Apologies strange things seem to have happened with downloading two links at the same time yesterday which meant that the earlier post was misleading.
The inspector has now ruled on the issue
The substance of the submissions was
SEWPAG and EoEWAB jointly claim the NLWP has failed in the duty to co-operate in that it has failed in its obligation “to engage, constructively, actively and on an on-going basis” with regard to the development of the Plan. The Councils have not engaged actively with the planning authorities outside London when preparing the Plan and no evidence has been adduced to show any such co-operation.
The Councils responded, accepting that in relation to the preparation of development plan documents, S33A “imposes a duty on specified bodies to co-operate with one another if there are strategic matters planned in the Plan”. They also submitted that S33A of the 2004 Act defines a “strategic matter” very narrowly. The relevant definition is “sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas…. .”
The Councils stated that the Plan is not proposing any development or use of land which would have a significant impact outside the 7 Boroughs (which constitute “the Councils”). The Councils claim that the statute expressly limits itself to particular development proposals.
Moreover, the Councils submitted that a “planning area” as defined in the Act, does not include County Councils such as Essex, Oxfordshire, Hertfordshire,Surrey, Buckinghamshire and Northamptonshire. They are non-qualifying Councils for the purposes of the Plan.
The NLWA supported the Councils and added that in order to demonstrate that the duty was engaged in relation to areas outside London, it would be necessary to establish that policies for development or use of land would have a significant impact. No evidence has been produced to demonstrate such an impact.
Following the inspectors statement of the law he goes on
I agree with the Councils that S33A does not state explicitly that waste management is a strategic matter. Nevertheless, the National Planning Policy Framework (NPPF) includes “the provision of infrastructure for …, waste management, …” as one of the strategic priorities for the area in the Local Plan. (para 156) In addition, the NPPF states (a) that “local planning authorities should work with authorities and providers to assess the quality and capacity of infrastructure for … waste … and its ability to meet forecast demands; …” (para 162); and (b) “Public bodies have a duty to cooperate on planning issues that cross administrative boundaries, particularly those which relate to the strategic priorities set out in paragraph 156.” (para 178) Therefore, I consider that waste management is capable of qualifying as a strategic matter for the purposes of S33A. Indeed, given that there are extant Regional Advisory Bodies which have been created to examine the regional element of waste management, and that waste which arises in one council area is often managed or disposed of in another, I would say that there is every expectation that waste management should be treated as a strategic matter.
No surprise here. I would make a distinction between a ‘strategic matter’ under section 33A – which includes ‘sustainable development or use of land that has or would have a significant impact on at least two planning areas’ and the ‘strategic priorities’ which is a statement of national policy of what the SoS considers issues which may have a ‘significant impact’. But this is policy and not the law and other matters which may have a significant impact will require co-operation even if they are not listed in the NPPF. There are a few examples, such as coastal zone management.
On the ‘planning area’ issue.
I have had regard to this interpretation of S33A but, in any event, a district council (including a metropolitan district) is defined as a planning area. Accordingly, at the very least, notwithstanding that waste management is a county matter in a two tier area, I consider that where there is (or could be) a significant impact involving a strategic matter, there would be a duty to co-operate with either the county council or the district council where at least two planning areas were affected. Additionally, county councils which are waste planning authorities would qualify as a “person” with whom there must be co-operation under S33A(1)(a) because they are the local planning authority for waste management.
On the argument that no site proposed effects neighbours
this stance ignores the fact that waste which arises in the NLWP area is being exported to be managed elsewhere and the cumulative effect of the policies in the Plan is to perpetuate the pattern. Indeed, as the NLWP acknowledges, “However, even at the end of the plan period, waste will continue to cross boundaries for treatment.”(para 2.31); and “There are no sites for landfill in north London. Historically the area has been reliant on landfill sites outside the region. This reliance will decline as north London’s new waste facilities come on line and waste is treated higher up the waste hierarchy. However, even when greater self-sufficiency has been achieved there is still likely to be a requirement for some types of landfill, particularly for non-biodegradable and non-recyclable waste.” (para 2.32)…
the lack of provision for managing all the waste arising from within north London will result in its continued export, albeit perhaps at a reduced level. SEWPAG and EoEWTAB have calculated that in 2009 about 480,000 tonnes (t) of household (MSW) and commercial and industrial (C&I) waste was exported from north London to landfill outsideLondon. The significance of the movements is a matter of judgement. However, the transport of about 144,000t to Buckinghamshire, 100,000t to Northamptonshire, 71,000t to Bedfordshire, 66,000t to Hertfordshire and 52,000t to Essex, in my opinion, is likely to have a very significant impact on the areas where the waste is received and possibly on the transport routes along which it is moved. The import of waste could also take up landfill or other waste management capacity which might be better used by locally produced arisings.
Accordingly, I conclude that the absence of policies or proposals in the NLWP to manage all the waste arisings and the consequent continuation of the export of waste would be likely to have a significant impact on at least two planning areas by virtue of the waste being managed or deposited in them. Consequently, the North London Councils have a duty to co-operate with the councils representing the “planning areas” in which the waste would be managed or deposited.
I note the claim by the NLWA that the NLWP is based upon the apportionment in the London Plan, that the London RTB has engaged with representatives from the South East and the East of England and that there is no need to repeat the engagement process. However, the London Plan was prepared before the coming into effect of S110 of the Localism Act and I do not consider that the Councils are absolved from the duty to co-operate as described in the 2004 Act and the NPPF.
I agree with all of this apart from the last paragraph. I find this very difficult to square with the findings of the BANES inspector following legal advice that the duty does not apply retrospectively.
In London Boroughs effectively grant the GLA/Mayor of London agency power to act on their behalf on negotiating strategic waste apportionments outside London.
The inspector did not once cover the powers and duties of the GLA/Mayor of London on waste planning and development plans. To my mind that is a major omission because if the Localism Bill intended to change these and require regional apportionments to be argues twice then it would have amended the 2002 GLA Act, it did not. I find it ridiclous to argue that these should be argued twice because if in a joint waste plan these did not pass the ‘general conformity’ test they would be unlawful. The inspector here then is arguing that the Boroughs should place themselves into a deliberate position of non-conformity.