ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Vosper QC
(sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE GROSS
| Celtic Energy Limited
|- and -
|The Welsh Ministers
Mr Clive Lewis QC (instructed by the Treasury Solicitor) for the Respondents
Hearing dates : 30th June and 1 July 2011
Crown Copyright ©
LORD JUSTICE PILL :
The Inspector's Report
"Proposals for opencast or deep-mine development or colliery spoil disposal will be expected to meet the following requirements otherwise they should not be approved:
• The proposal should be environmentally acceptable or can be made so by planning conditions or obligations, and there must be no lasting environmental damage;
• If this cannot be achieved, it should provide local or community benefits which clearly outweigh the dis-benefits of likely impacts to justify the grant of planning permission;"
Other requirements of little relevance to the present appeal follow.
"In defining these areas where coal working will not be acceptable, MPAs should take into account that coal working will generally not be acceptable within 500 metres of settlements, or within International and National Designations of environmental and cultural importance."
"MPPW sets out the concepts and policy on buffer zones in paragraph 40; a Buffer Zone is described as an area of protection around permitted and proposed mineral workings. They must be clearly defined and indicated in Unitary Development Plans (now LDPs). The MPA will show buffer zones on the Proposals Map, as 500m around permitted or proposed working, from the site boundary (or boundary for surface development for underground mining), unless there are exceptional circumstances as set out in paragraph 40 of MPPW or in paragraph 51, below."
Paragraph 51 is not relevant. Paragraph 40 of MPPW considered the concept of buffer zones and stated that they must be clearly defined and indicated in development plans.
"MPAs should set out in the LDP or in SPG criteria against which they will assess the impacts in considering an application, or review of Conditions."
"14.10 I will firstly consider the identification of areas where coal working would not be acceptable. One of the principles in PPW is that people and their quality of life should be at the centre of decision making. This underpins the approach of the Welsh Assembly Government to sustainable development. MPPW describes the need for unequivocal guidance in relation to the proximity of mineral operations to sensitive land uses. It also advises that further guidance on the factors that should be taken into account when defining buffer zones will be provided in TANs. MTAN2 has now been published and is material to the determination of these appeals. It advises that coal working will generally not be acceptable within 500m of settlements. Reference is also made to the possibility of additional areas of constraint.
14.11 The 200m buffer zone identified in the Neath Port Talbot UDP pre-dates MTAN2. It therefore does not provide an up to date reflection of national planning advice. The guidance in MTAN2, in the context of PPW and MPPW, therefore outweighs the UDP in this regard. I recognise that the Welsh Assembly Government did not object to the 200m buffer zone in its consultation on the draft UDP. This was an understandable position, given that MTAN2 was not formal advice at the time.
14.12 I note that the 500m separation distance from settlements within MTAN2 lies under the heading of 'The Local Development Plan'. However, it appears that, unless there are exceptional circumstances, the Welsh Assembly Government considers that 500m generally strikes the correct balance between protecting the amenity of people who live and work in the local community, on one side, and society's need for coal, on the other side. This balance needs to be struck, irrespective of whether an LDP is in force or not, and the identification of the area of coal working unacceptability within the LDP section is no reason to ignore the advice.
14.13 I will now consider the fact that the site is an extension to a previous operation. I acknowledge the benefits that this situation provides. The proposed extension however is not minor, and the benefits should be carefully weighed against impacts and cumulative impact in particular. Uncertainty and harm from a piecemeal approach can also be important considerations. In this case therefore, these benefits would not outweigh the harm identified below."
Submissions on MTAN2
"As for the proposition that, as a matter of law, plain words in an adopted Local Plan are to be overridden or set aside by wording in a planning policy guidance note, I have to say that I regard that as not only misconceived but quite astonishing. Unlike a PPG, a Local Plan will have gone through the necessary statutory processes, including public consultation and normally a public inquiry, and a report by an independent inspector, before being formally and ultimately adopted. It has statutory force, being explicitly referred to in the legislation. The Secretary of State will have had the opportunity to change it if he regards it as failing to conform with national policy (see sections 43, 44 and 45 of the 1990 Act)."
Findings on landscape
"From all the above, the proposal would have a major adverse impact on the extension site during extraction and restoration, although this would then reduce in significance. This impact would have a moderate adverse and unacceptable effect on the surrounding landscape character areas of Coedhirwaun, Pyle and Bridgend: Cribwr. The proposal would therefore conflict with Neath Port Talbot UDP Policy ENV1."
"The proposal would have a substantial adverse visual impact on sensitive receptors from many view points in most directions around the site."
He concluded, at paragraph 14.62:
"My conclusions on character and appearance cover both appeals A and B. Notwithstanding that I have not found any material harm in relation to the open character of the Green Wedge under appeal B, this would not outweigh the other harm that I have found. I therefore conclude that the proposal would have a harmful effect on the character and appearance of the appeal site and the surrounding area. I further conclude that the proposal would thus conflict with Bridgend UDP Policies M2 and EV7, Neath Port Talbot UDP Policies ENV1, ENV3, GC2 and M8, and the guidance within PPW, MPPW and MTAN2 in this regard."
The Inspector referred, at paragraph 14.64, to the reduced attractiveness of the area for recreational activities and the reduction of opportunities for a generation of young people from the surrounding area.
"The proposal would have a harmful effect on the character and appearance of the appeal site and the surrounding area. It would also have a harmful effect on the public enjoyment of the countryside. The cumulative effect of this harm when assessed in conjunction with earlier surface mining schemes adds weight to my opinions. The proposal would thus conflict with the Bridgend and Neath Port Talbot UDPs, PPW, MPPW and MTAN2 in this regard, sufficient for me to recommend dismissal of both appeals."
"Furthermore, the fact that, under appeal A, there would be no material harm from dust does not outweigh the harm that I have found in relation to character, appearance and the countryside, I have taken into account all the other matters raised. None however carry sufficient weight to alter my conclusions."
"I therefore consider that the proposal would have a harmful effect on the living conditions of residents in the settlement of Kenfig Hill, in relation to nuisance dust in respect of Appeal B. The proposal would not however have a similarly harmful effect on nearby residents in respect of Appeal A."
"I therefore have some concerns as to the validity of its higher dust concentrations as true background levels."
The basis for these concerns is set out in detail. It is common ground that the "concerns" were not put to the expert witness and there is evidence that, had he been given the opportunity, he had a good explanation, as set out in a witness statement. The explanation plainly merited consideration and it is unfortunate that the Inspector did not express his concerns to the witness to allow him to explain. Mr Price Lewis submitted that, in the result, the appellants did not have a fair crack of the whip on this issue.
"The proposal would also have a harmful effect on the living conditions of residents of Kenfig Hill in relation to nuisance dust. The proposal would thus conflict with the Neath Port Talbot UDP, PPW, MPPW and MTAN2 in this regard. The harm from dust however would only be present under appeal B, and it adds weight to my view on the unacceptability of the proposal under appeal B. The fact that there would be no material harm from dust related health issues or noise is not sufficient to outweigh the harm that I have found in respect of Appeal A."
"But I am also persuaded by Mr Clive Lewis's submission that the inspector's conclusion on dust was based on the evidence of residents, the concerns of the Councils and his own site visits. I do not accept that his doubts with respect to the validity of the Brynhyfryd data were the essential link in his line of reasoning . . ."
Balance between benefit and harm
"They are not however particular to this location or this proposal and therefore would not outweigh the harm that I have already found."
That must be read with the firm conclusions, already cited, in relation to the harmful effect of the proposal on the character and appearance of the appeal site, surrounding area and on public enjoyment of the countryside. The final balance does not have the prominence or position it deserved but is plainly, if briefly, stated.
LORD JUSTICE JACKSON :
LORD JUSTICE GROSS :