Haringey Council’s duties as a planning authority
The duty of a Planning Authority is to assess its area, formulate plans and land-use policies, and to protect these policies and plans through planning control, once they have been consulted on and tested as “sound” at an Examination in Public by a Planning Inspector. All developers then have to apply to the Authority for planning permission, which the Authority will grant or refuse according to whether the proposal conforms to its policies and plans. The Planning Authority for the Pinkham Way site is Haringey Council which, in our view, is wholly failing in its duties regarding that site. Specifically, as we shall demonstrate below, Haringey Council has been unduly influenced by the North London Waste Authority (a planning applicant) which wants to use the site for waste processing.
The Sale that was to be kept secret
Barnet Council, which owned the Pinkham Way site, sold about three quarters of it to the North London Waste Authority (NLWA). In a contract of sale, dated 17 December 2009, the NLWA contracted with Barnet Council, significantly, that they would keep the existence of the contract secret for as long as possible, while they jointly prepared an outline planning application, which they submitted to Haringey Council in May 2011.
The significance of the secrecy clause is that it expressly demonstrates the authorities’ early intent to manage public opinion rather than to inform, let alone consult. They applied for permission to build a huge waste processing plant on the NLWA’s part of the site, with the depot for Barnet Council’s refuse trucks to be relocated from Mill Hill on to Barnet Council’s retained part of the site.
These steps were part of Barnet Council’s game-plan to sell part of the site for more than £12 million, dump their refuse fleet over the borough boundary into Haringey, and redevelop and/or sell their Mill Hill site for housing. Without the NLWA as a joint applicant, there would be no prospect of Barnet Council to obtain planning permission for their refuse truck depot on the site. NLWA gained by securing Barnet Council’s agreement to sell it part of the site. But any possible benefit for Haringey is beyond imagination.
Haringey Council’s planning complacency
Meanwhile, Haringey Council smoothed the way for the destruction of the Pinkham Way open space by designating it as Locally Significant Industrial Site (LSIS) in their Strategic Plan. That designation would have aligned the site with the London Plan’s policy that significant waste sites should be located on LSISs.
The pressure put on Haringey Council to do this is evident in a note Haringey’s Planning Department wrote explaining their LSIS proposed redesignation. “Complies with pre-application discussions which have already taken place to use part of site for recycling centre and other part as waste station”, it spelled out.
This is a breathtaking admission that Haringey Council’s strategic land use plan can be shaped by favoured planning applicants, at least if they are the NLWA and Barnet Council. However, when confronted by representations made by Pinkham Way Alliance and other objectors, Haringey Council failed to persuade the Planning Inspector at the plan’s Examination in Public, that any evidence existed to support designating the site as LSIS.
A local resident also presented cogent planning reasons why Haringey Council is wrong to deem the site “brownfield”, since the remains of the sewage works that closed in 1963 have merged back into nature. That fact means that planning policy no longer treats such a site as “previously developed land”. For 50 years, the site has been a 6.3 hectare open space, and has been used as such by local inhabitants.
The site, which includes 3.6 hectares of semi-mature woodland, is an open space benefiting from splendid views over the surrounding suburbs. In any sequential test of sites to be preferred, other, genuinely brownfield sites, fall to be developed first.
Proposal to destroy a valuable, irreplaceable verdant open space
Local residents, including the Pinkham Way Alliance, strongly objected to the planning application being processed by Haringey Council before the Haringey Strategic Plan and the NLWP were subjected to public scrutiny.
Prior to local government reorganisation, the previous planning authority, Middlesex County Council, had designated the site as open space, and it is officially designated in Haringey’s UDP 2006 as a Grade 1 Site of Importance for Nature Conservation (SINC) of Borough-wide importance.
Haringey Council’s dual designation of the site as “employment” is as suspect as their LSIS designation that failed. Such a dual designation conflicts with protecting the SINC, and is anomalous. No other Grade 1 SINC in Haringey is put at risk of damage in this way.
The site has not had any employment on it since the decommissioning of the Friern Barnet sewage treatment plant fifty years ago. All traces of the plant were removed, or have been covered over by natural growth. For more than forty years, local inhabitants have used the site for informal recreation such as dog walking, wildlife spotting, bonfire nights, and children’s play; and teachers have taken their pupils on to the site to observe the wildlife.
Today the site is a valuable open space comprising semi mature woodland and open scrubland amidst surrounding communities in Haringey, Enfield and Barnet boroughs who lack open space, as the planning files of all three boroughs record. It was recently fenced in by the NLWA, without the necessary planning permission.
Detriment to Haringey residential areas − and Barnet Council’s “nimbyism”
In addition to the destruction of this irreplaceable amenity, the proposed huge waste plant would have a significant, detrimental impact on the surrounding residential area, including odour nuisance, noise from the heavy vehicles, visual intrusion and deterioration in air quality.
It would worsen the notorious traffic congestion on the already gridlocked sections of the nearby North Circular Road, Colney Hatch Lane where it bridges the NCR, and in Friern Barnet Road where desperate drivers flee to escape the gridlock, creating a new one.
It is also unreasonable, greedy and selfish for Barnet Council, with a greater land area than any other North London borough, to try to foist its refuse truck depot on to the neighbouring borough of Haringey.
Waste Plan untested − yet Haringey Council accepted planning application
North London’s waste disposal is carried out by seven North London councils acting together as the North London Waste Authority (Haringey, Camden, Islington, Hackney, Barnet, Waltham Forest and Enfield). Consequently, land use planning for waste across the whole of North London, which is strategic, is also carried out jointly, by a committee of seven councillors (one from each authority) supported by planning officers seconded from the councils, and various consultants.
In July 2011 the North London Waste Plan, the purported rationale for bringing 300,000 tonnes per annum of residual waste from far and wide to the Pinkham Way site, had not yet been tested by its Examination in Public. Yet here was Haringey Council entertaining a planning application for just that.
Demonstration forced suspension of the planning application
A well-supported protest demonstration outside the Haringey Council meeting of 18 July 2011, which the Council knew was being organised, caused the Council to prepare and pass a resolution that day, the operative part of which is
“This Council notes … that as a result of negotiations led by Haringey Council, the North London Waste Authority have recognised the Council’s concerns and agreed that an application, with more details to be submitted, should not be determined by Haringey Council until after receipt of the independent planning inspector’s report into the North London Waste Plan in 2012.”
Haringey Council subsequently referred to this resolution as putting the planning application “on hold” until the North London Waste Plan had been tested by its Examination in Public, and the Leader of Haringey Council, Councillor Claire Kober, reiterated that the test of the strategic need for the site in the NLWP was a pre-requisite to any legitimate application to Haringey Council as the local planning authority. Writing to a local resident, two days later, she stated:
“Only after the Inspector has reported his/her findings … will the application for Pinkham Way be processed …since by this time its appropriateness as a waste site would have been fully tested at an Examination in Public … with all parties putting forward evidence in front of an independent inspector.” (emphasis added)
Waste Plan needed impartial public examination first
It was clear to Haringey Council, then, that it would be an abuse of the planning system for Haringey’s Planning Committee alone to consider the site-specific planning application for Pinkham Way before the soundness of the seven councils’ overall waste plan, which included their site selection process that drove that application, had been tested. As Cllr Kober wrote the following February 2012
“I would need to reserve judgement on the appropriateness of the Pinkham Way site, until the outcome of the Examination in Public and the independent Planning Inspector’s Report on the NLWP. This will take a wide range of factors into account when testing the site’s suitability … It is understandably important to be aware of all these issues, to give full consideration to such a significant matter given the need to deal with waste through a new facility.” (emphasis added)
This letter correctly confirmed, again, that the relevant considerations of the strategic NLWP that propelled the choice of Pinkham Way for waste would be completely bypassed, wrongly, if a site specific planning application were made straight to Haringey Council.
North London Waste Plan hearing halted
The Examination in Public (EiP) of the North London Waste Plan (NLWP) by the Planning Inspector Mr. Andrew Mead opened on 12 June 2012 to examine the soundness of the plan. The first morning was for the North London councils to demonstrate that their plan was legally sound.
However, the waste planning authorities of the East and South-East of England complained that the North London councils had failed to comply with their legal duty to co-operate with them in making the plan, a duty which arises because North London exports significant quantities of waste to them for landfill, and argued that the plan therefore was not legally sound.
Argument put by a barrister representing the North London Waste Plan team, and an even lengthier one from a QC representing the North London Waste Authority, failed to convince the Inspector that the Plan was legally sound, and he halted the proceedings. The EiP had lasted just under two hours as against the six days that were scheduled.
The Planning Inspector’s preliminary decision on the North London Waste Plan
The Inspector ruled, on 31 August 2012, that: “the plan is not legally compliant and so I cannot continue any further with the Examination”. As to his final decision on the EiP, he gave the North London Councils a choice, either
“to receive my report on the Plan which will not deal with any planning issues and … will recommend non adoption of the Plan … Alternatively, the Councils may choose to withdraw the Plan from submission and so return to the stage of preparation. … Were the Councils to follow the latter route they may seek to remedy any defects which have been identified.”
The Inspector then explained what steps might be taken to remedy the failure to cooperate, but continued:
“This process, in turn, may lead to alterations to the Plan and the need to revisit the Sustainability Appraisal …”
From this, it is clear that the Inspector envisaged significant revisions to the Plan to be made whichever of the two options the Councils chose. If the Plan were not adopted, it would have to be remade. If it were withdrawn, the Plan would have to be altered to reflect the quite unpredictable outcome of cooperation with the South and South-East councils. That would also have the knock-on effect of requiring another Sustainability Appraisal, in part or whole − itself a substantial undertaking.
A Sustainability Appraisal is designed to test the suitability of a plan against a raft of environmental criteria; and it should thus form a significant underpinning of a plan’s soundness. The Sustainability Appraisal which had been produced for the submitted NLWP was beset with warnings or caveats about the unreliability of the evidence on which the Plan was based. Just a few examples are:
Para 4.60 p 48 “The data reported here has relied to a large extent on subjective opinions … there are areas of the appraisal where the evidence base has a high degree of uncertainty.”
Para 4.61 p 49 “There are significant uncertainties in the existing baseline for waste management in the North London area”
Para 5.16 p 70 “There are substantial inconsistencies in the waste data available for the North London area. The data that are available vary in their origin, reliability, and recentness.”
Councillor Loakes presses on regardless and Haringey Council follows
The NLWP EiP Programme Officer informs us that the seven councils will not make their choice until the end of November 2012, yet the day after the hearing was halted, Councillor Clyde Loakes, Chairman of the North London Waste Authority, determined to press on regardless without waiting for a new or amended North London Waste Plan to pass the test of independent scrutiny in public.
In a statement evincing his intention to bypass the NLWP EiP and rely on “compliant” Haringey Council to wave through the inappropriate development, Loakes said:
"The simple fact is that we have to find additional sites for new, modern waste management facilities within the north London boundaries − and Pinkham Way is the most suitable site in our area. We understand that local people will have concerns about the impact of the facilities proposed for Pinkham Way, and I can assure residents that all these issues and concerns will be addressed as part of the design of the facilities and in the planning process." (Waltham Forest Guardian, 13 June 2012)
Haringey Council did not disappoint Loakes. By October 2012, Haringey Council’s Leader had abandoned her earlier desire for independent scrutiny. Claire Kober acknowledged that:
“ … the [North London Waste] Plan has not met the new ‘Duty to Cooperate’ … As a result of this, the Inspector has not yet looked at or tested any information in the Plan.”
However, she contended that
“Even when there is no adopted Waste Plan in place, one is usually in the process of being produced (eg the NLWP) and the further it has progressed through the consultation and adoption process the more it is to be taken into account when judging any planning applications that might come forward for actual schemes. In the meantime, while we don’t have a finally approved NLWP, Central Government sets out in National Policy PPS 10 (planning policy statement) how applications for waste management should be dealt with if no Waste Plan exists or is in the process of being made. If and when a planning application comes in it will be judged on its merits and the appropriate weight given to the latest Waste Plan or its emerging draft.” (emphasis added)
Preparing an abuse of the planning system?
Kober’s statement omits any reference to the London Plan and to the National Planning Policy Framework (NPPF), both of which are also relevant and must be taken into account, not to mention Haringey Council’s own policies on biodiversity and open space. Both the London Plan and the NPPF have policies applicable to all planning applications.
The London Plan strongly supports the protection of open spaces and biodiversity and directs waste development to industrial sites, as does PPS10. Indeed PPS10 recommends using brownfield land first where possible − a sequential approach. Pinkham Way is not brownfield land, it is open green space.
The new National Planning Policy Framework prohibits building on existing open spaces unless an assessment has been done which clearly shows the open space to be surplus to requirements. Haringey has an overall deficiency of open space, so the Council cannot validly accept that the open space at Pinkham Way is surplus to its requirements.
With regard to the NLWP, no reliance can be placed on a Plan that is going to be remade or amended following constructive, active engagement between the North London Councils and the other councils, with an outcome which is, therefore, entirely unknown.
Cllr Kober’s inference (following similar remarks by Cllr Loakes), that Haringey Council Planning Committee will be able to rely on all the information that “the Inspector has not yet looked at or tested”, in a Plan which is all but sewn up, but just not “finally” approved, is completely wrong, not to say a sly attempt to profit by the failure of the Plan to date. She might give some thought to the fact that there is also a substantial amount of evidence undermining the Plan, that now also will have to be taken into account if assessing whether any reliance can be placed upon the NLWP.
A plan that is not adopted, or has to be withdrawn from its EiP, does not retain the authority of one nearing examination stage and not yet challenged. Not only does correcting the unlawfulness require alterations to the Plan, but the scathingly critical, wide-ranging submissions of representors to the Examination in Public, including from waste experts, are now in the public domain, removing any probability that any particular part of the Plan will survive public scrutiny.
Pinkham Way Alliance therefore concludes that:
1) Haringey Council should turn down as premature any attempt by NLWA and Barnet Council to obtain planning permission for waste treatment on the Pinkham Way site before the North London Waste Plan is adopted, or at least has been tested through an Examination in Public. Any such attempt would be an abuse of the planning system, seeking to evade the public scrutiny of the independent Planning Inspector for a controversial plan that has already failed.
2) Haringey Council should immediately withdraw the Pinkham Way site from the NLWP and carry out its own rigorous, proper and transparent assessment of the site. Only then will the community have confidence that the Pinkham Way site has been subjected to a fair and reasonable assessment of its true value.