UK: Hazardous Waste National Policy Statement Finally Gets Laid

Last Updated: 17 June 2013
Article by Angus Walker

Today's entry reports on the laying before Parliament of the ninth National Policy Statement.

National Policy Statements (NPSs) are apparently the cornerstone of the Planning Act 2008 infrastructure planning and consenting regime, but some of them have been a long time a-coming.  They set out the need for development of particular types and the impacts that developers should mitigate and examiners should assess when applications are made.

Yesterday, nearly two years after a consultation draft was published in July 2011, the government has finally revised the draft Hazardous Waste NPS in the light of consulation (and a report from a Parliamentary select committee), and laid what is likely to be the final version before Parliament.  Parliament must now approve it and it will be republished in 'designated' form, but that is likely to be a formality and no changes are expected to be made to yesterday's version.

The delay is understandable, there were a whopping 28 responses to the consultation (I know it's hard to convey irony online).  That was despite posters being displayed about it in 4000 libraries across the country.  One event was held in London; others were cancelled 'due to lack of interest'.  Some doubt must be thrown on the name of the document accompanying the consultation entitled 'frequently asked questions'.

This demonstrates to me the difficulty of consulting on policy in the abstract, compared with consulting on physical project proposals. I have given this view at various conferences and been shot down - engagement on policy is possible if you do it the right way, I am told.  Maybe so, but the government clearly isn't doing it the right way at the moment. In fact it concedes this in response to one of the select committee's recommendations.

The National Policy Statement can be found here and the document responding to the consultation can be found here.  The NPS was hardly updated at all in response to the consultation, when it was, this was mainly to include more recent data and reflect the cancellation of a lot of planning policy statements.

The Environment, Food and Rural Affairs Select Committee in Parliament considered the draft NPS and produced a critical report, blogged about here.

What did the government do about the EFRA Committee's recommendations? It has published another document responding particularly to them, which can be found here.  There was a debate in the Lords too, but this has not been addressed specifically.  Oddly, the response ignores the first recommendation, and renumbers recommendations 2 to 16 as 1 to 15.  The first recommendation was 'The NPS should be amended so that it is clear on the face of the document what evidence has been used to underpin the assessment of need, particularly in relation to capacity' but perhaps the government has taken this to mean in any amended NPS later.

The government rejects the committee's recommendations on flood risk, in particular the suggestion that the Environment Agency should have a veto over development in high flood risk areas (other than naturally coastal ones such as ship recycling).

The government has taken out references to assessing insect infestation.  The government said it was included since it was listed as a potential impact for other infrastructure types.  I suspect that its origin is that insect infestation is one of the ten types of 'statutory nuisance', each of which must be addressed in an application document.

Another assessment that has been dropped is 'community stress and anxiety', but this may get addressed through conditions (presumably 'requirements').  It is a thorny legal issue as to how much weight to give to unfounded or disproportionate fears about a project.

Rather a good couple of points were that local communities should be encouraged to suggest mitigation during pre-application consultation, a point applicable to all types of project.  There is a natural tendency, if you are against a proposal, not to suggest how it could be made better since that looks like weakening the opposition to the principle, when in fact it need not.  The Planning Inspectorate's advice notes have been amended to improve this.

Another general point that I agree with but the government doesn't, is to give guidance on when applications for below-threshold projects to be 'upgraded' into the Planning Act regime are likely to be successful.  The government declined to do this.

So the suite of NPSs inches forwards.  In about a month's time (once this one is designated) we will have nine out of an originally envisaged twelve.  The three missing ones are on 'national networks' (road and rail), airports and water supply.  The first is held up by a forthcoming roads strategy, the second by the Davies Commission on hub capacity, and the third for no particular reason other than no relevant projects are likely to need one.  I do hope that these eventually emerge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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