Surrey Waste Plan Examination in Public

Site Specific Session for the Clockhouse Brickworks site held at County Hall, Kingston upon Thames on 17, 21 and 23 September 2007

Summary of key points from Counsel's Closing Remarks

Introduction

•  The SWP is inherently unsound in its allocation of the Clockhouse site for waste uses and particularly in respect of what is clearly the intention of its proposed suitability for an Energy From Waste incinerator ("EfW").

•  This has been exposed and demonstrated conclusively through the representations, expert evidence and the discussions at this examination. But these remarks seek to summarise some of the main points as to why a finding of unsoundness should be inevitable, whether as a matter of law or planning judgment.

•  The structure of this summary is to address:

•  SWP and the test of soundness.

•  Legal and policy requirements

•  The unsoundness of the allocations having regard to planning policy, locational sustainability, the effect of vortices, air quality and health, nature conservation, ecology and failure to assess alternatives.

3a SWP and Soundness

This examination has revealed that SCC's allocation of the Clockhouse site is not based upon any comparative assessment of its suitability or appropriateness. It cannot possibly be determined that the Clockhouse allocation is the "most appropriate" allocation in all the circumstances for a thermal treatment site (the only other two they are proposing being subject to a test of very special circumstances) where there has been no comparative assessment of its suitability against these two other sites, or all other sites which were considered earlier but rejected, such rejection itself based on a flawed assessment.

Another key aspect of soundness is that the assessment of what is most appropriate in all the circumstances must be founded on "a robust and credible evidence base". So far as Clockhouse is concerned, it is not rationally possible to conclude that a robust and credible evidence base exists., as will be examined further below:

Nowhere in the assessment was it ever acknowledged or accepted that the landfill site (stage 2) should be treated as a greenfield site (having regard to the planning history). That is now common ground but you will not find it reflected in any of the SWP, or the evidence base. In fact the assessment of landfill stage 2 has proceeded on the erroneous basis that this could be treated as an active mineral workings site. This is a fundamental error which is both deeply prejudicial to the SWP allocation process, and also deeply unfair to the public community and vitiates the community involvement process. Nowhere will you find that SCC were properly directed in their consideration of the Clockhouse Site that the main area under consideration should have been treated as an entirely greenfield site.

In any event, the site assessments simply fail to grapple with basic locational issues relevant to key legislative objectives. For example, whereas the issue of the Green Belt has been given overriding importance in SCC's approach, nowhere does the site assessment reflect, for example, Clockhouse's greenfield status, Clockhouse's countryside status (deep in the countryside), Clockhouse's comparative locational status being the most distant site from the main urban areas; Clockhouse's unique location under the flightpath to Gatwick with the consequent interaction between any plume assumed for a stack and aircraft vortices.

The decision to include the Clockhouse site was based on an assumption that (in landscape terms) it has "a high capacity to absorb the visual impact of a major waste plant" whereas in fact the first landscape assessment concluded that the effects would be "exceptionally severe" and that the capacity to absorb change was low; and this was subsequently changed without any credible explanation to "moderate". (In this respect it is relevant to note that Bell Fischer recommended only sites with a high capacity to absorb the potential development should be considered.)

The suitability of Clockhouse for such other uses has not been addressed in the evidence base. The assessment material shows that it was examined in respect of an EfW plant (i.e. in landscape terms), but there has been no assessment of how continuation of any other waste use could possibly be justified on a greenfield site, in the countryside, subject to a restoration condition, which is one of the most distant from the urban areas and would infringe the proximity principle (dealt with below).

SCC's lack of evidence in its evidence base has been expressly acknowledged: for example, in transport assessment terms it is clear that basic information on waste transport patterns was not collected. In relation to air quality, it is clear that even basic background levels of pollutants were not considered. If SCC really had wished to advance a strategy which depends on the construction of 1 or 2 EfW incinerators, it was certainly incumbent upon them to identify sites which they in fact knew were suitable and, comparatively, the most appropriate. The examination has demonstrated that neither of these criteria is met on SCC's own evidence.

It is clear that a sound plan must include key strategic allocations for implementing the overall strategy and that the plan must be deliverable. SCC has (wrongly) sought to rely upon EfW incinerators as a key part of its strategy. It is self-evident that it should be able to identify where such facilities are to go based upon a robust and credible evidence base. Yet that is precisely what has not been done. In response to the many fundamental objections to the use of Clockhouse which have not even been considered, let alone addressed, in the SWP process (e.g. greenfield status, locational sustainability, vortices, air quality, health, landscape, nature conservation), SCC's only response has been to suggest that these are matters for development control. But that is either disingenuous or misconceived. It is disingenuous because it is clear that other sites have been eliminated from the SWP selection process on these types of issues, yet no comparative assessment is offered for the Clockhouse site. It is misconceived because it is contrary to good spatial planning, as well as deeply unfair to local residents, to allocate a site as "suitable" for such a facility in circumstances where SCC had the ability to collate basic evidence which would address that issue of suitability in short order which would have revealed it as inherently unsuitable.

3b Legal and Policy Framework

Legal Requirements

The formulation and assessment of the SWP are subject to a number of overriding legal requirements under European law. These are not voluntary and they are fundamental to the soundness of the SWP. SCC is required to prepare and deliver a planning strategy that is consistent with European legal obligations, and which supports and complements other guidance and legal controls. It should go without saying that a failure to understand or apply these obligations will render the SWP unsound.

There are at least four fundamental areas of European law which SCC and the SWP has either failed to understand, or simply failed to apply, in drawing up the SWP and allocating the Clockhouse site. We can take these in turn.

The Proximity Principle

SCC has made it clear that it believes the proximity principle no longer exists. When pressed on this topic, it was contended that the principle of referring to waste being disposed in one of the nearest appropriate installations applied only to disposal, and this did not cover EfW incineration as this was a waste recovery use not disposal.

SCC is wrong as a matter of law. Its consequential approach to allocation is fundamentally unsound. First, it is manifestly wrong as a matter of law to suggest that there has been any overall change in the existence of the proximity principle. This term was only ever shorthand for a fundamental legal principle of EU law enshrined in the relevant Directive. There has been no material change to its status or its meaning. The "proximity principle" remains as alive and valid now as it did before.

The proximity principle means that it is a central objective which is obligatory and must always be kept in mind when making a relevant decision. It is clear that the formulation of the SWP, and in particular the allocations of potential sites for waste use, is one such decision. Not only has SWP ignored it as an objective, but they have obviously regarded it as no longer in existence.

SCC has failed to apply European law. First, SCC has clearly treated this as only a material consideration, rather than as an objective. Secondly, SCC has failed to apply it in any event to considering Clockhouse on the basis that they consider EfW incineration is recovery rather than disposal.

Incineration amounts to disposal of waste and is expressly defined in the European Directive 2006 as the thermal treatment of waste with or without combustion for recovering energy. It is regrettable that SCC clung so obstinately to the notion that EfW incineration was not disposal, but recovery. It is clear why SCC had to cling on to this flawed meaning because it is fundamental to the approach that SCC has adopted to the SWP.

The SWP should have had the objective of the proximity principle informing it at all the time. The reality is that there has been no application of either the proximity principle, or the assessment of whether Clockhouse is indeed the nearest appropriate installation for disposal by incineration at any stage.

Article 4 Objectives on Health

A nother fundamental objective from the Directive and applicable in the formulation of the SWP is the need for SCC to take the necessary measures to ensure waste is recovered or disposed of without endangering human health, and without risk to the environment or without causing a nuisance through noise or odours. Again, as an objective, this must be kept in mind at all times and is not just another material consideration. Indeed the 2006 Directive makes the protection of human health and the environment one of the essential objectives relating to waste management.

The examination process has revealed that the site selection process has not involved any comparative assessment of the suitability of sites against these objectives, and therefore inevitably no assessment of whether such objectives are achieved or such harm is minimised. For example, in relation to air quality, there has not even been an assessment of whether Clockhouse is suitable in itself by reference to (for example) existing background levels of pollutants. This approach is completely contrary to the whole thrust of the Directive, and SCC's plan making functions. It is a complete abrogation of the proper allocation process. This is dealt with again under each of the topic headings below.

Article 4 Objective on the Countryside

Likewise, it is a key objective of the 2006 Directive to recover and dispose of waste without adversely affecting the countryside. SCC accepted that the site selection process for Clockhouse pays no regard to this objective, and there is no ranking or scoring which takes account of the inevitable conflict that use of the Clockhouse site (located deep in the open countryside) would present. Again, this is contrary to the whole thrust of the Directive and the requirements on the SWP.

The Precautionary Principle

Linked to the above, the precautionary principle is applicable under European environmental law. Where there is a reasonable suspicion of harm, a lack of scientific certainty or consensus must not be used to postpone preventative action. This principle should underpin the whole of the SWP, but it has particular potency in relation to the allocation of Clockhouse for a waste use and, in particular, a thermal treatment facility. SWP has failed to apply this principle at all, as is particularly demonstrated in relation to issues of air quality and health.

Alternatives

The need to consider alternatives is a basic requirement, but is particularly important when making site specific allocations for particular waste uses. The need is all the more acute when dealing with allocations for thermal treatment sites, where SCC is proposing merely 3 potential sites for the whole County. But additionally, it is a fundamental requirement of European law. It has become patently obvious that SCC's approach simply does not meet these basic requirements.

It has now asserted the Clockhouse allocation is not based upon any comparative assessment of its suitability for the uses proposed, and particularly the thermal treatment uses for which it is plainly being set up. This is a breach of European law, but also a basic failure of soundness. How can SCC possibly advance the Clockhouse site as being the suitable site for thermal treatment (the only other 2 needing to demonstrate very special circumstances!), where there has been no comparative assessment of its merits or otherwise against those other 2 sites, let alone any other site in the Council's area? This is nothing short of a nonsense. Not only is it unlawful, but it is contrary to the whole thrust of the proper spatial planning for waste, particularly with regard to an element which SCC has identified as a key part of its strategy for waste disposal, namely provision of an EfW Plant.

3c General Unsoundness

Planning Policy

A lthough there has now been a concession about the greenfield status of the former Landfill site has now been made, it formed no part of the SWP formulation, or the site assessments or any report to the Council. SCC in fact approached the site selection of the Clockhouse site erroneously as a composite whole, treating it as a single planning unit, and purporting to treat it as a mineral workings site. On this basis alone, the site assessment process is unsound. There has simply been no assessment of the Clockhouse site by reference to its true planning status.

Moreover, as a greenfield site, deep in the open countryside, remote from the urban areas, and where there is already a continuing unlawful breach of planning control in the operators failing to restore it, it is inherently unsuitable for the types of waste use that the Council is proposing. If the Council had applied a proper sequential approach (which it has not), it would have been at the very bottom of any sequential site search. Again, on this basis the SWP's identification of the Clockhouse site is unsound.

The failure in respect of the proper identification of the former Landfill's planning status goes beyond a fatal flaw in the application of any assessment of suitability and an application of the sequential test. It also means that the Council has failed to have any regard to the importance to local communities of fair treatment in respect of former waste uses. This means that the whole process of community involvement, and assessment of the public interest by SCC has ignored a fundamental concept of fairness.

The examination hearing has proved to be all the remarkable because it has revealed something which is seemingly incredible. It has been stated on behalf of SCC that the site allocations have not involved any comparative assessment of their merits. This approach is flawed. It is also completely untrue, as the landscape assessment demonstrated. There has been revealed to be an inconsistent approach where the Clockhouse site has been ranked in respect of one environmental effect (where SCC argue Clockhouse scores well) but not ranked and compared with those effects where even SCC is driven to concede it fares poorly. This approach is manifestly unfair, inconsistent and unsound.

But the approach (in saying that there has been no comparative assessment) is also impossible to understand. Contrary to what is asserted, there patently has been some sort of exercise of selection, and we presume it inevitably must have involved selection of sites based on their attributes. The process remains shrouded in mystery. But it is plain that there must have been some basis for not choosing some sites which relate to their comparative merits. For example, why was Wisley Airfield not selected for thermal treatment, if not based on judgments, which are plainly referable to a comparative assessment (be it landscape, ecology, location, site availability etc). None of this makes any sense.

One factor which plainly has been applied by SCC is that of Green Belt status. This did feature in the site assessment process, but it has clearly been seen as a significant obstacle to future waste use. The site allocation of Clockhouse is flawed on that approach as follows on the basis that government and regional policy make clear that Green Belt (GB) should not be seen as precluding waste use allocations, particularly where a Council area is covered by a large proportion of GB (which is clearly the case for SCC). One way of doing this is to promote alterations to the GB in conjunction with the Waste Plan allocations. SCC has ignored this, or any other approach. P lanning authorities are specifically advised to adhere to a number of principles in preparing planning strategies, including that of considering waste management alongside other spatial planning concerns. This has been ignored by SCC as MVDC confirmed, in that MVDC had not been approached by SCC to consider changes to GB.

S CC deny that the SWP creates any preference for Clockhouse in policy terms. That is clearly not the case on any commonsense analysis. But in closing remarks, what better way of testing the way the policy is likely to be interpreted by members of the public, other than in SITA's own assessment set out on page 29 of Pre Application Consultation Draft paragraph 4.13 which states that:

"Clockhouse Brickworks is identified as the preferred site with the remaining sites being safeguarded for thermal treatment use only if there are very special circumstances that warrant an exception being made to Green Belt policy."

Transport and Location

Another fundamental element of the unsoundness of the allocation of Clockhouse in policy terms is the assessment of its locational sustainability.

By contrast to the absence of any material evidence base to support the allocation of Clockhouse on locational sustainability grounds, the objector has produced evidence which demonstrates the fundamental unsoundness of that approach. In answer, only 3 criticisms were made by the SCC of that evidence, each of which is as misconceived as the other.

The first was that the figures would change if a greater proportion of waste were to come from Epsom. There is no evidence to demonstrate this is a likely scenario, as the level of waste being processed at Epsom indicates that it is processing the amount of waste that arises in the area. But in any event, the figures based on the applicant's pre-application draft planning application for an EfW Incinerator (approx 90,000 tonnes per annum) would only result in a reduction of 250,000 km tonnes per year, which would still leave Clockhouse with a figure of 3.25 million, a figure way in excess of any of the other comparable sites.

The second was that the figures did not take account of waste collection in the MVDC area which would go direct to Capel, rather than travelling via Epsom. No account of this has been taken by SCC in demonstrating that the junction would in fact be able to accommodate such movements (the max number they have assessed as acceptable so far is 90 vehicle movements), but in any event this amount of waste is a small fraction and therefore would only result in a minor change in the overall km tonnes per year.

The third was that it did not compare the position with waste currently going to Maidstone . It was impossible to understand this point, as the SWP is meant to be based on self-sufficiency and therefore it is not based upon any waste going to Maidstone . SCC confirmed that this was not in fact a point of criticism.

As to the locational suitability of the site in terms of traffic access, the reality is that the site is accessed from a road with poor accident record and it is clear that one of the factors that was considered and relied upon by SCC in its assessment was the prospect of improvements to A24 then in contemplation. These are no longer a likely prospect for the purposes of the plan, and it was agreed by SCC that the decision should be taken on the basis that funding would not be available. The fact is that this site is located poorly in locational terms in respect of this road.

Landscape

The hearing today has demonstrated that the allocation of Clockhouse is unsound on landscape and visual impacts.

The only assessment that SCC has carried out in landscape and visual impact terms has been for an EfW incinerator of approximately 30m high with a stack of 70m. There has been no assessment for any other use. The assessment did not address the actual planning status of the landfill site at Clockhouse as a greenfield site, although it was accepted on behalf of SCC that this would be necessary.

In any event, the 1995 assessment and professional judgment of SCC's own professional consultants was that the impact of such a facility would be exceptionally severe, and the area had a low capacity to accept such an impact.

In 2005 the assessment was reviewed. Despite any physical material change in circumstance, and only an increase in the likely scale of proposed development, the assessment was changed from one of low capacity to accept the impact to moderate capacity. This is just a change of view which is not referable to any actual change of circumstance. It conflicts with the earlier assessor's view, and the opinion of CAG's professional advisor. In the absence of any justification for the change of view, it should be treated with caution. In any event, even on that assessment which SCC's professional advisor confirmed remained his professional view, the site was assessed as only have moderate capacity to accept impact, and his professional advice to you was that the site should be rejected for such a facility on landscape and visual impact grounds.

Therefore the only professional advice which is before the examination is that the site should be rejected on landscape and visual impact terms. There is no evidence to support a view that the site has a high capacity to accept landscape and visual impact terms.

Nature Conservation

The unsoundness of the SWP in respect of Clockhouse was reviewed in evidence today. By way of short summary only legislation requires that an assessment must be carried out which identifies, describes and evaluates protected sites and species (amongst other things). It was accepted that the material in the SWP does not evaluate the effects of the proposal on a number of relevant sites. The effect is that there has been a failure to comply with European legislation generally, and specifically in respect of the Clockhouse allocation.

SCC makes an assertion that the waste use at Clockhouse could be mitigated in respect of Great Crested Newts and bryophyte flora, but there is no evidence base to support this assertion. Moreover, SCC's approach is inconsistent with its approach on mitigation to the three sites which have been excluded from the SWP on grounds that

mitigation is not sufficiently possible. The evidence before the examination demonstrates not only that there is no robust evidence base for the identification of the site having regard to ecological considerations, but also that the SWP is clearly in breach of the European Directive as no proper assessment has been undertaken.

Vortices, Air Quality and Health

It is now common ground that wake vortices are created by 'planes flying into Gatwick on the flightpath that takes them almost directly over the proposed Capel waste use, and that these vortices will be experienced over the entirety of the site and in the general area of the Clockhouse site. This is not something which can be mitigated, as the flightpath is fixed and the instrument landing system requires 'planes to fly over it. It is common ground that this will occur for approximately 1/3 of the time (i.e. 33%) resulting in some 44,000 planes creating vortices, with the future likely to bring increases in the numbers, and increases in the size of the planes which in turn will give rise to stronger and more long-lasting vortices.

It is also common ground that this is a unique feature among all the sites in the SWP.

Notwithstanding both these points, the effect of wake vortices was never considered by SCC in any of the assessment material before examination and not subject to any assessment. The reality is that it was an effect which was simply never appreciated by SCC. It is clear it should have been, as such an effect is plainly capable of affecting the inherent unsuitability of the Clockhouse site for an allocation which was based upon an EfW incinerator being accommodated there. It is important that SCC has now recognised and does not dispute the existence of these vortices, but that acceptance has come far too late in the SWP process.

SCC's only response now before the SWP is to assert that it will not cause any material problems. This appears to be based upon two assertions: (1) that a vortex would break up the plume, and not caused increased concentrations of pollutants at ground level when interacting with the plume from the stack; and (2) an assertion that the increases in concentrations would not be material in any event.

Neither assertion is supported by any evidence base, let alone a robust and credible on. All that SCC did was refer to the DVD and photographs demonstrating the vortex effect, and made a claim as to the effect on the plume. This is unacceptable for any number of reasons.

As a matter of commonsense, it is contradicted by the DVD and photograph material, all of which shows the creation of a whirlpool effect from a vortex (unsurprising given that it is created by low pressure at its centre) which sucks in material around it, and then sinks to the ground. The downward effect was not in fact eventually in dispute. But it does not make any sense to suggest that the vortex will not sink with the potential pollutants of the plume with which it has reacted to ground, whereas previously the plume would have had gone upwards as a result of thermal buoyancy. The fact that convective effects on some days may also add to the downward nature of the plume can hardly be a basis for saying that the additional vortex effect is not of concern.

Even if there were room for doubt, it is clear that it is up to the Council to demonstrate that it has a robust and credible evidence base for failing to assess this effect. It does not. SCC's assertions are not supported by a jot of empirical evidence, and are merely contained in a witness statement made for the purposes of the examination hearing, and not based upon any material to back it up.

In any event, the SCC has simply no excuse for not obtaining evidence to consider this effect. Both the precautionary principle, and a general approach to assessment of an allocation of this kind, mean that the lack of data should mean a precautionary approach should be adopted. But in this case there is no good excuse for lack of data, and it was reasonably obtainable. SCC confirmed that it could have been assessed through monitoring of the current position at the Brickworks as CAG's air quality expert explained. The only answer to why it had not been done was that it might have been expensive. But there is no evidence to suggest that SCC ruled it out based on expense, nor any credible evidence base to suggest that it was too expensive.

It is wrong in principle to allow an issue which is unique to a proposed site, which is capable of assessment through the ready collection of data, and which could potentially preclude a site from coming forward to be left for future assessment. Not only is this prejudicial to the public purse, it is contrary to spatial planning principles and deeply unfair to the local community and the integrity of the plan as a whole.

The objectors have demonstrated that Clockhouse is uniquely affected by vortices, and the evidence they have produced shows that it would result in pollutants being brought down into the area contrary to the objective of any stack. SCC has failed to consider this at all, but in any event has failed to support its new assertions that this would not have any material effect, despite the clear ability to test the situation now.

The significance of the problem is readily demonstrated when it comes to issues of air quality and health. As CAG's air quality expert has demonstrated, in addition to the adverse effect on particulates that would be caused by such vortex effect, it would also lead to increases in concentrations of Nitrogen Oxides and Sulphur Dioxides which are assessed for exceedences on an hourly and 15 minutes, as well increases in other pollutants such as Chromium and dioxins. Moreover, if the levels of pollutants are close to, or already exceeding acceptable levels, the existence of an EfW adding to the position at all, but also with the vortex effect, would simply be unacceptable in principle.

It was therefore very surprising to learn that the SWP site assessment has been carried out without any specific assessment of the suitability of Capel in terms of potential concentration levels of pollutants by reference to existing background levels. In circumstances where Capel is on the flightpath to Gatwick already, the failure even to find out background levels is inexcusable.

The reality is that there does not appear to have been any meaningful assessment of air quality or health issues at all. There is simply no evidence of any material assessment of any kind. The SWP merely assumes that a site will be potentially capable of housing an EfW incinerator in air quality terms / health terms, without any assessment of the specific of the site at all.

The inherent unsoundness of this approach if one considers the consequences of one pollutant as an example. CAG illustrated the position simply by reference to Chromium VI, a highly toxic metal for which the acceptable exposure level according to WHO guidelines is 2.5 nanograms per cubic metre on an annual basis. It was explained that planes are a likely source of Chromium deposits released from their engines. The only evidence that CAG is aware of to date is an assessment by the applicants for planning permission of Chromium background levels of 6micrograms per cubic metre. In the absence of any attempt by SCC to monitor the position, one can only infer the proportion which is Chromium VI which he took to be 30%. That in itself creates a position where Capel is already exposed to levels at or exceeding the acceptable level. Any increase in this level is self evidently unacceptable. The aggravated effects of a vortex intersecting with the plume can only aggravate the whole position.

The same observations can be made about health issues. The reality is that SCC has only looked at health issues generically, and asserts that incineration is an acceptable strategy generally. That has been strongly disputed in other parts of the examination, but it is an unsound approach to the site specific assessment. Both of CAG's experts on air quality and health have drawn attention to the site specific air quality and health issues for Clockhouse given the vortex effect, the flightpath to Gatwick, and the Clockhouse site's location in the countryside next door to a number of existing dairy farms. The only response to the health issues was through RH who merely asserted that it was not site specific. This is incomprehensible given the evidence about bioaccumulation of pollutants, and ingestion through the food chain which is a site specific risk to Clockhouse of particular importance.

The objectors therefore submit that the approach on all three of the above issues in the SWP in allocating Clockhouse is unsound. Not only is there no robust and credible evidence base to support the allocation on these issues, but there has been a manifest failure to consider these issues in the context of considering Clockhouse's unique and inherently unsuitable location which preclude its use for certain waste uses.

Capel Action Group

October 2007