Benefits

Benefit Secured by Alternate Means?

If required as a consequence of soft market testing, will help engender bidder   confidence with regards to planning deliverability but only in relation to the reference project in the OBC. Soft market testing should clarify whether the market is specifically seeking a consented site or simply planning comfort in relation to the WDA's offered site.

Planning reports concerning suitability of sites may be prepared to stimulate bidder confidence as per Option 2.

Submission will fully engage both functions of the authority/authorities i.e., waste disposal and planning.  An application may demonstrate the extent to which consultation has satisfied any planning or other objections to the development and provide the opportunity for resolving any remaining issues.

As this guidance sets out, whilst any planning proposal by the WDA should be treated the same way as any other application, there should still be close liaison between the WDA and the planning authority as there would be in the preparation of any major proposal, and the consultation and the pre-application procedures should provide the opportunity for resolving issues.

Disadvantages

Mitigants

Implies 2 applications for every proposed site development. If so, there will be increased cost and possibly increased time implications of having to prepare and submit two planning applications on potentially a number of sites. Whether or not a right of appeal exists in such cases WDAs will have to carefully consider any situation or scenario which might lead to any appeal in the instance where the WDA is also the planning authority.

Possible increased cost of two applications may be outweighed by the benefit of increased project deliverability and possible reduction in bidder cost contingency.

If applications are submitted by the local authority (in its capacity as WDA), there is no right of appeal against refusal of an application. See the Town and Country Planning General Regulations 1992, Regulation 5 - note in general the right of appeal does not apply where the application is made by the WDA to itself, or where the development is by the WDA (either by itself or jointly with another person) on any land in its area.

Whether or not a right of appeal exists in such cases WDAs will have to carefully consider any situation or scenario which might lead to any appeal in the instance where the WDA is also the planning authority.

The WDA may, of course, if an adverse planning recommendation is being made and there is accordingly a strong likelihood of an adverse determination, decide to withdraw the application prior to its formal determination. This, however, would have an impact on overall timing of the procurement and possibly undermine deliverability of the previously identified reference project.

Possible impact on nature of solutions proposed through loss of innovation given that a full planning application is likely to be required.

This option is unlikely to be appropriate where the broad technology choice is not known at the outset of the procurement. Furthermore, the design that the WDA uses in its application should be of a scale and nature to accommodate the particular solutions proposed by bidders.

An effective communications strategy with bidders (bearing in mind potential bidder preconceptions where the WDA has pursued a planning application on the basis of a particular design and technology) to ensure throughout that they understand the reasoning under-pinning the strategy being employed on sites and that securing planning permissions is expected to assist bidder confidence. One facet of such strategy may be to emphasise to the bidders the importance of submitting variant bids in the process.

The WDA should also consider along with the planning authority whether an outline planning application be submitted which should provide it with greater flexibility as far as design of the facility is concerned. Outline planning permission is technically available for waste infrastructure buildings, although it should be noted that this may only give limited flexibility, as most large waste infrastructure projects will require an Environmental Statement to be submitted with the planning application (whether outline or full) which would limit flexibility outside environmental impacts that have been assessed.

Ambiguity in the final design of the project at this stage may stimulate a more hostile public response as part of the consultation process.

Through community engagement to secure community knowledge and buy-in.

The WDA is less well placed to develop and apply for a planning permission than a Contractor that will have previous experience and a financial incentive to deliver.

If there are clear benefits for adopting this route then, in principle, Authorities should be able to obtain the skills required to develop and progress planning applications at a level comparable to Contractors.

WDA planning applications presume certain choices regarding technology have already been made; it should be noted, however, even where the broad type of technology is chosen (such as MBT) there will still be variances - such as MBT producing solid fuel, compost or material to landfill all with different land takes.

Authorities should perhaps have a greater degree of confidence that its reference project will be the project that will in fact be delivered than a WDA which is not proposing to submit its own planning application.

Query whether the planning permission is transferable and validity of baseline data where there is a gap in the timing for carrying out the monitoring and submission of the planning application.

Planning permission normally attaches to the land and can be used by future owners of that land. This is the case where planning permission is granted for its own development by a planning authority in a unitary area. However, in non-unitary areas, where the WDA is also the planning authority, planning permission granted for development by the WDA ensures for the benefit only of the planning authority or for anyone else referred to in the application as a joint developer. As the position regarding applications made by authorities may be dependent on the particular circumstances of each case, where appropriate legal advice should be taken on this point.

The baseline environmental data etc. collected for the WDA's application could still be valid for the planning application that the Contractor will be required to pursue, although any significant time interval between the applications may necessitate new surveys to be conducted.

Cost to WDA and duplication of cost by the Preferred Bidder in making a subsequent planning application.

Incurring additional costs may provide better VfM by reducing risk of planning failure.

Opponents to the proposed development have two opportunities to frustrate process, and sequential applications may thus have an adverse    impact on the overall timetable.

Incurring additional costs and extra time may provide better VfM by reducing risk of planning failure; such VfM analysis should take into account costs to preferred bidder to carry out surveys etc so that it is in a position to take design risk.

Site for which the WDA has planning approval may not present the most economically advantageous tender once bids have been evaluated and the grant of permission may adversely affect the chances of obtaining permission elsewhere.

The WDA should consider whether its approach is compatible with permitting issues.

Benefits

Benefit Secured by Alternative Means

Application will be design specific.

By narrowing down choice of technology open to bidders and buying in expertise, a WDA might be able to pursue Option 1 and achieve the same level of specificity.

Application will be submitted by experienced people with clear financial incentive to succeed utilising contractors' skills and experience.

WDA could pursue option 1 by buying-in experience (waste management companies tend to rely on consultants).

Disadvantages

Mitigants

Potential for lack of engagement by Authority in planning process  - illustrated as a problem with some PFI procurements.

Have firm requirements at OBC approval stage and other tests at various stages in procurement.

Potentially onerous planning conditions are imposed at a stage in the procurement where competitive tension is diminished or lost.

Tests exist that planning conditions should meet (Circular 11/95). Policy expectation is that planning and pollution control regimes should be separate but complementary, and should not duplicate each other. Furthermore planning authorities should work on the assumption that pollution control permits will be implemented properly.

Full consultation may also flush out planning conditions prior to grant of permission.

Benefits

Benefit Secured by Alternate Means?

Application will be design specific and utilise contractors' skills and experience in obtaining planning permission for waste infrastructure.

see Option 2 above

Submission will fully engage both functions of the authority/authorities, i.e., waste disposal and planning. An application may demonstrate the extent to which consultation has satisfied any planning or other objections to the development and provide the opportunity for resolving any remaining issues.

see Option 1 above

Disadvantages

Mitigants

Contractors will argue the diminishment in control that will be necessitated by a joint application (for example, how issues are dealt with following submission of a planning application will need to be jointly agreed or a process will need to be set out to deal with deadlock situations) is inconsistent with them taking any risk in relation to cost or likelihood of success.

If planning deliverability is enhanced by this approach then that is of overall benefit to the project.

In general there is no right of appeal against refusal of a planning application where the application is made by the WDA jointly with another person on any land in its area.

The WDA may, of course, if an adverse planning recommendation is being made and there is accordingly a strong likelihood of an adverse determination, decide to withdraw the application prior to its formal determination. This, however, would have an impact on the procurement and possibly undermine deliverability.