Victoria Redman Our Ref: APP/L3055/V/09/2102006 Bond Pearce LLP 3 Temple Quay Temple Back East Bristol BS1 6DZ 26 May 2011 Dear Ms Redman, TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 77. APPLICATION BY VEOLIA ES NOTTINGHAMSHIRE LIMITED LAND AT FORMER RUFFORD COLLIERY, RAINWORTH, NOTTINGHAMSHIRE NG21 OET. APPLICATION REF: 3/07/01793/CMW 1. I am directed by the Secretary of State to say that consideration has been given to the report of the Inspector, R W N Grantham, BSc(Hons), MRSC, MCIWEM, who held a public local inquiry which closed on 26 October 2010 into your client’s application for the construction and operation of a waste combustion/Energy Recovery Facility (ERF) together with ancillary infrastructure, including a waste bulking/transfer station, administration/visitor centre, landscaping and creation of new internal haul road, on land at the former Rufford Colliery, Rainworth, Nottinghamshire, NG21 0ET, in accordance with application reference 3/07/01793/CMW, dated 29 November 2007. 2. It was directed on 18 March 2009, in pursuance of Section 77 of the Town and Country Planning Act 1990, that the application be referred to the Secretary of State instead of being dealt with by the relevant planning authority, Nottinghamshire County Council, because the proposal may conflict with national policies on important matters. Inspector’s recommendation and summary of the decision 3. The Inspector recommended that planning permission be refused. For the reasons given below, the Secretary of State agrees with his recommendation. A copy of the Inspector's report (IR) is enclosed. All references to paragraph numbers, unless otherwise stated, are to that report. Procedural matters 4. In reaching his decision, the Secretary of State has taken into account the Environmental Information which was submitted under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (IR6, IR45-46, and IR1095). The Secretary of State considers that the Christine Symes Tel: 03034441634 Planning Casework Division Email: [email protected] Department for Communities and Local Government 1/J1 Eland House Bressenden Place London, SW1E 5DU environmental information as a whole meets the requirements of these regulations and that sufficient information has been provided for him to assess the environmental impact of the application. Matters arising following the close of the inquiry 5. Following the close of the inquiry, the Secretary of State of State received representations dated 15 April 2011 from Nottinghamshire County Council, and 12 May 2011 from Veolia Environmental Services and Harworth Estates (supported by a number of other organisations). The Secretary of State has given very careful consideration to the issues raised in these representations, and he is satisfied that there is no need for him to refer back to parties for representations prior to reaching his decision. Copies of the representations are not attached to this letter, but will be made available on request to the address at the foot of the first page of this letter. Policy considerations 6. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise. In this case, the development plan includes the East Midlands Regional Plan (RSS) (2009), the extant policies of both the Nottinghamshire and Nottingham Waste Local Plan (WLP) (2002) and the Newark and Sherwood Local Plan (NSLP) (1999). The Secretary of State agrees with the Inspector that relevant polices are those listed in the statement of common ground (with the exception that LP policies DD1, DD4, NE7, NE9, NE11, NE12, NE13 and PU2 have been replaced with publication of the Core Strategy) - key policies of which are set out in IR34-37. Since the inquiry closed the Newark and Sherwood Core Strategy (CS) has been adopted and also forms part of the development plan. The Secretary of State notes that issues relating to the CS have been addressed in the Inspector’s Report, and is satisfied that there have been no significant material changes to the document which would affect his decision or require him to refer back to parties prior to reaching a decision. 7. The Secretary of State agrees with the Inspector that the parties’ comments on the implications of the Cala Homes judgement of 10 November 2010 ([2010] EWHC 2866 (Admin)) relating to the status of RSSs do not introduce any relevant new evidence (IR12, 17 and CD119). Like the Inspector, he considers that the Government’s intention to revoke the RSS should be afforded limited weight given the stage of development it has reached in the Parliamentary process (IR1171). 8. Other material considerations include the national planning policy documents listed in section C of the IR documents list (see IR page 257), the waste strategy and legislation documents listed in sections D and F of the documents list, and documents relating to the Habitats and Birds Directives listed at IR54-56. Circular 11/95, Use of Conditions in Planning Permission, Circular 05/2005, Planning Obligations, and the Community Infrastructure Levy (CIL) Regulations 2010, are also material considerations. 9. The Secretary of State has also taken into account the update to Planning Policy Statement 10, which was published on 30 March 2011. He does not consider that there has been any material change in those policies to the extent that it would affect his decision or require him to refer back to parties for further representations prior to reaching his decision. 10. Very little weight has been afforded to the Nottingham Waste Development Framework, and its Waste Core Strategy, for the reasons set out in IR38. 11. The Secretary of State has taken into account the principles set out in the documents referred to in IR54-90 in determining this application. Main Issues Nature conservation 12. The Secretary of State agrees with the Inspector’s reasoning and conclusions on nature conservation as set out in IR1097-1156 and IR1288-1289. For the reasons set out by the Inspector at IR1105-1106, the Secretary of State agrees that, whilst the application site is within an area not currently identified as a Special Protection Area, there is merit in following a (Conservation of Habitats and Species) Regulation 61 approach towards considering the impact of the ERF scheme on the use of this area by the identified Annex 1 bird species (a “risk based approach”) (IR1288). Having carefully considered the Inspector’s assessment of the proposal on this basis (by way of a “shadow assessment”), the Secretary of State agrees that the effect of the mitigated scheme, in combination with other plans and projects, is likely to be significant, and he cannot be sure that the scheme would not harm the integrity of the area (IR1289). In common with the Inspector (IR1151), the Secretary of State considers that this would be in conflict with the aims of the RSS and with its policy 29. He is of the view that this conflict and the potential for harm to the integrity of habitat used by woodlark and nightjar weighs significantly against the proposal. Landscape and visual impact 13. The Secretary of State agrees with the Inspector’s reasoning and conclusions on landscape and visual impact as set out in IR1157-1166 (albeit he recognises that LP policy NE9 is no longer relevant following publication of the CS). He agrees that the ERF building would appear as an isolated, but prominent alien feature in the wider rural landscape, and that it would clearly intrude into the openness of the countryside (IR1164). Development Plan 14. Setting aside LP policy NE9, the Secretary of State agrees with the Inspector’s reasoning and conclusions on the development plan as set out in IR1167-1181 and IR1273-1276, although he does wish to make an observation on a point made by the Inspector about waste capacity at IR1180. On the matter of capacity the Secretary of State is mindful that PPS10 paragraph 10 states that, with regard to apportionment, “spurious precision should be avoided [and] annual rates are not intended to be a detailed forecast but to provide a benchmark”. Also the PPS10 companion guide states that the demonstration of allocated land “is not intended as a rigid cap on the development of waste management capacity”. Bearing this in mind, the Secretary of State does not consider that exceedence of “capacity” per se in policy 38 is necessarily inconsistent. However, he does consider that where ERF facilities are proposed in areas which are not specifically identified for such use, as is the case here, then PPS10 paragraphs 24 and 25 come into play. In such respects it is necessary to be consistent with PPS10 – a matter addressed in paragraphs 16 and 17 below. Alternative sites 15. For the reasons given in IR1182-1189 and IR1277, the Secretary of State agrees with the Inspector that the appraisal of alternative sites was not robust (IR1189). PPS10: Planning for sustainable waste management 16. The Secretary of State agrees with the Inspector’s reasoning and conclusions on PPS10 as set out in IR1190-1220 and IR1278-1281, except with respect to the specific point identified below. He agrees with the Inspector that given that the proposal is not consistent with an up-to-date plan, considerations of need are not ruled out in this case (IR1279). He also agrees that the availability of landfill capacity does not add any urgency to this proposal (IR1280), although he recognises that local authorities are required to divert biodegradable municipal waste from landfill under the EU Landfill Directive. 17. As for whether the proposal should be deemed waste disposal rather than recovery, the Secretary of State has had regard to the lack of guidance in support of the definition of recovery operation R1 under Annex II of the EU Waste Framework Directive.