When the current Government came into power in 2007, they indicated that their primary policy objective was driving "sustainable economic growth". At the time that policy directive came into being the economic picture was very different from that which now prevails not just in Scotland, nor the UK but throughout much of the developed western world.

In September 2011 the Scottish Government published "The Government's Economic Strategy". This document repeated the desire to drive forward "sustainable economic growth", recognising however the challenges that existed to do that. The document however also recognised the benefits that might flow from an economy that was truly sustainable. Indeed one of the specific strategic priorities was seeking to translate the Scottish economy to a low carbon economy. At page 53 the document stated:- "The better we are able to adopt low carbon practices, the greater our comparative and competitive advantage will be relative to our competitors. The focus on resource efficiency will also help the Scottish economy become more resilient to increasing global demand for scarce resources".

The document went onto note that adopting low carbon technologies and funding innovations would provide significant growth opportunities for Scottish companies.

The Government's commitment to sustainability however embraces other issues apart from the low carbon economy and the generation of electricity from renewable resources. In Scottish Planning Policy which appeared in February 2010 the issue of waste management was addressed in the context of a commitment to achieve "zero waste as a goal". Specifically this was stated to mean "eliminating the unnecessary use of raw materials, sustainable design, resource efficiency and waste prevention, re-using products wherever possible and recovering value from products when they have reached the end of their life either through recycling, composting or energy recovery".

While this is a different element of Government policy the underlying objectives are not dissimilar to some of those which underlie the desire to achieve a low carbon economy addressed in the Government's Economic Strategy.

Scottish Planning Policy deals with specific issues in relation to how waste should be managed in the context of a hierarchy which "favours prevention over re-use, recycling, recovery then disposal" (Paragraph 213).

Traditionally much of the waste produced in Scotland has gone to landfill. Scottish Planning Policy acknowledges that while landfill will continue to be required for residual waste, significant changes had to be made with a policy objective to increase the proportion recycled or composted to 70% by 2025, a 5% limit on landfill waste by 2025 and stopping the growth in municipal waste by 2010.

The policy set out in the Scottish Planning Policy in relation to waste was significantly amplified by the Scottish Government's Zero Waste Plan which appeared in June 2010.

This set out a vision in the following terms:- "This vision describes a Scotland where resource use is minimised, valuable resources are not disposed of in landfill, and most waste is sorted into separate streams for reprocessing, leaving only limited amounts of waste to go to residual waste treatment, including energy from waste facilities".

The document repeated the hierarchy referred to above and deals specifically with landfill. Specific mechanisms were given as to how the amount of waste going to landfill would be reduced (see Action 4 on page 6 and Annex C) and then dealt with specific issues in relation to landfill in a separate annex, Annex B.

Annex B appears to be intended to be a "dynamic" document to take account of the changing position as zero waste targets are implemented and new technologies come forward. In particular the two tables which are part of Annex B are to be updated on a regular basis. Table 1 sets out the operational waste management infrastructure which will be required to meet Zero Waste Plan targets, while Table 2 sets out (by Development Plan area) the 10 year rolling landfill capacity which is to be maintained (reflecting the fact that some waste will have to go to landfill). The intention appears to be that this capacity will be measured on a Scotland wide basis rather than on a regional or sub-regional basis.

Annex B specifically acknowledges that the planning system "has a crucial role in delivering waste management facilities" but that even "with high recycling targets, there will be waste from which no further value can be recovered and which requires to be landfilled (up to a maximum of 5% of Scotland's total waste arising post 2025)". Paragraph 4.11 notes that "the Scottish Government will deem Scotland a having an adequate network of landfill capacities so long as capacity sufficient for 10 years is maintained. It should be noted that the 10 year rolling capacity for landfill will reduce over time in order to achieve the long term Zero Waste Plan target of a maximum of 5% of Scotland's annual waste arisings being landfilled by 2025".

Table 2 is in effect the way in which that 10 year capacity is to be measured. Table 2 is to be updated annually by SEPA though as Annex B notes any remaining capacity with the existing landfills needs to be taken into account when deciding whether or not the Table 2 requirement has been met.

While the intention appears to be that Annex B should provide a relatively straightforward means of deciding whether sufficient capacity exists to meet the requirement of the position in practice (as can be seen below) is rather more difficult.

The new Strategic Developments Plans which are coming forward in terms of the Town & Country Planning (Scotland) Act 1997 (as amended by the 2006 Planning Legislation) recognise that dealing with waste is a significant issue for the planning system to address. The consultation period in respect of the Aberdeen City & Shire Strategic Development Plan Main Issues Report closed at the start of 2011. That included a number of paragraphs dealing with waste management which acknowledge that meeting the Scottish Government's "extremely challenging targets... will need significant new waste management facilities to process and treat waste". Paragraph 7.20 states "there is now an urgent need to put the Zero Waste Plan into practice". Three options are identified for the area of the Strategic Development Plan namely being a net importer, being self sufficient (the preferred option) or being a net exporter. In relation to waste the document suggests that while there are sufficient landfill sites in the Development Plan area issues may arise and again raises three options namely granting time extensions in respect of existing sites, extending sites or bringing forward new sites. The preferred option is granting time extensions in respect of existing sites, though this is an option very much for discussion. The document also sets out options in relation to the principles which should be used to identify the locations for new waste management facilities. Again three options are discussed. Waste management facilities are of course extremely contentious and often raise significant issues for local residents.

SES Plan which covers a significant part of the south east of Scotland also deals with the issue of waste in the proposed new Strategic Development Plan, the period for representations in relation to this having just closed. Again this suggests that there is sufficient capacity for landfill within the Development Plan area but sets out a specific policy to deal with the issue of waste management and disposal in the following terms:


Local Development Plans will:

  1. Encourage proposals for the recycling and recovery of waste where the proposal is in accordance with the Zero Waste Plan, taking into account relevant economic, social, environmental and transport considerations;
  2. Consider proposals for landfill development where the need for the facility is supported by the Zero Waste Plan and SEPA Landfill Capacity Reports, and taking into account relevant economic, social, environmental and transport considerations; and
  3. Safeguard Easter Langlee, Millerhill Marshalling Yards, Oxwellmains and Westfield as sites for waste treatment facilities."

The policy directive is clear albeit challenging. However issues may arise in relation to the practical implementation of the policy directive as was shown by a recent decision on a planning appeal concerning Aberdeenshire Council. As with any decision much depends upon the underlying facts and the facts in this case (planning appeal reference PPA/110/2031 – Wester Hatton) were unusual. The site at Wester Hatton had originally been granted planning permission in October 1999 with a lifespan of 10 years. This period was apparently based upon information provided at the time as to the likely timescale for completing landfill at the site (which was a former quarry site). In fact the site was mothballed shortly after the permission was granted and the new owners sought to vary a condition in effect to allow landfilling to continue until October 2029.

Since the time the facility was first consented, significant changes have taken place in relation to waste policy generally, rehearsed above. A key document in relation to the appeal was the Zero Waste Plan and the need to maintain a 10 year capacity in accordance with Annex B. While there were a number of other issues raised by the Council and local residents, it was accepted by all the witnesses (and indeed the Reporter) that probably the key issue was policy in relation to landfill.

The Reporter was critical about the way in which the application had been dealt with by Aberdeenshire Council. In effect he carried his own assessment in relation to the Development Plan and reached the conclusion that notwithstanding the concerns raised the application (to vary a condition) did not conflict with the relevant policies to any great extent. One of the criterion in the relevant policies referred to a superseded Scottish Government policy document on waste. The Reporter held (following the approach of the witnesses for both the applicants, the Council and a third party who took an action part in the Inquiry) that this policy should be read as if the reference in it was to the Zero Waste Plan.

It was in this context that the difficulty for the applicants (appellants) then manifested itself. The Reporter rehearsed the conflicting evidence he had received in relation to the extent to which there was a 10 year capacity (as required by Annex B in the relevant Development Plan area – Aberdeen and Aberdeenshire). Having been presented with two different scenarios the Reporter concluded:-

  1. That the 10 year rolling landfill capacity is likely to be reduced on a year by year basis though the extent of that reduction could not be predicted.
  2. That whatever scenarios are modelled not a great deal of confidence could be placed upon then when it was clear the amount of waste going to landfill would reduce however the extent of that reduction was difficult to predict.
  3. Based upon the evidence that was available there was a shortfall at the present time, the need for capacity would reduce as would the shortfall with the conclusion that no proper case for an extension until 2029 (20 years) had been made.

Part of the case put forward by the applicants was a need for a 20 year extension to allow the original restoration plans to be complied with. The Reporter did not think this was sufficient justification. Perhaps more significantly the applicants sought to argue that a 20 year extension was necessary to make the required engineering works including the remediation of existing contamination commercially viable. While the Reporter acknowledged that this might well be an issue it was not "a material planning consideration" and therefore refused the appeal.

The Reporter did suggest that a shorter extension might well be "acceptable" but concluded he could not in fact grant a shorter permission given the position adopted by the applicants and indeed the Council (both of whom took the view that granting permission for a materially shorter period that than applied for was not competent – a position which the Reporter accepted as correct).

Specifically in his conclusion the Reporter commented as follows:- "In relation the Zero Waste Plan, there is a shortfall in landfill capacity in Aberdeen City and Shire compared to the requirements set out in Table 2 of Annex B. That requirement can be expected to diminish progressively as the policies and targets of the Zero Waste Plan take effect, making it very difficult to predict the likely need for landfill capacity in the long term. Overall there is justification for the continuation of landfilling operations at Wester Hatton but the level of uncertainty is so great that the case has now been made out for the extension of its life until 2029".

While as noted above that case very much turns upon its own facts, the issue which may arise is the difficulty in finding operators prepared to open up new landfill sites (where otherwise justified in policy terms) if the operational life of the facility is to be limited in the first instance to 10 years. That may indeed not be a commercially viable proposition. It is interesting to note that Aberdeenshire Council shortly before they refused the Wester Hatton permission had granted permission for another site at Howe of Byth where the permission was indeed subject to a review after 10 years, the purpose of that review being to ascertain the extent to which the site was still required.

While Annex B makes clear that the 10 year capacity is to be looked at on a Scotland wide basis (and it is interesting to note the approach that the Main Issues Report in relation to the Aberdeen City and Shire Strategic Development Plan takes – one possibility postulated though not preferred is for the Development Plan Area to be an exporter of waste) other issues concerning sustainability are likely to be relevant to the siting of waste facilities. Is it appropriate for waste that has to be landfilled (noting that the Zero Waste Plan accepts that some waste will have to be landfilled) to be transported significant distances for disposal?

The Wester Hatton decision is one (like most decisions) that turns upon its own facts. However the practical issues identified by the Reporter in determining that application may well be relevant to other cases and made indeed show a tension between the acknowledged need for landfill on an ongoing basis and properly planning for that landfill requirement.

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.