The Senior Planner,
Planning Policy Unit,
Cork County Council,
27th January, 2014.
RE: Cork County Development Plan 2014, Section 31 Draft Direction
The Minister for Housing, Planning and Co-Ordination of Construction 2020 has issued notice of his intent to instruct Cork County Council to amend Objective ZU 3-7 of the County Development Plan 2014. He has outlined the text of the Objective which is to be deleted and dictated the alternative text which is to be inserted in its stead.
I am dismayed by the Minister’s proposed action. The content of his communication of 22nd December 2014 to Cork County Council is indicative to me of an undermining of the local Development Plan process, a deliberate attempt to impede local democracy and a failure to understand both European and national waste policy.
Section 31 Draft Direction is in contravention of:
- Article 11(2) and Article 12 of the Planning and Development Act, 2000
- Article 7 of the Aarhus Convention
Chapter I of the Planning and Development Act 2000 sets out the requirement of every local authority to make a Development Plan. The legislative requirements were further clarified by guidelines published by the then Department of the Environment, Heritage & Local Government under Section 28 of the Act.
These guidelines emphasise how the Development Plan is intended to provide the strategic framework and policy context for the sustainable development of land in the interests of the common good.
Public consultation and local involvement is a critical element in deciding how this strategic framework can reflect those interests. Article 7 of the Aarhus Convention provides for public participation in plan and policy making. Ireland is a signatory to the Aarhus Convention since 2012. The requirement of the Aarhus Convention in this regard is reflected in Article 11(2) of the Planning and Development Act 2000.
This statutory requirement has been responded to fully in the making of the Cork County Development Plan 2014. In its draft form, the Plan went through three rounds of public consultation over a period of two years. All views of interested parties were analysed, evaluated, balanced and, where possible, taken on board.
The Section 28 guidelines are utterly clear in clarifying the role of elected members in the making of a County Development Plan:
“Members must have an active and driving role in the entire process, from its inception to its finalisation. They must listen to and take account of the views and wishes of the communities they represent.”
They further emphasise that this involvement of the public and the elected members is critical for the Plan’s effective implementation. The UN’s Implementation Guide on the Aarhus Convention similarly acknowledges that public involvement in the making of any plan is key to that plan’s success:
“All good public authorities take advantage of the interest and the energy of the public. As decisions become increasingly complex, this factor becomes less a matter of good practice and more a matter of urgency.”
Any decision relating to the siting of a large waste management facility is a complex one. Cork County Council has, in consultation with the public and elected members and as expressed in its County Development Plan, given guidance on where such large waste management facilities should and should not be sited. The Minister’s Draft Direction proposes to dismiss the two years of public involvement which has culminated in that guidance. Therefore the Draft Direction is entirely in contravention of both Article 7 of the Aarhus Convention and Articles 11 and 12 of the Planning and Development Act 2000.
Section 31 Draft Direction is unnecessary: County Development Plan 2014 is not in contravention of national waste policy
The Minister claims that the Draft Direction is necessary because Objective ZU 3-7 of the County Development Plan 2014 by prohibiting incineration through energy recovery is in contravention of national waste policy. I believe the Minister to be entirely incorrect.
The purpose of Objective ZU 3-7 is not to restrict any kind of waste management type but to advise on where it should be sited. Objective ZU 3-7 (b) advises that industrial areas zoned for small to medium sized industry, warehousing or distribution can generally be considered for the siting of waste management facilities. But it qualifies that these areas are not considered suitable for either contract incineration or landfill. On the other hand, Objective ZU 3-7 (c) clarifies that all large scale waste management facilities may be considered for siting in Strategic Employment Areas. Note that there are five such areas in Cork.
That this is not any attempt to slight incineration whether with or without energy recovery is clear from many other references within the County Development Plan. Firstly, Objective ZU 3-7 (c) is consistent with Paragraph 6.4.11 which states that:
“the provision of strategic large scale waste treatment facilities will be considered in ‘Industrial Areas’ designated as Strategic Employment Areas in the local area plans …”
and with Paragraph 11.7.4 which again repeats:
“It should be noted that the provision of strategic large scale waste treatment facilities will be considered in ‘Industrial Areas’ designated as Strategic Employment Areas.”
Secondly, Paragraph 6.4.12 identifies the Bottlehill Landfill Facility as offering particular potential for a “specialised role in the area of integrated waste management and waste to energy”. In other words, waste to energy is identified and welcomed to a site that may be considered suitable.
Thirdly, Objective ED 4-3 provides explicit support for the development of bioenergy within County Cork during the lifetime of the Plan. The term bioenergy embraces waste to energy within the R1 category.
National waste policy is as outlined in the government’s 2012 policy document, A Resource Opportunity. Quite contrary to the Minister’s claim, the County Development Plan 2014 in fact provides clear support for this policy. Paragraph 11.7.1 specifically identifies the policy, clarifies its intent and observing that the policy will be delivered through “mandatory regional waste management plans”.
Then Objective WS 7-1 has as an explicit aim to:
“Support the policy measures and actions outlined in ‘A Resource Opportunity’ 2012 – National Waste Policy”.
It is difficult to see how such stated support could be regarded as a contravention.
The draft Regional Waste Management Plan for the Southern Region also recognises that the siting of waste facilities is critical to ensuring that their impact can be minimised, managed and mitigated. It includes broad siting criteria but advises that they provide only minimum guidance. This is a clear suggestion that greater guidance may be provided at local level if it is regarded as appropriate.
The Section 28 Development Plan Guidelines advise that while development plans should take relevant national and regional policies on board, this should also work in reverse: good development plans should inform policies at regional and national level. In my opinion, that qualifies the Cork County Development Plan 2014 as being a good development plan. It has taken national and regional waste policy on board, acknowledged its support for both and identified broad county-level policies for guidance on siting waste management facilities. Even whilst identifying these county-level policies on siting, Objective ZU 3-7 (c) defers to the requirements of national policy and future Regional Waste Management Plans.
Frankly, for the Minister to claim that ZU 3-7 as drafted runs counter to government policy is quite extraordinary in the context of the above. His suggestion that it prohibits energy recovery through incineration is totally misplaced and indicates that he has not read the many other constructive references to waste to energy within the Plan. Furthermore, it intimates that the Minister is not clear in his understanding of the function of a development plan, i.e. the adoption of national and regional policy into county policy and its adaptation into a strategic framework for sustainable land use within the county as desired and agreed by the people of the county.
Section 31 Draft Direction is itself in contravention of national waste policy
National waste policy as outlined in A Resource Opportunity is clear: recovery is fourth in priority in the waste hierarchy. A Resource Opportunity helpfully defines recovery as being:
“any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function …”.
The key phrase here is any operation.
There are many, many technologies capable of being considered as “large scale waste treatment facilities”. Centralised biogas is a direct aim of the draft Regional Waste Management Plan for the Southern Region. In-vessel composting is used successfully all over the world. Both are classified within the recycling category in the waste hierarchy and are therefore regarded more favourably than recovery. What about pyrolysis which produces oil, gas and carbon?
ZU 3-7 (c) as currently drafted indicates that all large-scale waste management facilities, regardless of type, may be considered within Strategic Employment Areas. It therefore accurately reflects the gamut of waste treatment types referred to in A Resource Opportunity, whether from the recovery category or any category further up the waste hierarchy.
It is extraordinary that the Minister, whilst advising against “determination in favour of or against any particular process or technology”, proposes to instruct that ZU 3-7 (c) must be amended to specifically mention waste to energy recovery facilities. This directly contravenes his own instruction in relation to “infrastructural diversification” deploying a “variety of technologies” across a “network of facilities”.
Furthermore, whilst he chides Cork County Council for what he perceives to be its failure to comply with the waste hierarchy by restricting incineration, he then proposes to instruct that ZU 3-7 should be amended such that it would favourably single out incineration with energy recovery over so many other technologies further up the waste hierarchy.
Whilst I can see no evidence whatsoever that the County Development Plan 2014 is in contravention of the waste hierarchy as adopted by national waste policy, I can see clearly that the Minister’s Draft Direction is anti-competitive and unsustainable in its content and not reflective of either EU or national waste policy.
Public consultation procedure associated with the Section 31 Draft Direction is in contravention of Aarhus Convention
Why did the Minister invite public comment on this Draft Direction?
Was it simply to comply with the requirements of Section 31 (6)?
The measures proposed under the Draft Direction as outlined by the Minister in his communication of 22nd December 2014 clearly state that the County Development Plan is to be amended as set out in the Draft Direction. If the Minister is intent on amending the Cork County Development Plan 2014, what possibly can be the purpose of this public consultation other than to give lip service to a legislative requirement?
The UN’s Implementation Guide on the Aarhus Convention advises that, at a minimum, public participation requires effective notice, adequate information, proper procedures and appropriate taking account of the outcome of public participation. The public consultation on this Draft Direction fails in all these respects. It allows a woefully inadequate response time of two weeks. It has been published in language which is well beyond the understanding of the public generally. One frustrated comment on a local publication’s Facebook page read: “Can anyone explain this in further detail and in plain English”. And at the outset, before the public consultation is even open, the Minister has made it quite clear that the opinion of the public is irrelevant anyway; the provisions of the Draft Direction will come into effect when the Section 31 procedure has been completed.
This is not public participation. Again, UN guidance on the Aarhus Convention explains that public participation requires more than simply following a set of procedures. It involves “public authorities genuinely listening to the public and being open to the possibility of being influenced by it … the public input should be capable of having a tangible influence on the actual content of the decision”.
This Section 31 procedure is in clear contravention of the requirements of Aarhus and derogatory of the opinions of the public.
I respectfully request that the Chief Executive would reflect my abject rejection of the Minister’s proposed Draft Direction to the Cork County Development Plan 2014 and my genuine horror at his failure to understand the purpose of the specific objectives of the County Development Plan, his evidenced failure to read the County Development Plan in entirety, his consequent proposal to force the introduction of text which would introduce inconsistencies in the Plan, his instruction to favour a recovery technology over a technology further up the waste hierarchy, his consequent proposed direction to contravene national waste policy, his utter disregard for public consultation as required by the Aarhus Convention, his clear demonstration of lack of faith in both the executive and elected members of Cork County Council and his consequent attempted undermining of the development plan process through which the executive, elected members and public have collaborated and co-operated over the past two years.
Local government, local strategic planning and waste management in Ireland deserve better than this.