Proximity and Need in Waste Management Consenting

Scotland

There have been significant developments recently in relation to the proximity principle which are likely to be of particular interest to local authorities and the waste industry in Scotland.

The first key development was the decision of the Outer House of the Court Session in the appeal by North Lanarkshire Council (North Lanarkshire) under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision of reporters to grant planning permission for a waste recovery and renewable energy facility on appeal.

Following that decision, East Lothian Council (East Lothian) has decided to vary a condition attached to a planning permission for an energy from waste facility to remove a restriction on the areas from which waste to be received and treated at the facility could arise.

Background

Article 16 of the Waste Framework Directive (Directive 2008/98/EC) (the WFD) requires Member States to develop an integrated and adequate network of waste disposal and recovery installations to enable waste to be disposed of, or recovered, in one of the nearest appropriate installations in order to ensure a high level of protection for the environment and public health.

This is what is referred to as the proximity principle and is translated into Scottish Planning Policy (SPP) as requiring "waste to be dealt with as close as possible to where it is produced". SEPA, in their Thermal Treatment of Waste Guidelines 2009, also regarded the proximity principle as a key land use planning consideration as it sought to avoid "the adverse environmental impacts of unnecessary transport". PAN 63 also states that encouraging those who create waste to take more responsibility their waste, assisting the local economy and lower overall costs are additional reasons for managing waste as close as practicable to the point at which it is generated.

Subsequent to the publication of SPP and SEPA's Thermal Treatment of Waste Guidelines 2009, the Scottish Government published its Zero Waste Plan (ZWP) and, in February 2011, revised Annex B to the ZWP which provides guidance on the "Role of Land-use Planning in delivering Zero Waste".

Revised Annex B to the ZWP provides that "proximity for waste management facilities should be considered strategically as the achievement of a sustainable strategy may involve waste crossing planning boundaries within Scotland". Table 1 of the ZWP allocates the national shortfall in waste management infrastructure required for ZWP targets to groups of local authorities or development plan areas but these allocations are not to be seen as limits.

SEPA have since advised that they will no longer require information about the origin of waste for waste management facility applications and they interpret the revised Annex B as meaning that it is acceptable for waste arising from any location in Scotland to be treated in any waste management facility proposed in Scotland.

North Lanarkshire Judgement

An application for a waste recovery and renewable energy facility was refused by North Lanarkshire in March 2010. On appeal, the permission was granted by reporters appointed by the Scottish Ministers and North Lanarkshire launched a statutory appeal to the Outer House against that decision. The main issue of that appeal was whether "the reporters' understanding and application of national policy is sound".

North Lanarkshire's appeal was refused by the Outer House and some key points to take from the judgement in relation to need and the proximity principle are:

permission for particular waste management development proposals cannot be refused solely on the ground that area need is adequately provided for by existing facilities or existing facilities and potential developments while a significant national shortfall exists;
area need and area provision, including potential provision, will not necessarily be irrelevant considerations in all cases;
the reporters were entitled to attach no weight to, and treat as irrelevant in this case, the area need figure and the facilities potentially available to meet that need, in light of the scale and urgency of the national need for all types of facilities;
that current policy is capable of being interpreted as meaning that the need assessment area, or at least one of the relevant need assessment areas, is Scotland as a whole; and
national policy now subordinates the proximity principle to need and "even tends to drain the proximity principle of content".


The reporters' decision not to impose a condition restricting inputs to the facility to waste arisings from North Lanarkshire was also challenged in the appeal. The judgement states that the reporters considered that national policy precluded such a restriction and the Outer House found no error on the part of the reporters.



East Lothian Decision

Following a public local inquiry, planning permission was granted, on appeal, in December 2010 for erection of an energy from waste with combined heat and power facility at Oxwellmains, near Dunbar in East Lothian. One of the conditions attached to the planning permission restricted the waste that could be received and treated at the facility to waste arising in the East Lothian, Midlothian, Scottish Borders and City of Edinburgh Council areas.



The developer, Viridor Waste Management Ltd, recently applied for variation of that condition to allow the facility to receive and treat waste arising anywhere in Scotland. East Lothian granted permission for the variation with the officer's report stating that the variation was acceptable as "it is now acceptable for waste arising from any location within Scotland to be treated in any waste management facility proposed within Scotland".



This decision would tend to support the Outer House's view that the proximity principle is drained of content by national policy where waste can be received in Dunbar from all over Scotland but not from the north east of England, without written approval of East Lothian.



Comment

The North Lanarkshire judgement makes it clear that area need and provision will not always be an irrelevant consideration but it will not be sufficient alone to justify refusal. However, given the other statements in the judgement, it is difficult to see what role there is for the proximity principle in waste management facility consent applications in Scotland while there is a significant national shortfall.



It seems likely that need will now be assessed on a Scotland-wide basis and conditions restricting inputs to local waste arisings will be difficult to justify although North Lanarkshire has recently announced that they intend to appeal the Outer House decision to the Inner House. The outcome of that appeal may well have significant implications for future waste management facility applications and existing permissions with restrictions on the areas from which waste can be received and treated.



The new draft SPP is expected in spring 2013 and it will be interesting to see whether the sections on waste are updated to reflect the new policy direction.



It should also be noted that the Outer House explicitly stated that the question of whether current Scottish Government policy on waste management appropriately implements Article 16 of the WFD was not a question for determination in the appeal.