Planning Inspectorate Newsletter - Issue 2
PPC Permitting Appeals: Burghfield and Colnbrook
Permit conditions for these 2 landfill sites (Appeal References: APP/PPC/04/09 & APP/PPC/04/12) were the subject of an appeal decision issued from the Planning Inspectorate at the end of January 2006.
Both Burghfield (Reading) and Colnbrook (near Slough) are longstanding landfill sites and in neither case was the principle of continued use of the sites for landfill at issue - what was at issue was the approach taken by the Environment Agency to conditioning of the Waste Permits introduced by the Landfill (England and Wales) Regulations 2002 and the Pollution Prevention and Control (England and Wales) Regulations 2000.
Biffa Waste Services were seeking to contest many aspects of the Environment Agency’s approach to permitting of landfill sites under the new system of Waste Permitting.
Legal matters under examination
- The interface between the Pollution Prevention and Control regime and the landfill regime; [In particular a dispute about the issue of BAT – Best Available Technology - and its relevance to landfill installations]
- he correct interpretation of the requirements set out in Annex I of the Landfill Directive (a substantial proportion of Annex 1 is concerned with site engineering works at the base of the landfill); and
- general principles to be applied to permitting.
The interface between the Pollution Prevention and Control regime and the landfill regime is the major legal issue between the parties in these appeals. It determines the correct approach that should be taken by the Agency to the regulation of landfills under the new legislative regimes. It is therefore of the utmost importance, not only to the Colnbrook and Burghfield landfills, but also to the Agency’s regulation of landfills generally in England and Wales. The determination of this legal issue will have an impact at national level and also, because its determination involves the interpretation of European Directives, at EC level and potentially in other Member States.” (Agency’s Outline Legal Submissions, 7 July 2005 from Kassie Smith, Counsel for the Environment Agency).
Another significant factor that has affected this appeal is that the period between the issuing of the Permit and the hearing of the appeal has seen developments in the overall approach that the Environment Agency has sought to apply in drawing up permit conditions. The background to this is set by such Government sponsored reports as Regulation - Less is More from the Better Regulation Task Force, March 2005. The Agency’s current intentions in relation to permitting are set out in Delivering for the Environment – a 21st Century Approach to Regulation (CD3.3). This approach is focused on outcomes and is risk based.
In relation to the interface between the Pollution Prevention and Control regime and the landfill regime and the applicability of BAT, I examined a phrase within Recital 18 of the Landfill Directive. This refers to the “particular features of the landfill method of waste disposal” but provides no further amplification as to what these are.
Having examined witnesses on what they thought these “particular features” should be regarded as being, I went on to say that the following were what, in the present context, I regarded as being “particular features” of the landfill method of waste disposal:
1: as a method of waste management, it is at the bottom of the waste hierarchy.
2: it is a relatively simple practice with long term potential consequences
3: there is a long history of unexpected/undesirable side effects from landfill – eg migration of landfill gas and pollution of ground and surface waters
4: sites for landfill generally come forward as a by-product of mineral extraction – such sites are not chosen for their own inherent qualities and the expectation is that the void will have to be made “fit for purpose” by engineering at the base
5: engineering at the base is a once and for all opportunity where action that is taken is very unlikely to be reversed and cannot be readily rectified once deposition commences.
Structure of the decision
1. The first part is concerned with a range of legal considerations that were the subject of the parties’ representations on the first three days of the Hearing. I was presented with written submissions on the legal considerations at the beginning of the second week of the inquiry and attached them in full as Annexes to the decision.
2. The second addressed generic conditions that were in dispute. These generic conditions are common features of the two permits that have been appealed and are part of the approach that has been adopted by the Environment Agency in seeking to apply a template of conditions to all permits for landfill of waste.
3. The third part addressed conditions that arise only in the context of the Colnbrook appeal. The appellant is seeking revision of conditions that would affect cell engineering and the management of leachate. Legal considerations are involved (in particular in relation to application of technical requirements included in Annex 1 of the Directive). In addition there is examination of the suitability and acceptability of this design taking account of the particular geological and hydrogeological context of the Colnbrook site.
Geology
The site is located within the London Clay, which is underlain by the Reading Beds and ultimately at depth, the Chalk. Originally overlying the London Clay, but now removed from the site through mineral extraction, were River Terrace Gravel deposits. These deposits remain in situ at the site boundary.
Hydrogeology:
Groundwater is contained both within the adjacent Terrace Gravel Deposits (classified as a major aquifer) and within water bearing horizons (sandy/silty strata) in the Reading Beds (nominally classified as a 'non aquifer' but where water bearing could be classified as a ‘minor aquifer’).
To date, no groundwater has been identified within the London Clay at the site, this formation being classified as a ‘non-aquifer’ by the Environment Agency.
The hydrological setting of the area is focussed on the presence of the Horton Brook which bounds the eastern boundary of the site and crosses the south-east corner of the site. The Horton Brook discharges into an area of flooded mineral workings near Wraysbury, which ultimately discharges into the River Thames.
Extracted from the Colnbrook factsheet on the Biffa website
The fourth part of my decision addressed matters arising in the context of site specific considerations at Burghfield
Simon Gibbs BA MSocSc MA MRTPI
Planning Inspector
