on house prices generally.
Living conditions
1131. A small number of local residents objected to the proposed development on the grounds of noise. Surveys were carried out as part of the ES and mitigation would be achieved by suitably-worded conditions to ensure no significant adverse effect on the living conditions of the closest local residents, including those held for a period at the PIC. Piling would be also the subject of a suitably-worded condition,
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which would consider noise. There were also objections on the grounds of the potential for litter and vermin from the facility. Mitigation for litter and vermin was considered as part of the ES and there is a suitably-worded condition to ensure that the proposed mitigation would be implemented. As such, the proposal would be in accordance with policy DM12 of the MWCS, which seeks to protect the living conditions of people living in close proximity to such development.
Localism
1132. There has been significant local opposition to the proposal with a large number of objections from Parish/ Town Councils, local groups and local residents. In addition, there have been two local polls, one undertaken by the BC, which covered their Borough, and one by the applicants which covered a sample of residents within the whole County. Many objectors, including the BC, have drawn attention to the high proportion of people against the proposal in the local poll (92.68%, with a 61.33% turnout). The applicants say that the poll was undertaken before the application and its supporting information had been submitted, that they were unable for a number of reasons to put their case on the poll paper and that a wider Norfolk-wide view should be taken, as in their poll, since the facility would be for the whole of Norfolk. On the other hand there are also some supporting representations, including from Mr Reed and a local businessman, Mr Whittred. Nevertheless, the majority of interested persons oppose the scheme. (337, 429, 842-844, 905, 919-920, 921)
1133. Despite the weight of local objection, it cannot, on its own, be a reasonable ground for resisting development. Such objections have to be based on valid planning reasons. Through the planning application and inquiry processes, there has been the opportunity for local people to make their views known and the points made to be considered and reported on. Many objections have focussed on the Localism Act, although the Courts have held that the principles and policies for the determination of planning applications have not altered. (339-340, 432)
1134. Finally, Mr Mike Knights, Ms Perryman and others have commented that there has been a democratic deficit in decision-making including: the process of choosing the proposed technology, keeping the contract confidential and NCC’s consideration of the planning application. However, the call-in of the planning application and the inquiry process have allowed for an independent assessment of the application, hearing evidence from all concerned, with the SoS making an independent decision. (929, 952-953)
The Adequacy of the ES
1135. The original ES was submitted with the application, but NCC considered that further information was required. This was submitted in January 2012, together with an updated statement of community engagement. Verification reports were subsequently submitted in April 2012. (354-355)
1136. Ms Franklin has concerns that those detained in the PIC have not been taken sufficiently into account in the assessment of flood risk and air quality. She has pointed out that the PIC was not properly considered in the FRA and that the EA had given different advice for flood risk in respect of the PIC to the site. However, in both flood risk and air quality modelling the main aspect which needs consideration is the length of time that people are detained and whether they should be considered as residential receptors for flood risk and air quality www.planningportal.gov.uk/planninginspectorate Page 240 Report APP/X2600/V/12/2183389
considerations. Whilst the detention times might be greater than the 6-7 hours mentioned by the EA, perhaps being over 9 hours, it would not be significantly greater than the period already assessed by the applicants and checked by the EA. (356-357, 937)
1137. A number of issues with the air quality modelling in the EA were highlighted by Mr Bramwell, for KLWIN. Firstly, there was concern over the plans provided for the modelling, in respect of the revised position of the Centrica B buildings, which have been commented on above. Mr Smyth’s evidence shows that the revised building plans have been taken into account in revised modelling but in any event, it is the EfW buildings which have the greatest influence on the outcome. Secondly, as commented on above, CFD modelling was not necessary to ascertain the effect on dispersion of emissions from the stack as a result of the air released from the Centrica B air cooled condensers. Finally, Mr Bramwell suggests that a different surface roughness factor should be adopted in the ADMS modelling. These matters were raised by NCC in the requests for further information for the ES. Furthermore, the approach to terrain modelling was endorsed by the EA in considering the EP. (316-317, 622, 624-625, 877-881)
1138. Finally, Ms Crowther submitted a number of documents on environmental legislation. She also suggested that the planning application would be a plan or project that would require SEA. However, as explained at the inquiry, SEA is not normally needed for a planning application as its remit in the UK is for development plans. (445, 934)
1139. Therefore I conclude that the ES provides adequate information on the likely significant impacts of the proposed development and the mitigation measures that may be required. As such, the ES is adequate and meets the requirements of the relevant legislation.
Planning balance
1140. In terms of waste policy, PPS10 states that there is no requirement to demonstrate the quantitative need for an EfW plant for the County, since there is an up-to-date development plan, the MWCS, adopted in September 2011. The proposal would also implement Policies CS3 and CS4 of the MWCS, which requires 370, 000 tonnes of recovery to be provided in the period 2010-2015. As the facility now has a first stage R1 certificate it should be treated as a recovery facility, although this cannot be confirmed until one year’s operational data has been submitted and approved by the EA. Nevertheless, the proposed development would move waste up the hierarchy, diverting 275,000 tonnes of residual MSW and C&I waste from landfill, without preventing increased recycling. In addition, it would provide a facility for the business community to sustainably manage their C&I waste. This matter has substantial weight.
1141. In terms of location, the proposal would be the only facility currently capable of managing the County’s residual waste, especially in the timescale of the plan and it would be one of the NAIs, as required by WR2011. Although the WPR2011, para 263, does not require individual authorities to be self-sufficient, the proposed development would contribute to both national self-sufficiency and to Norfolk’s self- sufficiency. The proposal would comply with policy CS5 of the MWCS, as it would be in one of the locations for strategic waste management facilities. In addition,
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the site is allocated for thermal treatment in the draft WSSA and has been endorsed as such in the Inspector’s report on the DPD. In view of the conclusions on the main issues it would also comply with the locational criteria set out in Annex E of PPS10. This matter also has substantial weight.
1142. The facility would provide 21MW of renewable and low carbon energy, for which there is an urgent need. Para 3.1.4 of EN-1 states that substantial weight should be given to projects satisfying this energy need. The energy produced would be classified as renewable and, in policy terms, low carbon, both of which the Government is committed to dramatically increase, and it would represent a move away from fossil fuel. It would also be dependable in terms of energy security, diversified in terms of its source, distributed and dispatchable. EfW is seen as increasingly important in ensuring the security of UK energy supplies, in para 3.4.4 of EN-1 and of being a low carbon source of fuel. The facility would be CHP- enabled, with the potential to supply local industrial or domestic schemes. These matters also have substantial weight in favour of the proposal.
1143. In terms of flood risk, as it is a “less vulnerable” development which would be in FZ3a in 2115, a sequential test is required. The site would pass the sequential test and would comply with policy DM4 of the MWCS and policy CS08 of the CS. The alternative sites put forward by the BC and others have not been shown to be suitable for the development proposed in this application. The proposed development would not give rise to water pollution and would comply with policy DM3 of the MWCS and para 120 of the NPPF. These matters are neutral, in terms of weight. In view of the history of flooding in King’s Lynn, some limited weight is also attached to local residents’ fear of flooding.
1144. The proposal already has an EP and para 27 of PPS10 states that this regime is concerned with preventing pollution through the release of substances to the lowest practicable level and ensure that ambient air and water quality meet standards that guard against impacts to the environment and human health. Human health is specifically identified as a matter for the pollution control regime and also, in para 30 that modern, appropriately located, well-run and well-regulated facilities operated in line with current pollution control techniques and standards should pose little threat to human health. The EP process has also determined that the proposed process would be BAT, as would the means of controlling its air emissions and water use and in terms of its global warming potential. Guidance in PPS10 states that the decision-maker should assume that the relevant pollution control regime will be properly applied and enforced. Nevertheless, in terms of the perception of harm, especially in health matters, some limited weight needs to be given to the fears expressed by local people.
1145. European sites within 10km include Roydon Common and Dersingham Bog SAC and RAMSAR and The Wash and North Norfolk Coast SAC and The Wash SPA and RAMSAR. I have concluded that the proposed development would not be likely to have a significant effect on these sites and so no AA would be required. Any effects on the River Nar SSSI have been screened out and there would be only limited impact elsewhere. In addition, there would be no adverse impact on protected species. As such, the proposal would be in accordance with policies CS14 and DM1 of the MWCS, the key planning objective on environment in PPS10 and para 118 of the NPPF.
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1146. In addition, account needs to be taken of the implications of not proceeding with the proposed development. There would be nothing of a scale to replace the proposed project within the timescale in policy CS4 of the MWCS, with the environmental harm of waste being landfilled or else possibly exported from the County. The estimate of 6 years before an alternative scheme/ site could be brought forward appears realistic. In addition, NCC claims that the development might produce savings of about £8 million per year for the waste service. Whether or not there would be savings, the PFI credits would be key to the implementation of the MWCS and the sustainable management of Norfolk’s waste. Therefore, I give significant weight to the local financial considerations in this case.
1147. Since the inquiry, the WSSA has progressed and the Inspector’s Report received. The plan, as modified by the Inspector’s Report, has significant weight, and it would have full weight if adopted by NCC. Since the allocation of the site has been found to be part of a “sound” DPD by the Inspector, any decision taken as a result of this report would not be premature.
1148. All of the other matters considered, including visual impact, transport, historic heritage and socio-economic, are neutral in terms of the balance, although some limited weight should be attached to the 40 permanent jobs that would be created. The level of objection to the proposal, although not uncommon in such cases, is significant in this case and was the cause for the call-in of the application. Nevertheless, such objections have to be based on valid planning concerns. In the light of the findings above, I give this matter only limited weight.
1149. In final conclusion, there is substantial positive weight in terms of the proposal fulfilling an urgent need for infrastructure to sustainably manage Norfolk’s waste, as set out in the MWCS and in order to divert waste from landfill. It would be located, as one of the NAIs for Norfolk’s waste, in accordance with policy CS5 of the MWCS: and, would be on a site which was allocated in the draft WSSA, which the Inspector’s Report has found to be sound. This also attracts substantial positive weight. In addition, the proposal would also have substantial positive weight in terms of fulfilling the need for energy and in policy terms it would be renewable and low carbon which attracts further weight. It would also have further substantial weight in terms of CHP potential and limited weight as a result of job creation. The local financial considerations and the harm attached to delay to sustainable waste infrastructure for Norfolk also have significant weight. In terms of weight against the proposal, the perception of harm from health risk and flooding both have limited weight, as does the level of objection to the proposal. These would not outweigh the benefits of the scheme. All other issues are neutral in the planning balance. Given these conclusions, the proposal would constitute sustainable development and, given that there is no need for an AA, the presumption in favour of sustainable development in para 14 of the NPPF should be applied. As such, the application for planning permission should succeed.
Human rights
1150. There have been a number of more generally expressed views that local residents’ human rights would be adversely affected by the proposal, for example, by Mr Coote and Mr Dearling. These have been generally linked to the impact on health and would engage Article 2. However, no individual victims were named and as this is a prerequisite for a claim, it can be taken no further. In addition, as set out in paragraph 30 of PPS10, there would be little health risk from modern www.planningportal.gov.uk/planninginspectorate Page 243 Report APP/X2600/V/12/2183389
appropriately located, well-run and well-regulated waste facilities operated in line with current pollution control techniques and standards.
1151. Mr Wilkie and others also made more general claims about “equality of arms,” in particular the representation of the applicants and NCC by QCs, whereas most local objectors were not legally represented. This relates to Article 6, which seeks to ensure that people have an equal opportunity to put their case. Again, no specific victims were named. However, everyone who wished to speak at the inquiry had a reasonable opportunity to put their case. Having managed the inquiry event I consider that no such inequality was manifest.
Recommendation
1152. I recommend that planning permission is granted for an energy from waste and recycling facility at Willows Business Park, High (Saddlebow) Road, Saddlebow Industrial Area, King’s Lynn, PE34 3 RD, subject to the conditions set out in Annex B and that weight be attached to the submitted S106 agreement.
E A Hill INSPECTOR
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APPEARANCES
FOR THE APPLICANTS (CORY/WHEELABRATOR)
Mr R Phillips QC, Instructed by Claire Brook, Partner, assisted by Mr M Westmoreland Smith Dickenson Dees LLP, Leeds of Counsel
He called:
Mr J Boldon BSc(Hons), DipTP Cory Environmental
Mr C Goodrum BSc(Hons), LDA Design DipLA, MLI
Mr D Armitage BEng(Hons), SLR Consulting Ltd MICE, MBHS
Mr D Smyth BSc(Hons), Dip/MSc RPS Environmental Technology
Ms K Colebourn BSc(Hons), CBiol, EPR MiBiol, MIEEM
Prof J Bridges BSc(Hons), DSc, University of Surrey PhD, Hon DSc
Mr S Aumônier BSc(Hons), MSc ERM
Mr R Miles BSc(Hons), MSc, Roger Miles Planning Ltd DipTP, MRTPI
FOR NORFOLK COUNTY COUNCIL (WASTE PLANNING AUTHORITY)
Mr N Cameron QC Instructed by Ms F Croxen, nplaw, NCC
He called:
Mr M Broomfield BA(Hons), PhD Ricardo-AEA
Mr R Smithers BSc(Hons) Ricardo-AEA
Ms C Jeffery BA(Hons), MSc, MSc Principal Planner (Policy), NCC
Mr N Palmer BA(Hons), MRTPI Principal Planner, NCC
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FOR THE BOROUGH COUNCIL OF KING’S LYNN & WEST NORFOLK
Ms N Lieven QC, Instructed by Borough Solicitor, assisted by Mr G Williams of Counsel BC
She called:
Mr J Hollister BA(Hons), MA, CEnv, URS MRTPI, WCIWM
Mr J Robinson BSc(Hons), MSc, URS CIWEM, MCIWEM, C.Sci
Dr I Campbell BSc(Hons), MSc, PhD, URS CGeol, FGS
Mr R Billson BSc(Hons) Material Works Ltd
FOR KING’S LYNN WITHOUT INCINERATION (KLWIN)
Ms C Goodyear, Solicitor Instructed by KLWIN
She called:
Dr D Hogg MA, MSc, PhD Eunomia
Mr R Burton MSc, AIEMA Burton Environmental Consulting Ltd
Mr A Bramwell CEng, MIET, BSc(Hons)
Mr S Hughes BSc(Hons), MSc, AIEMA
Mr C Stevenson BSc(Hons), PGCE
Prof V Howard, MB, ChB, PhD, Consultant toxico-pathologist FRCPath
INTERESTED PERSONS
Mr H Bellingham, MP
Ms E Truss, MP
Mr R Howitt, MEP
Mr Kratz, Solicitor on behalf of Ms Phillips, Mr Greene & Ms Oliver
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Mr W Boyd BSc MSc Norfolk Wildlife Trust
Mr P Morgan Local resident
Mr J Reed Local resident
Mr C Whittred Local businessman
Ms P Johnson Local resident
Ms J Perryman Local resident
Mr C Davies Local resident
Cllr N Daubney Leader, BC
Ms S Buck Local resident
Mr R Brown Local farmer
Mr M Nurse Local resident
Cllr P Foster BC
Mr P Williamson Local resident
Mr J Doubleday Local farmer
Mr J Oliver Local resident
Rev W Howard Local resident
Ms A Reeve Local resident
Ms E Crowther Local resident
Mr J Dickie Green Energy Parks
Ms J Leamon Vice-chair W Norfolk Patient Partnership, Chair N Runcton PC
Mr M Coote Local resident
Mr and Mrs Skerritt Local residents
Cllr A Kemp NCC
Ms J Franklin Local resident
Mr B Clark Chair, Sedgeford PC
Mr S Fox Local resident www.planningportal.gov.uk/planninginspectorate Page 247 Report APP/X2600/V/12/2183389
Mr J Elliott Local resident
Mr J Dearling Local resident
Mr J Preston Local resident
Mr E Tonkyn Local resident
Mrs B Knights Local resident
Mr S Wilkie Local resident
Mr I Wagenknecht Local resident
Cllr G McGuiness BC
Mrs S Pomeroy OBE Local resident
Ms L Barnes xprds
Ms J Knights Local resident
Mr R Coates Local resident
Mrs C Hall Local resident
Ms J Rust King’s Lynn & District Trades Council
Mr P Johnson Local resident
Mr and Mrs J Smiter Local residents
Mr D Dennis Local resident
Mr P Espin former Chair, Wash Estuary Strategy Group
Dr J Mulhallen King’s Lynn & Wisbech StoptheWar
Mr R Morrish BSc(Hons), Dip LA, Leziate, Wiggenhall St Germans, Castle MA, MA, MLI Acre, Flitcham, Old Hunstanton, East Winch, Swanton Morley, Magdalen, Grimston & Roydon PCs
Cllr G Watt BC (presented by Mr M Knights)
Mr M Knights Local resident
Mr and Mrs P Knights Local farmers
Mr N Linge Brancaster PC www.planningportal.gov.uk/planninginspectorate Page 248 Report APP/X2600/V/12/2183389
Mr de Whalley Grimston, Congham & Roydon Residents’ Association
Mr P Moore King’s Lynn & District Round Table
Mr Alderson Downham & Villages in Transition
Dr P Devulapalli GP, King’s Lynn
Mr P Gidney Local resident
Mr S Payne Local resident
Mr M Fuller Chair Middleton PC (on behalf of North Runcton parishes)
Ms C Williams Local resident
Ms A Cooke & 3 Yr 10 students Local residents (Nathan Gardiner, George Boughton, Dominic McFarlane)
Mr D Pearce Local resident
Ms C Hunter Local resident
Mr V Moyse Local resident
Ms P Bramwell Local resident
Mr D Lefever Local resident
Ms A Phillips Local resident
Mr R Raab Local resident
Ms E Oliver Local resident
Ms J Hill Local resident
Ms S Turff Local resident
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INQUIRY DOCUMENTS LIST
STATEMENTS OF COMMON GROUND (SOCG) AND RELATED INQUIRY DOCUMENTS X1 SoS Call-in Letter X2 SoCG between Cory and Norfolk County Council X3 SoCG between Cory and Borough Council of King’s Lynn and West Norfolk X4 Not used X5 Notes of Pre Inquiry Meeting X6 Statement of Common Ground between Norfolk Wildlife Trust and Cory/Wheelabrator X7 Site Visit Information
PLANNING APPLICATION DOCUMENTS (ORIGINAL SUBMISSION 10 JUNE 2011) PA1 Planning Application Supporting Statement PA2 Environmental Statement PA3 Environmental Statement - Appendices 1 of 4 PA4 Environmental Statement - Appendices 2 of 4 PA5 Environmental Statement – Appendix 3 of 4 PA6 Environmental Statement – Appendices 4 of 4 PA7 Stand Alone Documents - Carbon Assessment - Design and Access Statement - Health Impact Assessment - Statement of Community Engagement - Sustainability Appraisal - Travel Plan - Utilities Assessment PA8 Figures
PLANNING APPLICATION DOCUMENTS (SUBMITTED 13 JANUARY 2012) PA9 Part A: Supplementary Planning Application Supporting Statement PA10 Part B: Additional Environmental Information and Clarification PA11 Part B: Appendices 1-11 PA12 Part B: Appendices 12 -17 PA12a Updated Statement of Community Engagement
PLANNING APPLICATION DOCUMENTS (SUBMITTED APRIL 2012) PA13 Supplementary Information (Verification Reports) submitted by the applicant to NCC
PLANNING APPLICATION (ADDITIONAL DOCUMENTS AND CORRESPONDENCE) PA14 Scoping Opinion letter from NCC to Cory Environmental 8 February 2011 PA15 Letter from NCC to RPS 22 November 2011 PA16 Letter from NCC to RPS 31 July 2012
PLANNING APPLICATION DOCUMENTS (SUBMITTED DECEMBER 2012) PA17 Noise Additional Baseline Survey 2012 PA18 Summary and Update to Protected Species Surveys PA19 Cumulative Landscape and Visual Impact Assessment
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PA20 Wildlife Area Outline Management Plan PA21 Update to draft Construction and Decommissioning Environmental Plan Text Ecology
TECHNICAL CONSULTANTS REPORTS COMMISSIONED BY NCC AND BCKLWN T1 Adams Hendry Consulting Limited Environmental Statement Review T2 Adams Hendry Consulting Limited - Additional Information and Clarification Review T3 AEA Review of potential impacts on air quality, human health and nature conservation of proposed Willows Power and Recycling Centre, King’s Lynn T4 AEA Update to review of potential impacts on air quality, human health and nature conservation of proposed Willows Power and Recycling Centre, King’s Lynn T5 Air Quality Consultants Review of Air Quality Assessment (2011): Willows Power and Recycling Centre, King’s Lynn T6 Air Quality Consultants Review of Further Information Submitted in Support of the Air Quality Assessment (2011): Willows Power and Recycling Centre, King’s Lynn T7 Air Quality Consultants Note on Clarification to NCC (2012)
STATUTORY CONSULTATION DOCUMENTS, RESPONSES AND THIRD PARTY REPRESENTATIONS S1 Copies of public notices S2 Statutory Consultation Responses S3 Parish Council Consultee Responses S4 Bundle of third party representations since Call In
COMMITTEE REPORTS AND MINUTES M1 NCC Report to Planning (Regulatory) Committee, together with Appendices 1 to 8 (June 2012) M2 NCC Minutes of the Planning (Regulatory) Committee (June 2012) M3 BCKLWN Report to the Development Control Board (July 2011) M4 BCKLWN Minutes of the Development Control Board (July 2011) M5 BCKLWN Report to the Planning Committee (March 2012) M6 BCKLWN Minutes of the Development Control Board (March 2012) M7 BCKLWN Report to the Planning Committee (April 2012) M8 BCKLWN Minutes of the Development Control Board (April 2012)
DEVELOPMENT PLAN POLICY DOCUMENTS D1 Norfolk Minerals and Waste Core Strategy and Development Management Policies Development Plan Document 2010-2026 D2 King’s Lynn and West Norfolk Local Plan Saved Policies (1998) D3 King’s Lynn and West Norfolk Core Strategy (2011)
LOCAL POLICY DOCUMENTS AND RELATED GUIDANCE G1 East of England Plan - The Revision to the Regional Spatial Strategy for the East of England G2 East of England Plan >2031 Draft revision to the Regional Spatial Strategy for the East of England G3-5 Not used
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SUPPORTING DOCUMENTS FOR THE NORFOLK MINERALS AND WASTE CORE STRATEGY G6 Core Strategy and Minerals and Waste Development and Management Policies Development Plan 2010-2025 G7 Core Strategy and Minerals and Waste Development and Management Policies Development Plan 2010-2026 G8 Norfolk County Council Minerals and Waste Development Framework Statement of Community Involvement April 2012 update G9 Planning Inspector’s Report on the Examination into the Norfolk Core Strategy and Minerals and Waste Development Management Policies Development Plan Document (August 2011) G10 Study into Commercial and Industrial Waste Arisings; ADAS (April 2009) G11 Jacobs figures on C/I waste arisings for DEFRA 2009 G12 Detailed Assessment of East of England Waste Arisings for the East of England Regional Assembly; Urban Mines (March 2009) G13 Norfolk Minerals and Waste Development Framework Core Strategy and Minerals and Waste Development Management Policies Development Plan Document 2010-2025 Waste Data Evidence Base G14 Norfolk Minerals and Waste Development Framework Core Strategy and Minerals and Waste Development Management Policies Development Plan Document 2010-2026 Revised Waste Data Evidence Base G15 Norfolk Minerals and Waste Development Framework Core Strategy and Minerals and Waste Development Management Policies Development Plan Document 2010- 2026 Revised Combined Strategic Flood Risk Assessment G16 Policy CS4 - note to set out the calculations in support of the non-hazardous waste management figures in this policy G17 Joint Municipal Waste Management Strategy for Norfolk 2006 – 2020 including appendices G18 Norfolk Minerals and Waste Development Framework (November 2012) Eighth Annual Monitoring Report G19 Not used G20 Appendix A Norfolk Core Strategy and Minerals and Waste Development Management Policies Development Plan Document, Schedule of Norfolk County Council’s Proposed Minor Changes, PC126, PC127, PC133 G21 Norfolk County Council (2011) Draft Norfolk Minerals and Waste Development Framework Core Strategy and Minerals and Waste Development Management Policies Development Plan Document 2010-2025, publication, paragraph 3.14, April 2010 G22 Norfolk Waste Partnership (2006) Joint Municipal Waste Management Strategy for Norfolk, Core Document (extracts) G23-25 Not used
DRAFT NCC WASTE SITE SPECIFIC ALLOCATIONS DPD G26 Norfolk Minerals and Waste Development Framework Waste Site Allocations Development Plan Document: 2011: Pre-Submission G27 Norfolk Minerals and Waste Development Framework Waste Site Allocations Development Plan Document: February 2008: Issues and Options
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G28 Norfolk Minerals and Waste Development Framework Waste Site Allocations Development Plan Document: October 2009: Further Issues and Options (Preferred Options) G29 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations - Development Plan Document: May 2011: Revised Further Issues and Options G30 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations - Development Plan Document: February 2012: Pre-Submission Statement of Consultation G31 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations - Development Plan Document: September 2012: Pre-Submission Statement of Consultation (part 2) G32 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations Development Plan Document: Focused Changes G33 Proposal map revisions as a result of the Additional Modifications and proposed Focused Changes G34 Additional (Minor) Modifications to Pre-Submission Waste Site Specific Allocations G35 Inspector’s Report G36-38 Not used
SUPPORTING DOCUMENTS FOR THE NORFOLK WASTE SITE SPECIFIC ALLOCATIONS DPD G39 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations Development Plan Document: December 2011: Flood Risk at Potential Waste Sites: Sequential and Exception Tests G40 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations Development Plan Document: November 2012: Pre-Submission: Addendum: Proposed Focused Changes Statement of Consultation G41 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations: February 2012: 2011 Public Consultation Comments and Norfolk County Council’s Responses G42 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations Development Plan Document: December 2011: Habitats Regulations Assessment Regulation 61 of the Conservation of Habitats and Species Regulations 2010 together with Appendix A G43 Norfolk Minerals and Waste Development Framework Waste Site Specific Allocations Development Plan Document: March 2011: Habitats Regulations Assessment Regulation 61 of the Conservation of Habitats and Species Regulations 2010 together with Appendix B and C G44-48 Not used
BOROUGH COUNCIL OF KING’S LYNN AND WEST NORFOLK POLICY DOCUMENTS G49 BCKLWN Draft Site Specific Allocations and Policies Development Plan Document: September 2011: Issues and Options Consultation G50 King’s Lynn and West Norfolk Strategic Flood Risk Assessment (2007/8 Revision) (complete document) G51 King’s Lynn and West Norfolk Borough Landscape Character Assessment; Chris Blandford Associates G52 Connecting Norfolk – Norfolk’s Transport Plan for 2026 G53 Strategic flood Risk Assessment Protocol between BCKLWN and Environment Agency 2012
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G54 Strategic flood Risk Assessment Protocol between BCKLWN and Environment Agency 2009 G55-59 Not used
OTHER NORFOLK DEVELEPMENT PLAN DOCUMENTS G60 South Norfolk Site Specific Policies and Allocations DPD Stage 2 G61 Norwich Site Allocations and Site Specific Policies DPD Draft for consultation: January 2011 G62 Attleborough and Snetterton Area Action Plan G63 Broadlands Site Allocations DPD – Shortlisted Sites G64 Breckland Core Strategy and Development Control Policies Document G65 Norfolk Employment Land Monitoring Report: 2010-2011 G66 Great Yarmouth Strategic Flood Risk Assessment
NATIONAL PLANNING, WASTE AND ENERGY POLICY AND GUIDANCE DOCUMENTS U1 National Planning Policy Framework (NPPF) (March 2012) U2 Technical Guidance to the NPPF (March 2012) U3 National Policy Statement EN – 1 Overarching National Policy Statement for Energy (July 2011) U4 National Policy Statement EN – 3 Renewable Energy Infrastructure (July 2011) U5 Planning Policy Statement 10 – Planning for Sustainable Waste Management (2011) U6 Planning Policy Statement 10 Companion Guide (2006) U7 Update to Planning Policy Statement 10 (2011) U8 draft Updated National Planning Policy: Planning for Sustainable Waste Management (July 2013) U9 Not used U10 Planning Policy Statement 25 (2010) (now cancelled) U11 Planning Policy Statement 25: Development and Flood Risk – Practice Guide (2009) U12 Circular 06/05 Government Circular: Biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System (2005) U13 Circular 2/99 Environmental Impact Assessment (2005) U14 The Planning System – General Principles (2005) U15 National Infrastructure Plan (2011) U16 Ministerial Statement – Planning for Growth (2011) U17 DEFRA Mainstreaming sustainable development –The Government’s vision and what this means in practice (2011) U18 DCLG letter to chief planning officers regarding National Policy Statements (2009) U19 Circular 03/2009: Costs Awards in Appeals and other Planning Proceedings together with December2012 addendum U20 DECC, 2011, National Policy Statement for Fossil Fuel Generating Infrastructure (EN-2), paragraph 2.3.6 U21-22 Not used WASTE SPECIFIC ASSOCIATED DOCUMENTS U23 Government Review of Waste Policy 2011 and Action Plan U24 Waste Strategy for England 2007 and Supporting Annexes U25 Consultation on the introduction of restrictions on the landfilling of certain wastes (2010) U26 DEFRA Applying the Waste Hierarchy evidence summary pb13530 2011 (Extracts)
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U27 DEFRA, Local Authority Municipal Waste Statistics as published annually on DEFRA website including press release for 2011-2012 statistics (complete document) U28 DEFRA, 01/2009, Waste Infrastructure Delivery Programme Information Note on Combined Heat and Power, page 7 U29 draft Waste Management Plan for England (July 2013) U30 DCLG Guidance for local planning authorities on implementing planning requirements of the European Union Waste Framework Directive (2008/98/EC) U31 Planning for Waste Management Facilities: A Research Study; ODPM (2004) U32 Energy from Waste: A guide to the debate: Feb 2013; DEFRA U33 Forecasting 2020 waste arisings and treatment capacity; DEFRA (2013) U34 Incineration of Municipal Solid Waste: Feb 2013; DEFRA U35 Not used ENERGY SPECIFIC ASSOCIATED DOCUMENTS U36 UK Renewable Energy Strategy 2009 U37 Meeting the Energy Challenge – Energy White Paper U38 Planning Our Electric Future – Energy White Paper U39 Renewables Road Map U40 UK Low Carbon Transition Plan, National Strategy for Climate and Energy – Energy White Paper U41 Quality Assurance for Combined Heat and Power Guidance Note 44 U42 Unallocated U43 DECC, 2012, Fuel Mix Disclosure Table: 3. Environmental Impact Carbon Dioxide Emissions U44 DEFRA/DECC/DfT 04/2012 UK Bioenergy Strategy U45 Unallocated U46 Parliamentary Office of Science & Technology, 06/2011, Post Note Update: Carbon Footprint of Electricity Generation, Number 383 U47 UK Renewable Energy Roadmap Update 2012 together with Annex A: Progress on Actions
LEGISLATION AND CASE LAW L1 Environmental Permitting (England and Wales) Regulations 2010 L2 Town and Country Planning (Environmental Impact Assessment) Regulations 1999 L3 Town and Country Planning (Environmental Impact Assessment) Regulations 2011 L4 EU Directive 1999/31/EC on the Landfill of Waste (Landfill Directive) L5 EU Directive 2000/76/EC (Waste Incineration Directive) L6 EU Directive 2008/98/EC on Waste (Revised Waste Framework Directive) L7 Landfill (Maximum Landfill Amount) Regulations 2011 L8 Waste (England and Wales) Regulations 2011 L9 EU Directive 2009/28/EC on the promotion of the use of energy from Renewable Sources - (Renewables Directive) L10 EU Directive 2004/8/EC on the promotion of cogeneration based on a useful heat demand in the internal energy market L11 Conservation of Habitats and Species Regulations 2010 L12 Council Directive 92/43/EC on the Conservation of Natural Habitats and of Wild Fauna and Flora (‘Habitats Directive’) L13 Wildlife and Countryside Act 1981 – extract L14 The Persistent Organic Pollutants Regulations 2007 L15 “Waddenzee Judgment” - Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij; ECJ C-127/02 [204] All ER (D) (Sep) L16 Directive 2010/75/EU on industrial emissions (integrated pollution prevention and www.planningportal.gov.uk/planninginspectorate Page 255 Report APP/X2600/V/12/2183389
control) (Articles 42 to 55 and Annex VI Part 6) L17 Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe (Annex XI) L18 Directive 2004/107/EC relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air (Annex I) L19 The Air Quality Standards Regulations 2010 (SI 2010 No. 1001) (Schedule 2) L20 Council of the European Union (2011) Commission Decision of 18 November 2011 establishing rules and calculation methods for verifying compliance with the targets set in Article 11(2) of Directive 2008/98/EC of the European Parliament and of the Council, Annex 2, OJEU L 310/11, 25.11.2011 L21 Judgment of the Court (Fifth Chamber) of 13 February 2003 in Case C-458/00: Commission of the European Communities v Grand Duchy of Luxembourg. Official Journal of the European Union, C83, page 2, 5 April 2003 L22 Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions, Energy Efficient Plan 2011, March 2011, COM(2011) 1909 final, Brussels, 8.3.2011, section 4 3rd paragraph L23 House of Commons, Energy Bill, Chapter 8, paragraph 38 (2)
ENVIRONMENTAL PERMIT AND RELATED ENVIRONMENT AGENCY GUIDANCE DOCUMENTS E1 Environmental Permit Reference EPR/PP3633FJ E2 Environmental Permit Reference EPR/PP3633FJ Decision Document E3 Environmental Permit Reference EPR/PP3633FJ Draft Decision Document E4 EA Flood Zone Maps E5 Integrated Pollution Prevention and Control (IPPC) Environmental Assessment and Appraisal of BAT IPPC H1- Horizontal Guidance Note E6 Environmental Permitting Regulations (EPR) – H1 Environmental Risk Assessment - Annex F E7 Environmental Permitting Regulations (EPR) – H1 Environmental Risk Assessment - Annex K E8 Integrated Pollution Prevention and Control Reference Document on the Best Available Techniques for Waste Incineration, August 2006 (pages 155 and 156) E9 Environment Agency, LFTGN 03 ‘Guidance on Management of Landfill Gas’ – Extracts regarding methane/LFG loss and collection efficiencies E10 Landfill methane loss data from Environment Agency submitted by operators in accordance with Environmental Permits, including summary tables developed by R Burton E11 Environment Agency, Great Ouse Tidal River Strategy, Sept 2009 E12 Environment Agency, ‘Tidal River Hazard Mapping’, Breach location 8, inclusive of climate change, 2011 E13 Schedule 5 Notice together with Response E14 Cory Environmental/Wheelabrator/RPS (2011) Environmental Permit Application: Main Permit Application, Willows EfW Facility, para 1.2.3 including Appendix K
WASTE CONTRACTS AND ASSOCIATED DOCUMENTS J1 NCC and Willows Power & Recycling Ltd Residual Waste Treatment Contract (redacted version) including schedules 1, 4, 26 and 30 J2 Residual Waste Treatment Contract Information Note J3 Norfolk County Council, 2009, Provision of Residual Waste Treatment Services, Invitation to Submit Detailed Solutions, Part 4: Revised Descriptive Document (re waste composition) www.planningportal.gov.uk/planninginspectorate Page 256 Report APP/X2600/V/12/2183389
J4 Norfolk County Council (2009) revised Outline Business Case for PFI Credits for the Residual Waste Treatment Project, section 1.3 (Table 1.1), section 2.3, 10 February 2009 (complete document) J5 NCC, 07/2011, Application for Private Finance Initiative Credits Final Business Case (complete document) J6 Appendix A to DEFRA WIDP Final Business Case Template containing DEFRA Criteria for Securing Waste PFI Credits J7 BCKLWN and Material Works Ltd Contract including Method Statements J8 Bundle of correspondence with DEFRA regarding satisfaction of the PFI criteria
CARBON ASSESSMENT AND R1 COEFFICIENT DOCUMENTS R1 Guidelines on the Interpretation of the R1 Energy Efficiency Formula for Incineration Facilities Dedicated to the Processing of Municipal Solid Waste According to Annex II of Directive 2008/98/EC on Waste, European Commission R2 RPS, 06/12/12, Carbon Technical Note re Mr Richard Burton’s letter to NCC of 17th August 2011 R3 RPS, 29/05/12 Technical Responses to Mr Richard Burton’s OBJection to Norfolk County Council dated 16/04/12 - KLWIN and NCC R4 ERM, 2006, ‘Carbon Balances and Energy Impacts of the Management of UK Wastes’ DEFRA R&D Project, WRT 237 – Pages 22-23 R5 Burton R, 16/04/12, File note of conversation with ERM staff on Environment Agency WRATE Helpline, confirms use of 25% methane loss in WRATE software R6 Eunomia Research & Consulting Ltd, final report to KLWIN Climate Change Impacts of the Willows Power and Recycling Centre and Competing Alternatives R7 Burton R, 28/06/12, E-mail to Mike Jackson and Nick Palmer (10.43am) R8 Eunomia, 10/2012, Scoping Study: Climate Change Impacts of Willow Power & Recycling Centre R9 Environment Agency (2012) Briefing Note: Qualifying for R1 Status Using the R1 Energy Efficiency Formula, Version 2, page 3 (top of) – April 2012
ECOLOGY DOCUMENTS Z1 Roydon Common and Dersingham Bog Special Area for Conservation Map (EPR) Z2 Not used Z3 Managing Natura 2000; European Commission Z4 Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC Z5 Communication from the Commission on the Precautionary Principle Z6 DCLG Planning for the Protection of European Sites Z7 Study into Hazard Classification of UK IBA; Water Research Centre Z8 NWT Management Plan for Roydon Common and Dersingham Bog April 2010 – March 2015 Z9 Norfolk Biodiversity Action Plan Z10 Norfolk County Council, “Appropriate Assessment, Regulation 61 of the Conservation of Habitats and Species Regulations 2010, Article 6(3) of the Habitats Directive 92/43/EEC, Reference C/2/2011/2020, The Willows Business Park, High (Saddlebow) Road, King’s Lynn Z11 AEA Report for NCC. Screening out emissions to air as insignificant for nature conservation
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AIR QUALITY DOCUMENTS Q1 Monitoring of Particulate Matter in Ambient Air around Waste Facilities Technical Guidance Document (Monitoring) M17 – Extract Q2 AQTAG 06 Technical Guidance on Detailed Modelling Approach for an Appropriate Assessment for emissions to air Q3 Development Control Planning for Air Quality (2010 Update); Environmental Protection UK Q4 Local Air Quality Management Detailed/Further Assessments BCKLWN Q5 Local Air Quality Management Further Assessment of the Gaywood Clock AQMA BCKLWN Q6 Unallocated Q7 Characterisation of ultrafine particles from a waste incinerator plant Science for Environment Policy February 2012 Q8 Mayor of London, 2006, The Control of Dust and Emissions from Construction and Demolition, Best Practice Guidance (page 14) Q9 Institute of Air Quality Management, Guidance on the Assessment of the Impacts of Construction on Air Quality and the Determination of their Significance, January 2012 (Chapters 8 and 9) Q10 DEFRA, 2009, Local Air Quality Management Technical Guidance LAQM.TG(09) (pages 1-8 to 1-9, Chapter 6 and Annex 3) Q11 Environment Agency, Conversion ratios for NOx and NO2 Q12 Highways Agency, May 2007, Design Manual for Roads and Bridges. Volume 11 Environmental Assessment. Section 3. Part 1, HA 207/07 Air Quality (Annex D) Q13 NPL, 2010, Report to Defra: Annual Report for 2009 on the UK Heavy Metals Monitoring Network (page 29) Q14 Expert Panel on Air Quality Standards, 2009, "Metals and Metalloids," (page 99) Q15 Cambridge Environmental Resource Consultants Ltd, ADMS model user guide (page 1) Q16-18 Not used Q19 Brown K, Cardenas L, MacCarthy J, Murrells T, Pang Y, Thistlethwaite G, Thomson A and Webb N, 04/2012, UK Greenhouse Gas Inventory, 1990 to 2010: Annual Report for Submission under the Framework Convention on Climate Change – Section 8.2.3, page 238 Q20 Scotland & Northern Ireland Forum for Environmental Research (SNIFFER), Prof. Duncan Laxen et al., PM2.5 in the UK, December 2010 Q21 HM Treasury / DECC, 2011, Valuation of Energy Use and Greenhouse Gas Emissions for Appraisal and Evaluation, and associated toolkit – Extracts regarding carbon intensity factors for policy analysis Q22 Grosso M, Biganzoli L and Rigamonti L, 2011, A Quantitative Estimate of Potential Aluminium Recovery from incineration Bottom Ashes, Resources Conservation and Recycling, 55, pp1178-1184 Q23 DECC, Emissions Performance Standard, explanatory note, page 1, 2nd paragraph under section ‘Legislative proposal’ Q24 DECC/HM Treasury, 2012, Valuation of Energy Use and Greenhouse Gas emissions for Appraisal and Valuation
HEALTH DOCUMENTS H1 Department for Environment, Food and Rural Affairs (DEFRA), 2004, Review of Environmental and Health effects of Waste Management: Municipal Solid Waste and Similar Wastes H2 HPA 2009 The Impact on Health for Emissions to Air from Municipal Waste Incinerators www.planningportal.gov.uk/planninginspectorate Page 258 Report APP/X2600/V/12/2183389
H3 Her Majesty’s Inspectorate on Pollution, Assessment of Dioxin Releases from Municipal Waste Incineration, 1996 (page 79) H4 Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment, Statement on the Tolerable Daily Intake for Dioxins and Dioxin-like polychlorinated biphenyls, 2001 (pages 20-21) H5 Javier Garcia-Perez, cancer mortality in towns in the vicinity of incinerators and installations for the recovery or disposal of hazardous waste, Environment International, 2013; 51:31-44
PLANNING PERMISSIONS, APPEAL AND DECC/IPC DECISIONS A1-3 Not used A4 “Shrewsbury decision” – Inspector’s Report and appeal decision in relation to an Energy from Waste facility and Household Recycling Centre at Battlefield Enterprise Park, Vanguard Way, Shrewsbury, Shropshire (Reference: APP/L3245/A/11/2146219) A5 “Sinfin Lane decision” – Inspector’s Report and appeal decision relating to a waste treatment facility at land adjacent to 1-5 Railway Cottages, Sinfin Lane, Sinfin, Derby. Inspector’s Report. (Reference APP/C1055/A/10/2124772 - Planning Inspectorate, DER/05/09/00571/PRI – Derby County Council) A6 “Cornwall decision” – SoS decision to grant planning permission on appeal for a waste to energy plant including a bottom ash facility and a bulking up facility at land at Rowstowrack Farm and land at Wheal Remfry and Goonvean and Parkandillick Dryers, St Dennis, Cornwall. Inspector’s Report and Secretary of State’s Decision Letter. (Reference APP/D0840/A/09/2113075 – Planning Inspectorate, 08/00761 – Cornwall Council) A7 “Avonmouth decision” – SoS decision to grant planning permission on appeal for a resource recovery centre including a materials recycling facility and an energy from waste and bottom ash facility at the former Sevalco Site (North), Severn Road, Avonmouth, Bristol. Inspector’s Report and Secretary of State’s Decision Letter. (Reference APP/Z0116/A/10/2132394 – Planning Inspectorate, 09/04470/F – Bristol City Council) A8 “Ardley Landfill decision” Viridor, Oxfordshire – Reference APP/U3100/A/09/ 2119454; 08/02472/CM A9 “Salford decision” – Green lane appeal decision Reference APP/U4230/A/11/ 2162115 and APP/U4230/A/11/2162103 A10 “Rookery South decision” - IPC Panel decision and statement of reasons on granting a Development Consent Order for an energy from waste plant at Rookery South Pit in Bedfordshire (Reference EN0100011) A11 “Hartlebury decision” – SoS decision to grant planning permission for an energy from waste facility for the combustion of non hazardous waste and the recovery of energy at Plot H, 600 Oak Drive, Hartlebury Trading Estate, Hartlebury, Worcestershire. Inspector’s Report and Secretary of State’s Decision Letter. (Reference APP/E1855/V/11/2153273 – Planning Inspectorate, 10/000032/CM, Worcestershire County Council) A12 “Lostock decision” – Secretary of State Decision Letter – consent for a 60MW generating station at Lostock, Northwich, Cheshire. (Reference 12.04.09.04/35C) together with Planning Inspector’s Report Conclusions (Reference DPI/A0665/11/10 LI A0665) A13 “Kidderminster decision” – planning permission refused and appeal dismissed for an integrated waste management facility at British Sugar Site, Stourport Road, Kidderminster (Reference APP/E1855/A/01/1070998 – Planning Inspectorate, 407511 (WF990/001) –Worcestershire County Council) www.planningportal.gov.uk/planninginspectorate Page 259 Report APP/X2600/V/12/2183389
A14 “Middlewich decision” - SoS decision to dismiss an appeal against the refusal of planning permission for an energy from waste facility at land off Pochin Way and land to the south of Erf Way and North of Cledford Lane, Middlewich. Inspector’s Report and Secretary of State’s Decision Letter. (Reference APP/R0660/A/10/2129865 and 2142388 – Planning Inspectorate, 09/0738/W – Cheshire East Council) A15 “Centrica B decision” – consent to construct and operate a combined cycle gas turbine generating station at King’s Lynn, Norfolk, Reference 01.08.10.04/124C A16 Not used A17 Centrica – Proposed Plant Layout – Project 63972 – Drg # 0 GB 19122 – Rev A 07-10-2010 A18 “Rufford decision” – Inspector’s Report and Secretary of State’s Decision Letter in relation to an Energy from Waste facility at Rufford Colliery - (Reference APP/L3055/V/09/2102006) A19 “Severnside decision” – Inspector’s Report (including Costs Report) and Secretary of State’s Decision Letter in relation to an Energy Recovery Facility at Severnside, Gloucestershire (Reference APP/P0119/A/10/2140199) A20 “Inneos Chlor decision” – Secretary of State’s Decision letter in relation to an energy from Waste Combined Heat and Power Generating Station at Inneos Chlor, Runcorn, Cheshire - (Reference BERR Ref. 01.08.10.04/8C) A21 “Eastcroft decision” – Inspector’s Report and Secretary of State’s Decision Letter in relation to an Energy Recovery Facility at Eastcroft, Nottingham - (Reference APP/Q30601/A/08/2063129) A22 “Ince Marshes decision” – Inspector’s Report and Secretary of State’s Decision Letter in relation to a Refuse Derived Fuel Generating Station at Ince Marshes, Cheshire - (Reference APP/Z0645/A/07/209471) A23 “Wadlow Farm decision” – Inspector’s Report and Secretary of State’s Decision Letter in relation to the erection of thirteen wind turbines at Wadlow Farm, South Cambridgeshire (Reference APP/W0530/A/07/2059471) A24 “Kings Cliffe decision” – Inspector’s Report and Secretary of State’s Decision Letter in relation to the disposal of low level radioactive waste by landfilling at ENMRF, King’s Cliffe, Northamptonshire A25 “Liverpool decision” – Inspector’s Report and appeal decision relating to a Resource Recovery Park (RRP) including building construction and plant installation for the treatment, recycling and recovery of municipal and commercial wastes with an annual processing capacity of 150,000 tonnes at Land adjacent to Stalbridge Dock, Dock Road, Port of Garston, Liverpool.(Reference APP/Z4310/A/09/2117527 application – Planning Inspectorate and Reference 09F/1012 – Liverpool City Council)
LANDSCAPE DOCUMENTS V1 Guidelines for Landscape and Visual Impact Assessment, Second Edition, Landscape Institute of Environmental Management and Assessment, 2002 (GLAVIA) V2 Landscape Character Assessment Guidance for England and Scotland, Scottish Natural Heritage and the Countryside Agency, 2002 V3 Landscape Character Assessment Guidance for England and Scotland, Topic paper 6 – Techniques and Criteria for Judging Capacity and Sensitivity, SNH/CA V4 Designing Waste Facilities, a guide to modern design in waste, Enviros, 2008
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MISCELLANEOUS Y1 KLWIN Request for Information – Willows Power and Recycling Centre response including Appendix A: WRATE Output Report Y2 KLWIN Request for Information – NCC response Y3 Unallocated Y4 Unallocated Y5 Unallocated Y6 Palm, W, 10/04/12, Letter to Dr Martin Little Y7 Palm, W, 02/08/12, Letter to Ms Jenny Perryman Y8 Eastern Daily Press, 17/05/12, ‘Palm Paper Denies It Will Buy Power From King’s Lynn Incinerator’ Y9 Eastern Daily Press, 06/09/12, ‘New Twist In Incinerator Saga: King’s Lynn Palm Paper Opt to Build Own Energy Plant’
PROOFS OF EVIDENCE/ DOCUMENTS
CORY ENVIRONMENTAL MANAGEMENT LTD C1 Statement of Case on behalf of the Applicant C2 Opening Submission by Richard Phillips QC C3 Com res survey C4 Email from the EA clarifying the status of the draft Great Ouse Tidal River Strategy C5 EA Note Great Ouse Catchment Flood Management Plan C6 Letter dated 29th November 2011 from EA to King’s Lynn & West Norfolk BC C7 EA Note ‘Statement to the Hearing into the King’s Lynn & West Norfolk B. C. Core Strategy C8 Draft S106 Agreement C8a 2nd draft S106 C8b Final signed draft S106 C9 Planning Conditions (First Draft) C9a Planning Conditions (Second Draft) C9b Planning conditions (Fourth Draft) C9c Final draft of Planning Conditions dated 25 April 2013 (tracked change version) C9c Final draft of Planning Conditions dated 25 April 2013 (clean version) C10 John Boldon’s Proof of Evidence C11 John Boldon’s Appendices to Proof of Evidence C12 John Boldon’s Summary to Proof of Evidence C13 Rebuttal Evidence of John Bolden in respect of evidence of Mr John Hollister C14 Appendices to the Rebuttal Evidence of John Boldon in respect of the evidence of Mr Hollister C15 Response of John Boldon to the Rebuttal Evidence of Mr Mike Knights C16 Note on Wheelabrator in USA C17 Bundle of Company information on Mr Billson’s companies C18 Harling Road Snetterton – Cory Wheelabrator comments on potential layout plans C19 Response of John Boldon to the request made by Dr Ian Campbell on the potential of Willows PRC to supply Palm Paper with steam C20 Dan Smyth’s Proof of Evidence C21 Dan Smyth’s Appendices to Proof of Evidence C22 Dan Smyth’s Summary to Proof of Evidence C23 Errata to Dan Smyth’s Proof of Evidence C24 Dan Smyth’s Rebuttal Evidence C25 Carbon footprint erratum C26 Letter 18 Jan 2012, Daniel Smyth (RPS) to EA www.planningportal.gov.uk/planninginspectorate Page 261 Report APP/X2600/V/12/2183389
C27-29 Not used C30 Karen Colebourn’s Proof of Evidence C31 Karen Colebourn’s Appendices C32 Karen Colebourn’s Summary to Proof of Evidence C33 Karen Colebourn’s Rebuttal of Evidence C34 Karen Colebourn’s Rebuttal of Evidence Apprndices C35 Karen Colebourn’s Rebuttal Proof of Evidence in response to Norfolk Wildlife Trust C36 Karen Colebourn’s Appendices to Rebuttal Proof of Evidence - Norfolk Wildlife Trust C37 Draft Statement of Common Ground with Norfolk Wildlife Trust C38 Technical Note on the assessment of the potential effects on the fauna of the Wash, including harbour porpoise C39 Response to Norfolk Wildlife Trust by EPR C40 Colin Goodrum’s Proof of Evidence C41 Colin Goodrum’s Appendices to Proof of Evidence C42 Colin Goodrum’s Summary to Proof of Evidence C43-49 Not used C50 Derek Armitage’s Proof of Evidence C51 Derek Armitage’s Appendices to Proof of Evidence C52 Derek Armitage’s Summary to Proof of Evidence C53 Derek Armitage’s Rebuttal of Evidence C54 Derek Armitage’s Rebuttal of Evidence Flood Risk Appendices C55 Copies of Fig 9.7; 9.8; 9.9; 9.10 C56-59 Not used C60 Professor Jim Bridges’ Proof of Evidence C61 Professor Jim Bridges’ Appendices to Proof of Evidence C62 Professor Jim Bridges’ Summary to Proof of Evidence C63 Professor Jim Bridges, Rebuttal of Mr Howard C64 Examination of Two Publications on Health and Incineration C65-69 not used C70 Simon Aumonier’s Proof of Evidence C71 Simon Aumonier’s Appendices to Proof of Evidence C72 Simon Aumonier’s Summary to Proof of Evidence C73 Simon Aumonier’s Rebuttal of Evidence C74 Simon Aumonier’s Appendices to Rebuttal of Evidence C75 Note on Marginal Mix Electricity C76 Note on document K9 by Simon Aumonier C77 Letter from the Environment Agency dated 26 April 2013 regarding R1 status C78-79 Not used C80 Roger Miles’ Proof of Evidence C81 Roger Miles’ Appendices to Proof of Evidence C82 Roger Miles’ Summary to Proof of Evidence C83 Roger Miles’ Rebuttal of Evidence C84 Roger Miles’ Rebuttal of Evidence Appendices C85 withdrawn C85a Revised Note on 62.5% C86 Appendix A to Part 1 Invitation to Submit Final Tenders ~ Evaluation of Tenders C87 Extract of Mr Hollisters Proof of Evidence to Shrewsbury Inquiry C88 Alternative Sites Assessment – RAF Coltishall C89 Update on waste forecasts C90 Amount of C/I Waste not suitable for treatment by EFW C91 IBA Transportation www.planningportal.gov.uk/planninginspectorate Page 262 Report APP/X2600/V/12/2183389
C92 Response to condition proposed by KLWIN, Daniel Smyth C92a Amended version of C92 C93 Letter dated 9 January 2013 From Willows Power and Recycling Centre to Waitrose C94 Closing Submission on behalf of Cory Wheelabrator C95 Responses on WSSA Inspector’s Report and new national waste policy C96 Response of the applicants to KLWIN’s response on the WSSA Inspector’s Report and new national waste policy
NORFOLK COUNTY COUNCIL N1 Opening Submission on behalf of Norfolk County Council N2 Note for the Inspector on the selection of the venue for the Inquiry N3 Letter dated 25 April 2013 from nplaw confirming that the original representations lodged with the Inquiry are a true set N4-7 Not used N8 KL&WN BC response to Core Strategy (Policy CS 3) July 2010 N9 KL&WN BC response to Core Strategy (Policy CS 4) July 2010 N10 Nick Palmer Proof of Evidence N11 Nick Palmer Summary Proof of Evidence N12 Nick Palmer Appendices to Proof of Evidence N13 Nick Palmer Rebuttal of Evidence N14 Note on RAF Coltishall N14a Further note on RAF Coltishall N15-19 Not used N20 Caroline Jeffery Proof of Evidence N21 Caroline Jeffery Summary Proof of Evidence N22 Caroline Jeffery Appendices to Proof of Evidence N23-29 Not used N30 Mark Broomfield Proof of Evidence N31 Mark Broomfield Summary Proof of Evidence N32 Mark Broomfield Rebuttal of Evidence N33 Ambient monitoring of PM10 N34 National Implementation Plan for the Stockholm Convention on Persistent Organic Pollutants (April 2007) N35 National Implementation Plan for the Stockholm Convention on Persistent Organic Pollutants (draft December 2012) N36 Proportion of methane in landfill gas - clarification N37 Comment by Dr Mark Broomfield on “Stage 2: Judi Knights’ evidence for the Public Inquiry” N38 Response to statement by Paul Espin dated 15 April 2013 by Richard Smithers N39 Response to evidence of William Boyd , Norfolk Wildlife Trust and Stuart Wilkie by Richard Smithers N40 Richard Smithers Proof of Evidence N41 Richard Smithers Summary Proof of Evidence N42 Richard Smithers Rebuttal Evidence N43 King’s Lynn B CCGT Development – Centrica KL Limited N44 Responses to Mr Lefever’s questions N45 Minutes of Planning Committee – 17 August 2011 N46 Extracts from ADMS 4 User Guide N47 Response from the County Council dated 23 April 2013 to Norse Commercial Service’s letter of 19 April N48 Comment by Dr Mark Broomfield on Mr Bramwell’s remarks regarding surface www.planningportal.gov.uk/planninginspectorate Page 263 Report APP/X2600/V/12/2183389
roughness N49 Comments on the export of RDF to the Netherlands N50 Closing Submission on behalf of Norfolk County Council
KING’S LYNN AND WEST NORFOLK BOROUGH COUNCIL K1 Opening Submission on behalf of King’s Lynn and West Norfolk Borough Council K2 Energy from Waste Plans – What you need to know (EA) K3 Comparing the cost of alternative waste treatment options: Gate Fees Report 2010 K4 Comparing the cost of alternative waste treatment options: Gate Fees Report 2011 K5 Newspaper Article dated 1st March 2013 K6 Palm Paper Ltd – Scoping Report – Palm Paper PP3 CCGT K7 The Planning Inspectorate – Meeting Note – 15/11/2012 K8 Robin Palmer IQM letter dated 7 March 2013 K9 NCC Enviros Consult Ltd- Initial Business Care K10 Letter dated 11/12 /12 from Ray Harding to NCC K11 John Hollister Summary Proof of Evidence K12 John Hollister Proof of Evidence K13 John Hollister Appendices to Proof of Evidence K14 John Hollister Rebuttal Proof of Evidence K15 Table 1 – MSW and C&I Waste Forecasts K16 Review of the Ecological Basis for Rejecting Nitrogen Emitting Uses on Site WAS31 K17 Copy of Note Re “Local Poll” inc Ballot Paper K18 Note on OBC for PFI Credits for Rural Waste Treatment Project K19-20 Not used K21 Jon Robinson Summary Proof of Evidence K22 Jon Robinson Proof of Evidence K23 Jon Robinson Rebuttal of Evidence K24 Jon Robinson Hazard Mapping Appendix K25-30 Not used K31 Dr Ian Campbell Summary Proof of Evidence K32 Dr Ian Campbell Proof of Evidence K33 Dr Ian Campbell Appendices to Proof of Evidence K34 Rebuttal of Evidence K35.1 Plan for more capacity K35.2 Layout 1 Snetterton K35.3 Layout 2 Snetterton K35.4 Site – Broadland K35.5 Photomontage Shrewsbury site K35.6 Modern EfW plant K36 Steam and Power Export to Palm Paper K37 Harling Road, Snetterton – Rebuttal of Cory Wheelabrator Comments on potential layout plans K38-40 Not used K41 Robert Billson Summary Proof of Evidence K42 Robert Billson Proof of Evidence and Appendices K43 Robert Billson Rebuttal of Evidence K44 Enlarged Process Flow Diagram K45 Note by Robert Billson on C17 (Bundle of Company information on Mr Billson’s companies) K46 Rebuttal of letters of 19, 23 and 24 April from Norse Commercial Services and www.planningportal.gov.uk/planninginspectorate Page 264 Report APP/X2600/V/12/2183389
Norfolk County Council K47 Closing Submission on behalf of King’s Lynn and West Norfolk Borough Council K48 Supplementary Note by John Hollister
KING’S LYNN WITHOUT INCINERATION W1 Opening Submission on behalf of King’s Lynn Without Incineration W2 ENDS report extract: ENDS report 394, November 2007 W3 Lynn News Article dated 15th February 2011 W4 NCC Outline Business Case for PFI Credits for Phase Two of the Residual Waste Treatment Project (30th April 2008) W5 The Independent online article (28th December 2010) W6 Pennsylvania Department of Environmental Protection Press Release: Wheelabrator emissions violations (2005) W7 Massachusetts Department of Environmental Protection Press Release: Wheelabrator $7.5 million settlement (2nd May 2011) W8 Connecticut Attorney General’s Office Press Release: Waste Management Inc. $457 millions settlement (7th November 2001) W9 Defra Note on Recycling Rate W10 Extract from Carbon Balances and Energy Impacts of the Management of UK Waste Streams W11 Confirmation of Site Survey Roydon Common W12 Review of Transboundary Air Pollution W13 Email from EA dated 18th March 2013 W14 HM Treasury/DECC Note on Valuation of energy use and greenhouse gas emissions W15a Photograph of model of Centrica B (prevailing wind) W15b Photograph of model of Centrica B(view looking NW) W16 Note on Centrica B location W16a Note by Adrian Bramwell in response to Dr Broomfield W17 KLWIN response to CW regarding the conditions proposed by KLWIN regarding the Willows EfW Incinerator W18 Closing Submission on behalf of King’s Lynn Without Incineration W19 Responses on WSSA Inspector’s Report and new national waste policy W000-041 Richard Burton Proof of Evidence and Appendices W042-050 Richard Burton Rebuttal of Evidence W100-110 Professor C V Howard Proof of Evidence W200-210 Adrian Bramwell Proof of Evidence and Appendices W250 Adrian Bramwell Rebuttal of Evidence W300-308 Simon Hughes Proof of Evidence and Appendices W400-426 C R Stevenson Proof of Evidence and Appendices W450-451 C R Stevenson Rebuttal of Evidence W500 Dr Dominic Hogg Proof of Evidence and Appendices W550 Dr Dominic Hogg Rebuttal of Evidence and Appendices 552, 554, 555, 557 & 558 W551 Dr Dominic Hogg Rebuttal Environment Protection W559 Tables
INTERESTED PARTIES
REP/1 Letter from Breckland Council dated 23 April 2013 to the Inspector regarding the Borough Council’s Material Works contract
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SUP/1/1 Statement of Paul Morgan SUP/2/1 Letter dated 19 April 2013 from Norse Commercial Services SUP/2/1a Letter dated 24 April 2013 from Norse Commercial Services to Norfolk County Council SUP/3 Statement of Jeffrey Reed SUP/4 Craig Whittred SUP/4/1 Statement of Craig Whittred SUP/5 Pauline Johnson SUP/6 Sally Deverick SUP/7 Michael Castle SUP/8 Audrey Hudson and Alan Rasberry SUP/9 Statement of Dr John Burgess
OBJ1 Jennifer Perryman OBJ1/1 Statement of Jenny Perryman – Director of Public Health NHS Norfolk and PCT and appendices OBJ1/1a Supplementary statement - NCC and changing goalposts and appendices OBJ1/1b Not used (duplicate of OBJ1/1) OBJ1/1c&e J Perryman - further documentation OBJ1/1d Further statement of Jennifer Perryman OBJ2 Colin Davies OBJ2/1 Statement of Colin Davies OBJ3 Duplicate OBJ4 Cllr Nicholas Daubney OBJ4/1 Statement of Councillor Daubney OBJ4/1a Further statement of Councillor Daubney OBJ5 Sandra Buck OBJ6 Richard Brown OBJ6/1 Statement of Richard Brown OBJ7 Michael Nurse OBJ7/1 Statement of Michael Nurse OBJ8 Paul Foster OBJ8/1 Statement of Paul Foster OBJ9 Vernon Moyse OBJ9/1-1b Notes to the Inspector from March 2013 & e mail dated 22 May 2013 submitting ‘Ode to the Sulph’rous Incinerator’ OBJ10 Peter Williamson OBJ10/1 Statement of Peter Williamson OBJ11 Sally Rust OBJ12 John Doubleday OBJ12/1 Statement of John Doubleday OBJ12/1a Photographs OBJ13 Henry Bellingham MP OBJ14 Jonah Oliver OBJ14/1 Statement of Jonah Oliver OBJ15 Rev William Howard OBJ15/1 Statement of Rev William Howard OBJ16 Angela Reeve
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OBJ16/1 Statement of Angela Reeve OBJ17 Edith Crowther OBJ17/1 Statement of Edith Crowther OBJ18 Michael De Whalley (also 170/1) OBJ19 Mrs Oliver (see also Mr Kratz, OBJ166) OBJ20 Ms Reeves OBJ20/1 Submission from Ms Reeves OBJ21 Mrs Phillips (see also Mr Kratz) OBJ22 John Dickie OBJ22/1 Statement of John Dickie OBJ23 June Leamon on behalf of West Norfolk Patient Partnership OBJ23/1 Statement of June Leamon on behalf of West Norfolk Patient Partnership OBJ23/1a Amended statement OBJ23/1b Supplementary appendices OBJ24 Sheila Goodwin – Wiggenhall St Mary Magdalen PC OBJ25 John Martin OBJ26 Michael Coote OBJ26/1 Statement of Michael Coote OBJ27 David and Susan Skerritt OBJ27/1 Statement of David Skerritt OBJ28 Cllr Alexandra Kemp OBJ28/1a Statement of Cllr Alexandra Kemp OBJ28/1b-f Supporting documentation OBJ29 Joy Franklin OBJ29/1 Statement of Joy Franklin OBJ29/1a-2 Supplementary appendices OBJ30 Bernard Clark OBJ30/1 Statement of Bernard Clark OBJ31 Steve Fox OBJ31/1 Supporting documentation OBJ32 Jim Elliott OBJ32/1 Statement of Jim Elliott OBJ33 Tony Bubb OBJ34 Joan Hodkinson - Clenchwarton PC OBJ35 Jeremy Dearling OBJ35/1 Statement of Jeremy Dearling OBJ36 Norfolk Wildlife Trust OBJ36/1 Proof of evidence of William Boyd, Norfolk Wildlife Trust (February 2013) OBJ36/1a Summary proof (February 2013) OBJ36/1b Appendices to proof of evidence (February 2013) OBJ36/2 Updated proof of evidence of William Boyd, Norfolk Wildlife Trust (April 2013) OBJ36/2a Updated summary proof (April 2013) OBJ36/3 Second report by the United Kingdom under Article 17 – H7150: Depressions on peat substrates of the Rhynchosporion (92/43/EEC) OBJ36/4 JNCC, Project Summary – Evidence of nitrogen deposition impacts on vegetation: Implications for country strategies and UK biodiversity
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commitments OBJ37 John Preston OBJ38 Edwin Tonkyn OBJ38/1 Statement of Edwin Tonkyn OBJ39 Beate Knights OBJ39/1 Statement of Beate Knights OBJ39/1a Amended and supplemented statement of Beate Knights OBJ39/1b Fully referenced statement of Beate Knights OBJ39/2 Written representation of Beate Knights OBJ40 Stuart Wilkie OBJ40/1 Statement of Stuart Wilkie OBJ40/1a-k Material in support of case SW/1-SW/43, plus bundle of additional documents OBJ41 Jane Green OBJ42 Clive Williams OBJ43 Ingo Wagenknecht OBJ43/1 Statement of Ingo Wagenknecht OBJ44 Cllr Gary McGuinness OBJ44/1 Statement of Cllr Gary McGuinness OBJ45 Cllr Lori Allen OBJ46 Sylvia Pomeroy OBJ47 Lisa Barnes, Xprds Ltd OBJ48 Judi Knights OBJ48/1 Statement of Judi Knights OBJ48/1a “Stage 2” statement (duplicate of OBJ48/1) OBJ48/1b Appendices to statement OBJ49 North Runcton PC (see also 181/1) OBJ50 Middleton PC OBJ51 Tottenhill PC OBJ52 Castle Rising PC OBJ53 Richard Coates OBJ54 Peter Davis OBJ55 Christine Hall OBJ55/1 Statement of Christine Hall OBJ56 Anne Welbery-Smith OBJ57 Not used OBJ58 Hazel Fredericks OBJ58/1 Letter from Hazel Fredericks OBJ59 South Wootton PC OBJ60 Hunstanton Town Council OBJ61 Nordelph PC OBJ62 Suzi Ludgater-Pimlott OBJ63 Roydon PC OBJ64 Sandringham PC OBJ65 Downham Market Town Council OBJ66 Jane Dearling
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OBJ67 I. Swinburn OBJ68 Karin Price OBJ69 James Oakley OBJ70 David Gerrard OBJ71 Peter Woolley OBJ72 Norfolk Waste Research Group OBJ73 Mrs J E Hill OBJ74 MD & VA Harvey OBJ75 Mr R Whittle OBJ76 Chris Erwin OBJ77 Mrs W H Holmes OBJ78 Adrian Bramwell OBJ79 Tricia Bramwell OBJ79/1 Written representations of Tricia Brownwell OBJ80 A S Wiley OBJ81 Alan Bulmer OBJ82 A Holland OBJ83 Elaine Bird OBJ84 Soon Hoe Teh OBJ85 M L Rands OBJ86 Watlington PC OBJ87 Ingoldisthorpe PC OBJ88 Ray Daniels OBJ89 Ms Bates OBJ90 JoAnne Rust OBJ90/1 Statement of JoAnne Rust OBJ91 Mr J D Gomer OBJ92 Nicola Wright OBJ93 duplicate OBJ94 Barbara Wagstaff OBJ95 Peter Smith OBJ96 John and Jean Smiter OBJ96/1 The Health Effects of Waste Incinerators – submitted by Jean Smiter OBJ97 Ira Rose OBJ98 Geoff Roberts OBJ99 Ian Perry OBJ100 Michael Pantling OBJ101 Gloria Pantling OBJ102 James Moriarty OBJ103 Raymond Lowe OBJ104 Marc Harris OBJ105 Burnham Overy PC OBJ106 Cllr Gourlay OBJ107 Chris Edwards OBJ107/1 Statement of Chris Edwards
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OBJ108 Betty Drakes OBJ109 Bob Peck OBJ110 Syderstone PC OBJ111 Gillian Head OBJ112 Flitcham Cum Appleton PC OBJ113 Sedgeford PC OBJ114 Henry Head OBJ115 West Rudham PC OBJ116 Pamela Woodward OBJ117 Gerry Hill OBJ118 Mrs Cooper OBJ119 M J O’Lone OBJ120 Margaret Bradley OBJ121 Derek Shirley OBJ122 Andrew Williams OBJ123 John Gudgeon OBJ124 Dave Dennis OBJ124/1 Statement of Dave Dennis OBJ125 Andrew Davey OBJ126 Julie Coulter OBJ127 Nell Briscoe OBJ128 Peter Branson OBJ129 Margi Blunden OBJ130 JC Beveridge OBJ131 Phillida Perry OBJ132 Colin Gathercole OBJ133 Cllr Bremer OBJ 134 Albert Eaglen OBJ 135 Mrs Waddelow OBJ 136 R H G Turff OBJ 137 Joy Sampson OBJ 138 Viviene Parkin OBJ 139 Mr and Mrs Meadows OBJ140 G L Lines OBJ141 Not used OBJ142 Mark Allen OBJ143 R Alan Hutchinson OBJ144 P. Piggott OBJ145 Police and Crime Commissioner for Norfolk OBJ146 Ray Starling OBJ147 Paul Garnett OBJ148 Peter Jones OBJ148/1W Statement of Peter Jones OBJ149 Frances Nolan OBJ149/1-1b Written representations by Frances Nolan
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OBJ150 David Press OBJ151 Dennis Buckland OBJ152 Jack Morton OBJ153 David Press OBJ154 Paul Espin OBJ154/1 Statement of Paul Espin OBJ154/1a Extract from Wash Biodiversity Action Plan OBJ154/1b The Wash Estuary Management Plan OBJ154/2 Written representation of Paul Espin dated 25 April 2013 OBJ155 Jacqueline Mulhallen OBJ155/1 Statement of Dr Jacqueline Mulhallen OBJ156 Glenn Patrick OBJ157 Mark Ray OBJ158 Mrs K Hunter OBJ159 Mr Robert Raab OBJ160 Not used (duplicate of OBJ59) OBJ161/1W Written representation of David Goddard OBJ162 Richard Howitt MEP OBJ162/1 Statement of Richard Howitt MEP OBJ162/1a Letter dated 23 April 2013 to the Inspector regarding local government’s new responsibilities for public health OBJ163/1 Statement on behalf of the Parish Councils of Leziate, Wiggenhall St. Germans, Castle Acre, Flitcham, Old Hunstanton, East Winch, Swanton Morley, Magdalen, Grimston & Roydon OBJ164/1 Statement of Councillor Gerard Watt OBJ165/1 Statement of Mike Knights OBJ166/1 Statement of Mr Kratz on behalf of Mrs Phillips (OBJ 21), Mr Greene and Mrs Oliver (OBJ 19) OBJ167/1 Statement of Louise Scrimshaw OBJ167a Amended statement OBJ168/1 Statement of Peter Knights OBJ168/1a-d Supporting documentation OBJ169/1 Statement of Noel Linge on behalf of Branchester Parish Council OBJ170/1 Statement of Mr de Whalley on behalf of Grimston, Congham & Roydon Residents’ Association OBJ171/1 Statement of Paul Moore OBJ172/1w Written representation of David Lefever and document OBJ 173 Susan Flack OBJ 174 Jeanette Todd OBJ 175 Jayne Borthwick OBJ 176/1 Statement of Downham and Villages in Transition Group OBJ177/1 Statement by Dr Pallavi Devulapalli OBJ178W Letter from Mrs Ann Isted dated 25 April 2013 OBJ179/1 Statement of Peter Gidney OBJ180/1 Statement of Sheridan Payne OBJ181/1 Statement of Mark Fuller
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Annex A – Approved plans
Drawing Revision Submission Title reference Date Figure 1.2 Jan 2012 Proposal Site Plan Figure 2.1 June 2011 Proposal Site and Setting Figure 4.1 Rev J Jan 2012 Site Layout Plan Figure 4.2 Rev M June 2011 Colour Site Plan Figure 4.3 Rev D June 2011 EfW facility Process Plan Figure 4.4 Rev E June 2011 EfW Facility Ground Floor Plan Figure 4.5 Rev E June 2011 EfW Facility First Floor Plan Figure 4.6 Rev E June 2011 EfW Facility Second Floor Plan Figure 4.7 Rev E June 2011 EfW Facility Third Floor Plan Figure 4.8 Rev E June 2011 EfW Facility Fourth Floor Plan Figure 4.9 Rev E June 2011 EfW Facility Fifth Floor Plan Figure 4.10 Rev E June 2011 EfW Facility Roof Floor Plan Figure 4.11 Rev G Jan 2012 EfW Facility Colour Elevations Figure 4.12 Rev E June 2011 EfW Facility South West Elevation Figure 4.13 Rev E June 2011 EfW Facility South West Elevation Figure 4.14 Rev G Jan 2012 EfW Facility North West and South East Elevation Figure 4.15 Rev E June 2011 EfW Facility Section AA Figure 4.16 Rev E June 2011 EfW Facility Section BB Figure 4.17 Rev E June 2011 EfW Facility Section CC & Section DD Figure 4.18 Rev E June 2011 EfW Facility Section EE & FF Figure 4.19 June 2011 EfW Facility Ramp Section and Elevation
Figure 4.20 Rev G Jan 2012 IBA Recycling Area IBA Process Building and Gatehouse Floor Plans Figure 4.21 Rev G Jan 2012 IBA Process Building & Bins Elevations and Sections Figure 4.22 Rev A Jan 2012 IBA Recycling Area Lagoon and Sedimentation
Figure 4.23 Rev G Jan 2012 IBA Recycling Area IBA Office & fencing Plans and Elevations Figure 4.24 Rev F June 2011 EfW Facility Gatehouse, ACC & Substation Elevations Figure 4.25A Rev E June 2011 Visualisations Figure 4.26 Rev A Jan 2012 EfW Facility Drainage Layout (North Land) Figure 4.27 Rev A Jan 2012 IBA Recycling Area Drainage Layout (South Land) Figure 4.28 Rev L Jan 2012 Grid Connection plan Figure 4.29 Rev 1 Dec 2012 EfW Facility Landscape Plan Figure 4.31 Rev D Jan 2012 Steam Connection Route Plan Figure 4.33 Jan 2012 Building Heights
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Annex B – Conditions
Definitions In these conditions, unless the context otherwise requires: ‘Approved Plans’ refers to the list of approved drawings and plans set out in Annex A. ‘Applicants’ means Cory Environmental Management Limited and Wheelabrator Technologies Incorporated. ‘Bank Holiday’ means a day that is or is to be observed as a Bank Holiday or a holiday under the Banking and Financial Dealings Act 1971. ‘Commencement of construction’ is the commencement in the construction of the development excluding any on site preliminary site enabling or mobilisation works [see Works Commencement Date definition in S106]. ‘Commencement of operations’ is the date on which the development commences to receive waste, excluding any period of commissioning and trials and “becomes operational” and “operation of the development” shall be construed in the same way. ‘the development’ means the construction installation and operation of an Energy from Waste facility including an integrated system turbine generator plant, grid connection cables, associated infrastructure to enable the provision of Combined Heat and Power, Incinerator Bottom Ash recycling area, visitor centre, offices, and other ancillary development including weighbridges, access and internal roads, parking facilities, landscaping and biodiversity enhancement areas at the site. Environmental Statement has the meaning of the Environmental Statement (Volumes 1, 2, 3 and 4) submitted to the County Planning Authority in June 2011 ‘Further Information’ has the meaning of the additional environmental information referred to as Part A Supplementary Planning Application Supporting Statement and Part B Additional Environmental Information and Clarification submitted in January 2012 together with Additional Environmental Information (Summary and Update to Protected Species Surveys, Wildlife Area Outline Management Plan, Cumulative Landscape and Visual Impact Assessment, Additional Noise Baseline Survey and Update to the Draft Construction and Decommissioning Environmental Management Plan) submitted in December 2012 ‘Heavy Goods Vehicle’ has the meaning of a heavy goods vehicle with a maximum gross vehicle weight of 7.5 tonnes or more being used in connection with the operation of the development. ‘IBA Recycling Area’ means the area of land marked as South Land on Figure 4.2, Chapter 4, Environmental Statement. ‘the Site’ means the area of land outlined in red on Figure 1.2 of Appendix 13, Part B. ‘Operator’ means the Willows Power & Recycling Limited or any subsequent operator(s) of the Site.
Commencement
C1. The development hereby permitted shall commence not later than three years from the date of this permission. Within seven days of the commencement of operations, the Operator shall notify the County Planning Authority in writing of the starting date. www.planningportal.gov.uk/planninginspectorate Page 273 Report APP/X2600/V/12/2183389
Implementation
C2. The Applicants shall notify the County Planning Authority in writing six weeks prior to the commencement of construction permitted by this planning permission.
Approved Details
C3. The development hereby permitted shall be carried out and completed in accordance with the submitted plans as set out in Annex A of this letter (the `Approved Plans`).
C4. All mitigation measures described in the Environmental Statement as detailed in Chapter 7 Air Quality (Section 7, Para 7.6.1), Chapter 9 Ecology and Nature Conservation (Section 9.7), Chapter 10 Hydrology and Flood Risk (Section 10.6), Chapter 11 Hydrology and Ground Conditions (Section 11.6), Chapter 12 Noise and Vibration (Section 12.8), Amenity Chapter 15 (Section 15.7), Construction Decommissioning Environmental Management Plan (Appendix 4.2 of ES), Update to the Draft Construction and Decommissioning Environmental Management Plan (submitted December 2012), Wildlife Area Outline Management Plan (submitted December 2012) and Arboricultural Report (Appendix 6 of Part B), Surface Water, Foul and Process Drainage Design Statement (Appendix 11 of Part B) shall be implemented in full prior to the Site becoming operational or as otherwise described in the relevant sections of the Environmental Statement and Further Information.
Removal of Permitted Development Rights
C5. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995, as amended, no permanent buildings or fixed plant/machinery shall be erected on the site, except with permission granted on an application under Part III of the Town and Country Planning Act 1990.
Availability of Planning Documents
C6. A copy of this permission, including all documents hereby approved (including any information relating to the discharge of conditions) shall be kept available for inspection on site.
Contaminated Land
C7. In the event that when carrying out the development site contamination is found that was not previously identified it shall be reported in writing immediately to the County Planning Authority. An investigation and risk assessment shall be undertaken by or on behalf of the Operator and where the County Planning Authority considers remediation is necessary a remediation scheme shall be prepared by or on behalf of the Operator which shall be submitted to and approved in writing by the County Planning Authority. The approved remediation scheme shall be implemented and a verification report shall be submitted to and approved by the County Planning Authority to confirm completion of the approved
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remediation scheme.
Surface and Foul Water Disposal
C8. Prior to the commencement of construction, a scheme for the provision and implementation of surface and foul water drainage in accordance with the details set out within Updated Drainage Design Statement (Appendix 11, Part B) shall be submitted to and approved in writing by the County Planning Authority. The approved scheme shall be implemented and completed before the site becomes operational.
C9. Prior to the commencement of construction, a scheme for the disposal of any contaminated surface water during construction shall be submitted to and approved in writing by the County Planning Authority. Drainage of any contaminated surface water during construction works shall be in compliance with the approved scheme at all times.
Oil Interceptor
C10. No development shall commence until details of an oil interceptor have been submitted to and approved in writing by the County Planning Authority. Development shall be in accordance with the approved details and shall be implemented prior to any operations taking place. Roof water shall not be required to pass through the interceptor.
Piling Method
C11. Prior to the commencement of construction, the method for piling foundations shall be submitted to and approved in writing by the County Planning Authority. The piling shall thereafter be undertaken only in accordance with the approved method.
Protection of Trees
C12. Prior to the commencement of construction, the Applicant shall ensure that:
a) A site specific arboricultural method statement shall be submitted to and approved in writing by the County Planning Authority. This shall include specifications for trial hand digging to assess the location of tree roots where excavations are proposed within the root protection areas. The development shall be carried out in accordance with the approved scheme.
b) Each tree within or adjacent to the site shall be enclosed within a protective fence in accordance with the criteria laid down in BS 5837: 2012 ‘Trees in Relation to Design, Demolition and Construction - Recommendations’ and in accordance with the approved scheme, including the Tree Survey and Protection Plan [see Appendix 6 Arboricultural Report, Part B] for the period whilst works are in progress.
c) Any excavations carried out within the vicinity of the tree roots shall be carried out by hand.
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Landscaping
C13. No development shall take place until a scheme of landscaping has been submitted to and agreed in writing by the County Planning Authority. The scheme shall include details of size, species and spacing of trees, hedges and shrubs, arrangements for their protection and maintenance, and details of the construction and maintenance of the soil bunds. It shall be completed within 12 months of the commencement of operations and shall make provision for:
(a) The screening of the operations by trees, hedges and soil bunds; (b) The protection and maintenance of existing trees and hedges which are to be retained on the site; (c) Re-seeding and re-planting where failures or damage occur within a period of five years from the date of planting; and, (d) The replacement of any damaged or dead trees with trees of similar size and species at the next appropriate season.
C14. Prior to the commencement of operations, a landscape management plan, including management responsibilities and maintenance schedules for all areas to be landscaped pursuant to the approved landscaping scheme, shall be submitted to and approved in writing by the County Planning Authority. The landscape management plan shall be carried out as approved for the duration of operations at the site unless otherwise agreed in writing with the County Planning Authority.
Ecology Environmental Management Plan
C15. Prior to the commencement of construction, an Ecological Environmental Management Plan shall be submitted to and approved in writing by the County Planning Authority in respect of both the construction and operational phases of the development. The plan shall include specific mitigation plans for all legally protected species with the potential to be impacted upon by the development. The development shall be carried out in accordance with the approved plan for both phases of the development.
C16. Prior to the commencement of construction, a scheme providing details of the proposed on-site routing signage shall be submitted to and approved in writing by the County Planning Authority. The signage shall indicate to drivers of operational HGVs the approved route to be used. The approved signage shall be erected prior to the commencement of operations at the site and thereafter maintained.
Vehicular Access
C17. The gradient of the vehicular access shall not exceed 1:12 for the first 15 metres into the site as measured from the near channel edge of the adjacent carriageway.
C18. Prior to the commencement of operations, the vehicular access shall be laid out in the position shown on the approved plan [Figure 4.2 Chapter 4 of the ES]. Additionally in the area of land between the site boundary to the near channel edge of the carriageway the construction specification shall be in accordance with details to be submitted to and approved in writing by the County Planning www.planningportal.gov.uk/planninginspectorate Page 276 Report APP/X2600/V/12/2183389
Authority in consultation with the Local Highway Authority. Arrangements shall be made for surface water drainage to be intercepted and disposed of separately so that it does not discharge from or onto the highway carriageway.
C19. Prior to the commencement of operations, visibility splays measuring 2.4 metres x 90 metres as a minimum and 4.5 metres x 90 metres where possible shall be provided to each side of the access where they meet the highway and such splays shall thereafter be maintained at all times free from any obstruction exceeding 0.225 metres above the level of the adjacent highway carriageway.
C20. Prior to the commencement of operations, the proposed on-site car and cycle parking / servicing / loading / unloading / turning / waiting areas shall be laid out, demarcated, levelled, surfaced and drained in accordance with the approved plan Figure 4.2 Chapter 4 of the ES and Figure 4.26 as amended, Part B: Additional Environmental Information and Clarification and retained thereafter available for their use as specified on the approved plans.
C21. Prior to the commencement of construction, any access gate, bollard, chain or other means of obstruction that is capable of opening and closing shall be hung to open inwards, set back, and thereafter retained at a minimum distance of 10 metres from the near channel edge of the adjacent carriageway. Any sidewalls / fences / hedges adjacent to the access shall be splayed at an angle of 45 degrees from each of the (outside) gateposts to the front boundary of the site.
Construction Traffic Management Plan
C22. Prior to the commencement of construction, a Construction Traffic Management Plan (including construction access route and detail for on-site parking provision for construction workers), which shall incorporate adequate provision for addressing any abnormal wear and tear to the highway which can be attributed to construction traffic related to the development (and not caused by adverse weather conditions), together with proposals to control and manage construction traffic using the approved construction access route and to ensure no other local roads are used by construction traffic, shall be submitted to, and approved in writing by, the County Planning Authority.
C23. For the duration of the construction period, the Construction Traffic Management Plan (and construction access route) shall be implemented and appropriate steps shall be taken to ensure that all drivers of vehicles accessing the Site use only the approved access route and no other local roads unless otherwise approved in writing by the County Planning Authority.
C24. Prior to commencement of construction, a Travel Plan for Construction Staff that accords with Norfolk County Council document `Guidance Notes for the Submission of Travel Plans` or the Workplace Travel Plan Generator Tool, www.worktravelplan.net and which contains timetables and targets for implementation shall be submitted to and approved in writing by the County Planning Authority. The approved Travel Plan for Construction Staff shall be implemented and adhered to throughout the construction period.
Wheel Washing (Construction)
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C25. No development shall commence until a wheel washer has been installed in accordance with details to be first approved in writing with the County Planning Authority. The approved wheel washer shall remain on site for the duration of the construction period. All traffic associated with the construction of the development permitted shall use the approved wheel washing facilities.
Construction Hours
C26. Save for the slip form work required for the construction of the Waste Bunker which is a 24 hour operation, external construction work shall not take place outside the hours of 07.00 and 20.00 hours Monday to Friday and 07.00 and 16.00 hours on Saturdays and shall not take place at any time on Sundays or Bank Holidays.
C27. Piling shall not take place outside the hours of 08:00 and 19:00 hours Monday to Friday and 08:00 and 16.00 hours on Saturdays and shall not take place at any time on Sundays or Bank Holidays.
C28. Save for deliveries associated with the slip form work required for the construction of the waste bunker which is a 24 hour operation, no deliveries during the construction phase shall be received at nor exports dispatched from the site outside the hours of 07.00 and 20.00 hours Monday to Friday and 07.00 and 16.00 hours on Saturdays and deliveries shall not be received nor exports dispatched at all on Sundays or Bank Holidays.
Construction Method Statement
C29. Prior to the commencement of construction, a Construction Method Statement shall be submitted to and approved in writing by the County Planning Authority. The method statement shall provide for:
a) unloading and loading of plant and materials; b) storage of plant and machinery; c) measures for the prevention of mud on the public highway; d) dust management; e) a site waste management plan; f) measures to control noise and light disturbance; g) a list of construction activities categorised in terms of noise they would generate as non-intrusive, intrusive and noisy; h) a list of plant and machinery to be used on site; i) reference to other measures intended to minimise harm to amenity and the environment in general; j) details of the proposed Flood Warning and Evacuation Plan for the construction period; and k) details of the slip form work required for the construction of the Waste Bunker.
The approved Method Statement shall be adhered to throughout the construction period.
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C30. Two months prior to the commencement of construction, a Construction and Decommissioning Environmental Management Plan (CDEMP) based on the Plan provided at Appendix 4.2 of the Environmental Statement and Update to the Draft Construction and Decommissioning Environmental Management Plan (December 2012) shall be submitted to and approved in writing by the County Planning Authority. The operator shall implement the approved CDEMP on commencement of construction and adhere to it during the construction and decommissioning periods of the development.
Operational Travel Plan
C31. Prior to the commencement of operations, an Operational Travel Plan that sets out the proposed measures to reduce the use of the private car and promote the use of sustainable modes of transport shall be submitted to and approved in writing by the County Planning Authority in consultation with the Local Highway Authority. The approved Operational Travel Plan shall be implemented in accordance with approved details contained therein and shall continue to be implemented as long as any part of the development is operational.
Covering of Loads
C32. No vehicles transporting waste shall enter or leave the site without its waste load being securely covered.
Operating Hours
C33. No deliveries of residual waste nor exports of metals or bottom ash aggregate shall enter or leave the site except between the hours of 07.00 and 21.00 hours Mondays to Fridays, 07.00 and 17.00 hours on Saturdays and 09.00 and 17.00 hours on Sundays and Bank Holidays save for vehicle movements between the North and South Land as shown on approved drawing Figure 1.2 of Appendix 13, Volume 2 Appendices, Part B.
Noise Control
C34. Prior to the commencement of development a detailed scheme showing the siting of any indoor and outdoor installations, machinery and equipment, shall be submitted to and approved in writing by the County Planning Authority; this shall include any fans, condenser units, generators, pumps, compressors and vehicles. The scheme shall specify the sound power levels of the equipment, their location, any mitigation measures and attenuation characteristics from enclosures or silencers. The scheme shall be implemented as approved before the development is brought into use and maintained as such thereafter.
Noise Monitoring
C35. Prior to the commencement of operations, the proposed methodology for noise monitoring including locations at which monitoring equipment will be sited shall be submitted to and approved in writing by the County Planning Authority. Within 7 days of the development being brought into operation, the Operator shall www.planningportal.gov.uk/planninginspectorate Page 279 Report APP/X2600/V/12/2183389
commence noise monitoring which shall be carried out in accordance with the approved methodology such monitoring shall be continued for a six month period. The results of the noise monitoring shall be kept for a minimum of 12 months and made available within 28 days of a written request from the County Planning Authority.
Noise Complaints
C36. (i) Within 14 days from the receipt of a written request from the County Planning Authority, and following a complaint to the County Planning Authority from the occupant of a dwelling which lawfully exists or has planning permission at the date of this consent, the operator shall, at the operators’ expense, employ an independent consultant approved in writing by the County Planning Authority to assess the noise from, and identify as appropriate mitigation measures, at the Site.
(ii) The independent consultant’s proposed monitoring locations and methodology must be submitted to and approved in writing by the County Planning Authority prior to the commencement of the assessment and shall be carried out as approved. The independent consultant’s assessments and conclusions including all calculations, audio recordings and the raw data upon which those assessments and conclusions are based shall be provided to the County Planning Authority.
(iii) Should the independent consultant’s assessment and conclusions identify the need for noise mitigation, an appropriate schedule of dates for the completion of such works shall be submitted to and approved in writing by the County Planning Authority. The schedule of works shall be implemented as approved.
(iv) The independent consultant’s assessment and conclusions and the schedule of works for proposed mitigation shall be submitted to the County Planning Authority within 3 months of the date of the first written request as specified in section (i) of this condition.
Noise Management Plan
C37. Prior to the commencement of construction, a noise management scheme that contains provision for:
a) Regular attended and unattended monitoring of noise levels from the site through all phases of construction, the duration of operation of the development and decommissioning, and
b) A complaints response procedure
shall be submitted to and approved in writing by the County Planning Authority. The approved scheme shall be implemented upon commencement of development and adhered to thereafter during the construction period, the lifetime of the operation of the development and the decommissioning period.
Community Representative
C38. Prior to commencement of operations there shall have been submitted to the www.planningportal.gov.uk/planninginspectorate Page 280 Report APP/X2600/V/12/2183389
County Planning Authority details of a nominated representative for the development to act as a point of contact for local residents (in connection with Conditions 36 and 37 together with the arrangements for notifying local residents of any subsequent change in the nominated representative. The nominated representative shall have responsibility for liaison with the County Planning Authority in connection with any noise complaints made during the construction, operation and decommissioning of the plant.
IBA Recycling Area Dust Management
C39. Within 24 hours of the IBA Recycling Area being brought into operation, the Operator shall commence monitoring of dust in the form of PM10 at the same locations as the monitoring carried out in the Environmental Statement, and to continue for a minimum period of 12 months. The monitoring data shall be provided to the County Planning Authority every month during the monitoring and be available for public inspection.
C40. Prior to the commencement of development, a Dust Management Plan containing details of proposed methodology to prevent dust constituting a nuisance off site shall be submitted to and approved in writing by the County Planning Authority. The approved plan shall be implemented during the lifetime of the development.
Surface Water Drainage and Pollution Protection
C41. Any drums and containers used for oil and other chemicals on the Site shall be stored in bunded areas which do not drain to any watercourse, surface water sewer or soakaways, and all oil and chemical storage tanks, ancillary handling facilities and equipment, including pumps and valves, shall be contained within an impervious bunded area that has a capacity equal to at least 110% of the total volume of oil and chemicals stored on Site.
Prior Approval of all External Facing Materials including Fencing
C42. Prior to the commencement of construction, samples of all external facing and fencing materials to be used shall be submitted to and approved in writing by the County Planning Authority.
Prior Approval of Surfacing Treatment
C43. Prior to the commencement of construction, details of the materials to be used for surfacing of all exterior hard paved areas including areas of permeable and non- permeable surfaces areas shall be submitted to and approved in writing by the County Planning Authority.
Details of Aviation Warning Lights
C44. Prior to the commencement of construction, details of the red aviation warning lights to be placed on the stack shall be submitted to and approved in writing by the County Planning Authority. The development shall be implemented in accordance with the approved details.
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C45. Prior to the commencement of construction, details of external lighting shall be submitted to and approved in writing by the County Planning Authority, such details shall include the position, height, type and power of each external light. The approved external lighting shall be installed and thereafter retained and maintained in accordance with approved details.
Waste Capacity
C46. No more than 275,000 tonnes in total of residual solid municipal waste and residual solid commercial and industrial waste shall be received or processed within the Energy from Waste facility on the northern part of the site during any calendar year. Information in respect of the total amount of waste received or processed on site shall be submitted to the County Planning Authority by 28 February of each year, and shall relate to the waste received at the plant during the preceding calendar year.
No Importation of Incinerator Bottom Ash from other EfW Facilities
C47. Only IBA originating from the application site shall be processed at the IBA Recycling Area located at the Site. No other IBA or associated material shall be imported from other sites or processed at the facility.
Electrical Grid Connection
C48. Prior to the commencement of operations, a fully operational link to the electrical grid infrastructure, capable of taking the entire exportable electricity output from the Energy from Waste facility shall be in place.
Combined Heat and Power Infrastructure
C49. Prior to the receipt of waste, sufficient plant and pipe work shall have been installed to ensure that the plant is capable of a providing a future supply of heat to the boundary of the Site at a later date in order to facilitate Combined Heat and Power opportunities.
Combined Heat and Power Feasibility
C50. Prior to the receipt of waste, a review of the opportunities for Combined Heat and Power shall be submitted to and approved in writing by the County Planning Authority. This review shall be updated on an annual basis and submitted every September 1st for the life time of the facility. This review shall provide for the ongoing monitoring and full exploitation of potential commercial opportunities as necessary. Where the Operator identifies viable opportunities for the use of heat and /or steam off-site, a scheme for the provision of necessary infrastructure and pipe work to be installed to the boundary of the site shall be submitted to, and approved in writing by the County Planning Authority. Any such approved infrastructure and pipe work to enable the use of heat shall be installed to the boundary of the Site in accordance with the details submitted to and approved in writing by the County Planning Authority. Thereafter the requirement for annual review of CHP opportunities shall cease.
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Building Research Establishment Environment Assessment Method (BREEAM) Very Good Standard for Bespoke Buildings
C51. The development hereby permitted shall be constructed to a specification appropriate to achieve a Building Research Establishment Environment Assessment Method (BREEAM) Very Good for Bespoke Buildings standard (or subsequent equivalent quality assured scheme). Prior to the operation of the development a report detailing how the construction has been undertaken to the appropriate specification shall be submitted to and approved in writing by the County Planning Authority.
C52. Within 6 months following the commencement of operations of the facility a post construction stage assessment confirming that the Building Research Establishment Environment Assessment Method (BREEAM) Very Good for bespoke buildings standard (or subsequent equivalent quality assured scheme) has been achieved shall be submitted and approved in writing by the County Planning Authority.
Retail Sales
C53. No material shall be accepted at the site directly from members of the public, and no retail sales of waste or processed materials to members of the public shall take place at the site.
Decommissioning
C54. Subject to the requirements in condition 30, within 6 months of the substantive cessation of electricity generation at the facility and prior to the decommissioning of the development hereby permitted, a scheme to address the removal of the development and restoration of the land shall be submitted to and approved in writing by the County Planning Authority. The scheme shall be implemented as approved. The submitted scheme shall make provision for:
• The removal of all structures including shallow foundations and services to the extent not required for any intended after-use; • The restoration of the land to a condition suitable for the intended after- use; and • The timescale for implementation.
Flood Risk Mitigation
C55. The development shall be carried out in accordance with the flood risk mitigation measures detailed in Chapter 10 of the ES (Section 10.6) and the Flood Risk Assessment (Appendix 10.1 of the ES) save in respect of drainage matters as set out in the Updated Drainage Design Statement (January 2012).
Flood Warning and Evacuation Plan (FEP).
C56. Prior to the commencement of operations, a scheme containing details of the proposed Flood Warning and Evacuation Plan (FEP) shall be submitted to and approved in writing by the County Planning Authority. The FEP shall include provisions relating to: www.planningportal.gov.uk/planninginspectorate Page 283 Report APP/X2600/V/12/2183389
• Command and control (the decision making process and communications procedures that will be put in place to ensure the FEP is effectively activated); • Training and exercising of personnel on site (H&S records); • Flood warning procedures (in terms of receipt and transmission of information); • Site evacuation procedures and routes; and, • Provision for identified safe refuges.
The FEP shall be reviewed every 5 years (or such other periods as agreed in writing with the County Planning Authority) and will form part of the Health & Safety at Work Register maintained by the Operator. A copy of the Register shall be kept on the Site.
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Annex C - ABBREVIATIONS USED IN REPORT
AA Appropriate Assessment ACT Advanced Conversion Treatment AD Anaerobic Digestion ADAS Environmental consultancy formerly known as Agricultural Development Advisory Service ADMS Atmospheric Dispersion Model System APIS Air Pollution Information System Applicants Cory /Wheelabrator AQMA Air Quality Management Area AQS Air Quality Standard ASA Alternative Sites Assessment BAT Best Available Technique(s) BC The Borough Council of King’s Lynn and West Norfolk BMW Biodegradable municipal waste BPEO Best Practicable Environmental Option BREF Best Available Techniques Reference Documents BS 4142 British Standard for rating industrial noise affecting mixed residential and industrial areas BSEM British Society for Ecological Medicine CABE (former) Commission for Architecture and the Built Environment (now Design Council) C&D Construction and Demolition (Waste) C&I Commercial and Industrial (Waste) CEMP Construction and Environmental Management Plan CFD Computational Fluid Dynamics CG Companion Guide CHP Combined Heat and Power CLF Critical Load Function CMP Construction Management Plan CO2 Carbon dioxide CS Kings Lynn and West Norfolk Core Strategy (2011) CTRN Calculation of Road Traffic Noise DCLG Department for Communities and Local Government DECC Department of Energy and Climate Change DCO Development Consent Order DEFRA Department of the Environment, Food and Rural Affairs DPD Development Plan Document EA Environment Agency EA FZ EA Flood Zone (maps) ECHR European Commission on Human Rights ECtHR European Court of Human Rights EfW Energy from Waste EIA Regs Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 EN-1 Overarching National Policy Statement for Energy EN-3 National Policy Statement on Renewable Energy Infrastructure EP Environmental Permit EPS European Protected Species ERF Energy Recovery Facility ES Environmental Statement www.planningportal.gov.uk/planninginspectorate Page 285 Report APP/X2600/V/12/2183389
FRA Flood Risk Assessment GLVIA Guidelines for Landscape and Visual Impact Assessment GRWP Government Review of Waste Policy 2007 HGV Heavy Goods Vehicle HPA Health Protection Agency (H)HRA (Human) Health Risk Assessment IBA Incinerator Bottom Ash IPPC Integrated Pollution Prevention and Control KLWIN King’s Lynn Without Incineration ktpa thousand tonnes per annum LVIA Landscape and Visual Impact Assessment LP Kings Lynn and West Norfolk Local Plan Saved Policies (1998) MBT Mechanical Biological Treatment MRF Materials Recycling Facility MSW Municipal Solid Waste MW Megawatt MWe Megawatt electrical MWCS Norfolk Minerals and Waste Core Strategy and Development Management Policies Development Plan Document (2011) MWL Material Works Limited NAI Nearest Appropriate Installation NCC Norfolk County Council NDRPS Norfolk Dry Recyclates Processing Service NE Natural England NHS National Health Service NO2 Nitrogen dioxide NOx Nitrogen oxides NORA Nar Ouse Regeneration Area NPPF National Planning Policy Framework NPSs National Policy Statements NSIP Nationally Strategic Infrastructure Project OR Officer Report PC Process contribution PCT Primary Care Trust PEC Predicted Environmental Concentration PFI Private Finance Initiative PIC Police Investigation Centre PM Particulate Matter (the figure after the letters represents particle size) POPs Persistent Organic Pollutants PPS10 Planning Policy Statement 10: Planning for Sustainable Waste Management (2011) PSGP Planning System General Principles (2005) R1 Figure derived from calculation in rWFD to show whether the energy can be considered to be renewable RDF Refuse Derived Fuel ROC Renewables Obligation Certificate ROO2009 Renewable Obligation Order 2009 ROTAP Review of Transboundary Air Pollution (2012) RTAB Regional Technical Advisory Body SAC Special Area of Conservation SEA Strategic Environmental Assessment SFRA Strategic Flood Risk Assessment www.planningportal.gov.uk/planninginspectorate Page 286 Report APP/X2600/V/12/2183389
SMR Standard Mortality Rate SoCG Statement of Common Ground SoSCLG Secretary of State for Communities and Local Government SoSECC Secretary of State for Energy and Climate Change SOx Sulphur oxides SPA Special Protection Area SRF Solid Recovered Fuel SSSI Site of Special Scientific Interest ST Sequential Test SUDs Sustainable Urban Drainage scheme TA Transport Assessment TDI Tolerable Daily Intake TG NPPF Technical Guidance tpa Tonnes per annum tph Tonnes per hour TRHM Tidal River Hazard Mapping TT Thermal Treatment rWFD revised Waste Framework Directive WCA Waste Collection Authority WDA Waste Disposal Authority (Norfolk County Council) WHO World Health Organisation WID Waste Incineration Directive WMF Waste Management Facility WPA Waste Planning Authority (Norfolk County Council) WPR2011 Review of Waste Policy in England 2011 WRATE Waste and Resources Assessment Tool for the Environment WR2011 Waste (England and Wales) Regulations 2011 WS2007 Waste Strategy for England 2007 WSSA Norfolk Waste Site Specific Allocations DPD WTF Waste Treatment Facility WTS Waste Transfer Station ZTV Zone of Theoretical Visibility
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