Advice to Matthew Sheppard
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- From
- Matthew Sheppard
- Date advice given
- 4 December 2013
- Enquiry type
The enquiry refers to a briefing note from Turley Associates, this note has been included as an attachment as have the explanatory comments of Matthew Sheppard below.
"I am pleased to attach a briefing note on this project, which we would really appreciate your opinion on. Its purpose is to help us understand how you would interpret the Act in relation to two options for disposal of hazardous waste from an existing chemical manufacturing plant. Hopefully it is self-explanatory, but please do give me a call if you have any queries on this, or any supplementary questions to help you understand the context."
Advice given
"Whether the waste is the type of hazardous waste which falls under the Planning Act 2008 (PA 2008 section 30 (s.30) We were unable to conclude on whether the waste referred to in your submission is clearly within the meaning of hazardous waste as defined in s.30(5) PA 2008. If either proposal was progressed via the PA 2008 application route, you will need to be satisfied that the waste is covered by the PA 2008 s.30. It is likely that the Planning Inspectorate would seek a further submission on this matter in the event that either proposal was brought forward as an NSIP proposal.
The DSIT option Our only initial thought on this option is that, given the lack of spatial specificity and the apparent lack of physical containment of the deep disposal element of this option, an NSIP proposal based on this option may be limited to the necessary surface and immediate sub-surface infrastructure. Please see our answer to your question 1 for further advice on this point. A new/varied EP is likely to be required for all of what is proposed.
The WID Oxidiser option We note your view that this option would trigger the need for development consent on the basis that it would involve the final disposal of hazardous waste. There could though be an argument that a proposal based on this option would actually involve the recovery of hazardous waste and that development consent may be required on that basis.
On the basis of your submission it appears that this option (and the DSIT option) may fall within the definition of 'development' in s.32 PA 2008 in that it constitutes or involves operational development. If this was not the case, for example if what was proposed involved works not amounting to operational development, then development consent may still be required if this proposal constituted a material change of use. In those circumstances careful thought would need to be given to the physical extent of the land for which development consent was being sought, and how any change of use interrelated with the existing use(s) of the site.
Hazardous Waste National Planning Policy Statement (NPS) We note that NPS paragraph 4.13.1 refers to 'new and innovative technologies'. However, the DSIT and WID Oxidiser options don’t appear to be specifically referred to in the potentially relevant sections of the NPS, specifically section 3.4 or paragraphs 4.13 to 4.20. If you were to progress either option as an NSIP proposal, you may want to seek a legal opinion on whether the proposal is within the remit of the NPS. Legally, the relevance of this is whether an NSIP proposal based on either option would fall to be considered under PA 2008 s.104 (where any NPS has effect) or s.105 (where no NPS has effect).
Turning to the questions you raised towards the end of your request, we would respond as follows:-
Question 1 How does the Inspectorate interpret S30(1) of the Act, in particular the meaning of the terms “facility” and “construction”? Response The term 'facility' is not expressly defined in the Planning Act 2008 (PA 2008) nor is it defined in the Interpretation Act 1978. We are not aware of any case law on this point. We also note that s.30 refers to a 'hazardous waste facility'. This term should therefore be given it's normal meaning in English, and be considered on an application by application basis.
Firstly, we would need to consider whether what is proposed is capable of constituting a facility, for example by reference to the spatial specificity and physical containment of the proposal. If so, the extent of such a facility is likely to depend on what structures, works and operations are necessary for the construction and operation of the proposed development, and hence the extent of the proposed order land.
In terms of PA 2008 s.30, it is our view that 'construction' could involve the carrying out of development as defined in PA 2008 s.32, for example by the carrying out of an engineering operation, thus requiring development consent.
Question 2 Is the “facility” the seal sands site itself and taken as a whole, suggesting that the small modification to the existing process is not a “hazardous waste facility” as meant by the Act? Answer In this instance it is difficult for us to advise as to the likely physical extent of the proposed facility. It could be argued that the 'facility' should be physically limited to the extent of what development consent is required for. The order land could though also include any associated development and ancillary works necessary for the construction and operation of the project. This could necessitate the inclusion of a larger area within the order limits than just the development requiring development consent. We would need to see further details of what is proposed before we could advise further on this point.
Question 3 Does the Act apply to the “facility” which is being constructed – ie the DSIT or Oxidiser equipment in isolation, and for which a DCO or Planning Permission would need to be sought? Answer As noted in reply to questions 1 and 2 above, the physical extent of the facility would need to include any development requiring development consent and could include any associated development/ ancillary works necessary for the construction and operation of the project.
Question 4 Was the intent of the Act to capture installations whose primary purpose is to dispose of third party hazardous waste, e.g. merchant incinerators, and not hazardous waste disposal operations that are within a wider installation whose main purpose is not hazardous waste disposal and which does not process third party waste? Answer It appears to us that the intention of the PA 2008 was to ensure that all applications or proposed applications for development that trigger PA 2008 s.14(1)(p) and s.30 would be considered through the PA 2008 process. We do not consider that there is a distinction to be drawn between applications for proposed development to handle hazardous waste from 'on-site' or 'off-site' sources. On this point, there is also a possibility that, such a facility, once operational, could at some point in the future, either partly or entirely, process waste from 'off-site' sources/ operate independently from the rest of the Seal Sands operation.