QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of ISABEL HADEN)
|- and -
- and –
|JPE HOLDING LTD
Nina Pindham (instructed by Legal and Democratic Services Department of Shropshire Council) for the Defendant
David Hardy (solicitor advocate) (instructed by JPE Holdings Ltd) for the Interested Party
Hearing dates: 17th and 18th December 2019
Crown Copyright ©
Stuart-Smith J :
"The phased extraction of sand and gravel, inclusive of mineral processing, all ancillary works, equipment and associated infrastructure and progressive restoration" ("the Development").
i) The Council breached reg. 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011;
ii) The Council failed to satisfy the legal requirements in relation to the statutory development plan;
iii) The Council erred in law in relation to the Green Belt; and
iv) The Council erred in law in relation to air quality / dust.
Ground 1: breach of the 2011 Regulations
The Legal Framework
The 2011 Regulations
"The relevant planning authority … shall not grant planning permission … pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration … ."
"the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development"
The "environmental statement" was defined by reg. 2(1) as meaning:
(a) that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part 2 of Schedule 4; ..."
3. A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
4. A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from—
(a) the existence of the development;
(b) the use of natural resources;
(c) the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the applicant or appellant of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment..."
2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
The data required to identify and assess the main effects which the development is likely to have on the environment..."
"it is for the relevant planning authority to judge the adequacy of the environmental information, subject of course to review by the courts on the normal Wednesbury principles, but information that is capable of meeting the requirements of Part II of Schedule 4 to the Regulations must be provided and considered by the planning authority before planning permission is granted."
"61. … The respondent concluded that those surveys should be carried out. They could only have concluded that those surveys should be carried out if they thought that bats or their resting places might, or were likely, to be found in the mine shafts. If their presence were found by the surveys and if it were found that they were likely to be adversely affected by the proposed development, it is, in my view, an inescapable conclusion, having regard to the system of strict protection for these European protected species, that such a finding would constitute a "significant adverse effect" and a "main effect" within the meaning of paragraphs 2 and 3 of Part II of Schedule 4 to the Regulations, with the result that the information required by those two paragraphs would have to be contained in the environmental statement and considered by the Planning Committee before deciding whether to grant planning permission.
62. Having decided that those surveys should be carried out, the Planning Committee simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys. The surveys may have revealed significant adverse effects on the bats or their resting places in which case measures to deal with those effects would have had to be included in the environmental statement. They could not be left to the reserved matters stage when the same requirements for publicity and consultation do not apply. Having decided that the surveys should be carried out, it was, in my view, incumbent on the respondent to await the results of the surveys before deciding whether to grant planning permission so as to ensure that they had the full environmental information before them before deciding whether or not planning permission should be granted."
"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case. The use of the word "opinion" in regulation 2(2) is, therefore, entirely apt. In my view, that is in itself a sufficient reason for concluding that the role of the court should be limited to one of review on Wednesbury grounds."
"38.. … It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie ). The effect on the environment must be "significant". Significance in this context is not a hard-edged concept: as I have said, the assessment of what is significant involves the exercise of judgment.
39.. I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."
Factual Background and determination of Ground 1
i) The environmental statement ("ES") dated 17 November 2017;
ii) Two reports prepared by Caulmert on behalf of the Interested Party, dated May 2018 and July 2018;
iii) A response to a Regulation 25 request for further information dated 31 May 2018;
iv) A report prepared by Stephen Buss on behalf of an objector, dated 6 September 2018 ("the Buss Report"); and
v) Consultation responses from the Environment Agency ("the EA") dated 15 December 2017, 13 August 2018 and 17 September 2018.
"Potential Impact upon shallow/perched water table.
Your EIA scoping letter identifies the need to consider possible drawdown effects in any shallow/ perched water tables, spring lines etc. The ES confirms that as the site will not be wet worked and only perched water is likely to be affected by the quarry activities the potential risk to groundwater abstractions is consider [sic] to be minimal (low risk).
While the report has confirmed consultation with your Council for the private water supply records, it is not clear to what extent local residents have been contacted with regard to possible unlicensed abstractions, to support the above conclusion.
Given the concerns raised by local residents during public consultation and following a review of the information submitted, we would recommend that a water features survey be completed to consider all such possible abstractions (and any water features) located within a 1km radius of the excavation. This will inform a more robust EIA. These should be identified and detail sought to establish whether the abstraction is situated within the shallower Secondary aquifer or deeper Principle aquifer. The data obtained should be used to revise the Conceptual Site Model and hydrogeological impact assessment where necessary. This will inform the final ES conclusion.
Particular concerns were raised by a local resident about spring-fed fish ponds and pools at Shipley Hall and Grange Farm to the south-west, therefore more detailed comments should be made by the applicant regarding the potential risk of derogation of these springs which are within the proposed working depth of the quarry.
Further information should be provided to confirm the risk and any avoidance/mitigation measures, including agreement for the protection of such supplies where relevant and necessary."
"In conclusion, from the available evidence presented above, it is considered that the proposed development (as amended) is unlikely to have a significant impact on the water features identified as part of this review. … Overall the associated environmental risks to groundwater flows and quality in relation to nearby water abstractions are considered to remain very low."
"2.9.7 Whilst no substantial interrelationship has been assessed and the Proposed Development is not predicted to have any significant adverse effects in relation to localised water features, as recommended, there is a commitment for a groundwater/water monitoring program to be undertaken throughout the life of operations. This can be secured via planning conditions/agreement."
And concluded that:
"3.1.2 The assessments have indicated that the perched water represents very localised pockets of groundwater with very limited correlation between the borehole logs. Therefore the development is unlikely to have an impact in the wider environmental context. The flows and falls to the springs within the Alder Coppice have been maintained within the design.
3.1.3 The base of the proposed development is above the regional groundwater levels and therefore not considered to impact on flows within this regionally important resource.
3.1.4 Whilst the proposals are not considered to lead to any significant impacts in relation to groundwater, to account for the local situation, a groundwater/water monitoring program will be undertaken to provide additional confidence in the protection of the groundwater environment. This can be secured via planning condition/agreement."
"Environment Agency Position
Following a review of the supplementary information, there remains considerable uncertainty as to the spring mechanisms giving rise to the water features identified in the area. The apparent mismatch between some of the observed flows and estimated catchments emphasise this. It is not therefore possible to be fully confident about the potential risks to the water features.
Given that the reported bulk regional groundwater level is recorded at a notable depth below ground level, this would suggest that the springs/ponds rely on the shallow superficial/shallow bedrock perched systems and therefore are potentially more vulnerable to changes in topography, unsaturated zone storage, infiltration travel times/lag times etc, as the quarry makes up the higher ground/recharge area.
It is plausible that changes in the surface water runoff from the site may effect (sic) recharge to the springs even if the groundwater mechanisms themselves are not affected. This is a complex hydrogeological setting and ideally further investigation/monitoring should be undertaken to refine the conceptual model, although even then it is likely that there would remain uncertainty in terms of spring mechanisms/catchments.
To assist the production of a more robust EIA, the applicant should fully identify and confirm the precise nature of the springs flow mechanisms. However, we appreciate that this may be difficult and some doubt might still remain. You might impose a condition/undertaking for monitoring of the identified features (quantity/quality) and a condition/legal agreement to secure mitigation including remediation of any adverse impacts should this be necessary. However we emphasise that as the risk is unclear it is not possible to state with confidence what (if any) necessary mitigation would entail and whether it would be feasible.
In terms of mitigation, the EIA should provide some certainty/commitment on mitigation to ensure no significant effect on the local water environment.
The EIA does not provide any mitigation options to cover 'if' impact is encountered upon private water supplies. It would be for your Public Protection / Private Water Supply protection team to ensure they are satisfied on this and as part of any possible future planning condition discharge, to assist your decision making.
The applicant has proposed installing a number of monitoring boreholes across the development site in order to monitor any impacts on the groundwater system. There should be a commitment to wider monitoring to assist with spring lines/private water supplies. All of the private water supplies (abstractions) identified appear to be outside of our regulation. If impact/derogation was demonstrated/ was to occur, it might be possible to provide a new supply for the affected source.
You might impose a planning condition to secure the details of the locations for boreholes (across the site/any necessity off site) and monitoring programme.
Based on the information provided and the scale of the proposed development, we consider the potential for adverse impact on the private supplies and the wider water environment is not fully known. Whilst some further detail could be provided some doubt may still remain."
"As confirmed in our previous response, of 13 August 2018, this is a complex hydrogeological setting and ideally further investigation/monitoring should be undertaken to refine the conceptual model, although even then some uncertainty may remain.
We believe that many of the comments made by Stephen Buss support our stance with regard to the spring mechanisms. There remains significant uncertainty about their origins, whether superficial perched, bedrock, 'perched', regional groundwater table supported, or some potentially fault related.
Based on the reasoning above (generally observation range of water levels in the area to the south/west of the site), we are not certain whether the springs issuing at 108mAOD could be considered to originate from the regional coherent groundwater system. However the potential for compartmentalisation and effects of faulting are unclear.
Whilst it may be possible to infer spring mechanisms from geological mapping, care is required because of the potential inaccuracy of mapping of the superficial deposits. Determination of the potential impact of the quarry upon the springs is not fully possible, because the spring mechanisms are not completely understood. It is therefore not possible to state with confidence whether mitigation measures are required or indeed would be feasible or appropriate.
It is arguable that the necessary site specific monitoring that has been put forward should be undertaken upfront in order to inform the EIA and such mitigation. The monitoring proposed by the applicant does provide the opportunity for greater certainty to be provided and a mechanism for avoidance of potential impact remediation of any derogated suppliers. We would reiterate that it would be for your Council's Public protection and/or Private Water Supply protection team to comment further on this element to ensure they are satisfied with this approach."
"Condition 25 details the requirements for further investigation of any potential material changes to local groundwater levels/features and identification of measures to mitigate the risks. Condition 26 limits extraction operations to 109m above ordnance datum unless the hydrological monitoring scheme has confirmed that the extraction below this level would not intercept the permanent groundwater table.
Whilst we do not disagree with the main content of these conditions, we would reemphasise our concerns regarding the remaining uncertainties in the hydrogeological conceptual model resulting from the absence of site specific monitoring, for your consideration and benefit of the Planning Committee.
The mechanisms that supply the local springs and associated watercourses have not been characterised and consequently the likelihood of potential impacts arising from the quarrying have not been fully assessed. To date no assessment of mitigation measures or their feasibility has been undertaken. Such measures should be considered as soon as possible, (ideally prior to granting of planning permission), as whilst it may be possible to provide mitigation for the loss of a well or borehole, providing a solution for an impact or loss of a spring or associated watercourse is potentially much more complex and may not be feasible. It is therefore essential that the local authority and the applicant are aware that in the instance of an impact occurring, cessation of quarrying may well be required to prevent or limit an impact. This could be included within the condition wording. It is also plausible that at the point any potential impacts are observed they may already be irreversible, particularly in relation to any spring/spring-fed watercourse feature. Mitigation has not been fully explored within the ES, but for impacts to private water supplies it could include provision of alternative supplies potentially including mains water connection at the applicant's cost.
It should also be acknowledged that depending upon the nature of the spring mechanisms/baseflow to watercourses, potential impacts arising from any operations may occur prior to 109mAOD extraction depth being reached.
It is for the above reasons that we have highlighted that it would be preferable to address the lack of site specific data and conceptual uncertainties, including baseline data, prior to grant of planning permission.
If the planning Committee is minded to grant planning permission, we would wish to be formally consulted on information submitted in relation to condition 24 and 25 thereafter to ensure a robust, enforceable scheme."
Ground 2 – Failure to satisfy legal requirements in relation to the statutory development plan
Ground 3 – Error of law in relation to the Green Belt
"37. The concept of "the openness of the Green Belt" is not defined in paragraph 90. Nor is it defined elsewhere in the NPPF. But I agree with Sales L.J.'s observations in Turner to the effect that the concept of "openness" as it is used in both paragraph 89 and paragraph 90 must take its meaning from the specific context in which it falls to be applied under the policies in those two paragraphs. Different factors are capable of being relevant to the concept when it is applied to the particular facts of a case. Visual impact, as well as spatial impact, is, as Sales L.J. said, "implicitly part" of it. In a particular case there may or may not be other harmful visual effects apart from harm in visual terms to the openness of the Green Belt. And the absence of other harmful visual effects does not equate to an absence of visual harm to the openness of the Green Belt.
38. … A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.
39. The first part of the question posed by the preamble in paragraph 90 – whether the development would "preserve" the openness of the Green Belt – cannot mean that a proposal can only be regarded as "not inappropriate in Green Belt" if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb "preserve" in the sense of "keep … safe from harm" – rather than "maintain (a state of things)" (Shorter Oxford English Dictionary, 4th edn.). There may be cases in which a proposed development in the Green Belt will have no harmful visual effects on the openness of the Green Belt. Indeed, there may be cases in which development will have no, or no additional, effect on the openness of the Green Belt, either visual or spatial. A good example might be development of the kind envisaged in the fourth category of development referred to in paragraph 90 of the NPPF – "the re-use of buildings provided that the buildings are of permanent and substantial construction". But development for "mineral extraction" in the Green Belt, the category of development with which we are concerned, will often have long-lasting visual effects on the openness of the Green Belt, which may be partly or wholly repaired in the restoration phase – or may not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the Green Belt is, classically, a matter of planning judgment".
i) It is alleged that the Officer approached the question of "preservation" incorrectly because he did so on a mistaken understanding that "specific localised impacts" could not result in a failure to preserve openness. It is alleged that he thereby assumed that only "widespread" impacts could be harmful within the meaning of the policy as explained by Lindblom LJ in Samuel Smith Old Brewery (Tadcaster);
ii) It is alleged that the Report does not include any discussion of whether the proposed screening measures themselves might have a harmful effect on the openness of the Green Belt.
The Officer's Report and determination of Ground 3
i) [6.31]-[6.33] address visual impacts, identifying evidence that they are not significant. It refers to the bunding and screening and concludes that the end result is typical of the local countryside in terms of character and proposed use; and that any residual effects on landscape and visual amenity would not "result in material impacts to the sense of openness of the Green Belt": see [6.33];
ii) The Report then considers the spatial dimension of openness at [6.34] and expresses the view that "the openness of the site over time will be preserved following the restoration works";
iii) [6.35] then gives separate consideration to the question of amenity. It refers again to the proposed mitigation works and reaches the overall conclusion that the function and sense of openness of the Green Belt would be preserved over time, so that the quarrying proposals are not inappropriate development, having express regard to paragraph 146 of NPPF.
"Ground 3 is not arguable. The Council's decision was based on the planning judgment of an officer with 30 years' experience and previous knowledge of matters such as landscaping bunds and tree screening for mineral excavations. It was entitled to conclude that the impact of the proposal on the openness of the Green Belt would not be harmful when not widespread."
Ground 4 – Error of law in relation to air quality
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
"(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213;  EWCA Civ 1293 at , equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at [26 – 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a 'rearguard action', following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at [23 – 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have 'due regard' to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be 'exercised in substance, with rigour, and with an open mind'. It is not a question of 'ticking boxes'; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) '[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.' (per Davis J (as he then was) in R (Meany) v Harlow DC EWHC 559 (Admin) at , approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at [74–75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be 'rigorous in both enquiring and reporting to them': R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at  per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77–78]
' Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.'
(ii) At paragraphs [89–90]
' It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree….'"
i) It is alleged that the Council's reliance on national air quality levels was unlawful;
ii) It is alleged that the Council erred in failing to impose a condition on the Permission that properly reflected the analysis in the Equality Impact Assessment ("EqIA").
The factual background and determination of Ground 4
i) The first was a seriously ill child with multiple conditions including chronic lung disease. Information was received from a Cardiac Nurse at the Hospital where the child was being treated, and from a Sister from the Community Nursing Service outlining his disabilities and highlighting the risk to the child of chest infections caused by air pollution. The child lived 90 m south of the edge of the landscaped edge of the quarry site and 130 m south of the proposed extraction limit of the quarry;
ii) The second was an adult with a severe visual disability. He had only one functioning eye, which was vulnerable because of the absence of tear ducts or moisture to protect its surface. His treating Professor had written highlighting the undesirable risks that could arise from dust and fumes from the quarry and its operations. He lived some 280 m east of the proposed site access.
"The indicated levels are safely within the respective Air Quality (Annual Mean) Objective and background levels of PM10 are well below 17 µg/m3 threshold as stated in the IAQM 2016 Guidance and as previously assessed it is not considered there is a risk of the air quality objectives not being achieved an in accordance with Local Air Quality Management Technical Guidance (TG16) (DEFRA 2016), further quantitative assessment is not required. …"
"a. The original Phases 4 and 5 have been subdivided to create a new phase (5b) parallel to the southern boundary of the site. … The remaining Phase 4 and 5 operational areas are now a minimum distance of 250m from the edge of the residential curtilage of Naboths Vineyard, as opposed to 130m under the original phasing plan. It should be noted that the nearest part of the proposed quarry extraction boundary to Ridge View (Phase 5a) is 270m from the property;
b. The applicant has agreed to accept a 'Grampian' condition stipulating that there shall be no entry into Phase 5b and the area shall remain unworked unless air quality monitoring in the period prior to working of phase 5b confirms that relevant air quality targets can be fully met. … Phase 5b would not be proposed for quarrying development until year 7. The areas facing the garden centre and Ridge View would not be proposed for quarrying until year 6 (for phase 5b) and 10 (for phase 6b). This would allow plenty of time for air quality monitoring and to ensure dust control measures are fully mitigated;
c. The applicant has agreed to accept a condition requiring submission of a scheme of additional / enhanced deployment of dust mitigation measures during the initial site development stage, with particular emphasis on formation of the landscape screening bunds along the southern margin of the site. …;
d. The applicant has agreed to accept a condition requiring submission and implementation of a detailed air quality monitoring scheme with identification of trigger levels for action and a requirement for appropriate action in the event that identified trigger levels are approached. The scheme would have a particular focus on monitoring air quality along the southern boundary of the site nearest to Naboths Vineyard and Ridge View.
e. It is confirmed that the site haul road would be formed in a 2m cutting with a bund to the south. An existing hedgerow along the western margin of the access road would be retained, improved and allowed to grow up to 3m.
f. The applicant has also agreed to accept a planning condition committing to a formal procedure for dealing with validated amenity complaints, with requirements for investigation and mitigation where appropriate."
i) First, the indicated levels would be "significantly below the national objective levels set in legislation": see [4.2]; and "the background air quality is significantly below the level at which action would be required under air quality objectives. The report also predicts that the process contribution from the proposed quarry would be such that it would remain well below national action levels for air quality and within the range of variation of natural background events": see [4.5]; and "the proposed quarry would not be likely to result in any material impact to local air quality given the availability of appropriate dust management controls": see [6.3];
ii) Despite the presence of the sensitive individuals (generally upwind of operations) and due to the additional phasing and positioning and bunding of the site access road, the Council's Regulatory Services did not consider there to be any dust concerns from the proposed application;
iii) The Applicant had proposed changes to the design of the quarry and operations. These could be reinforced by appropriate planning conditions.
"6.45 Regulatory Services have considered this matter with respect to Naboths Vineyard and also taking into account the more recent representation from Ridge View. They advise that the impacts of dust from the site at the sensitive premises are not anticipated to cause an exceedance of the air quality objective levels which would trigger the need for action, even taking into account the particular sensitivities of these receptors. The proposed operations would be significantly below the national objective levels set in legislation. The proposed site is upwind of the sensitive properties relative to the prevailing wind direction. Given also the proposed re-phasing and bunding of the site access road Regulatory Services do not consider there to be any dust concerns from the proposed application. Detailed conditions have been recommended in Appendix 1.
6.47 In conclusion, the 2 nearest receptor properties to the site contain individuals with particular susceptibilities to air quality issues and an equalities assessment covering these individuals has been included as Appendix 2. The concerns of the local community with respect to air quality are acknowledged. Regulatory Services are the Council's technical advisors with respect to air quality and they have not objected. They are satisfied that the proposals, as amended, together with the recommended planning condition will ensure that the proposals do not lead to any unacceptable deterioration in local air quality and will protect the health of local residents, including those with particular vulnerabilities."
"9. The developer shall submit noise and dust monitoring schemes for the written approval of the Local Planning Authority within 3 months of the date of this permission. The schemes shall detail the proposed procedures, locations and frequencies of monitoring. The approved schemes shall be implemented prior to the Mineral Export Commencement Date and the monitoring procedures shall thereafter be maintained at the Site in accordance with the approved details.
Reason: To protect residential amenity.
Note: Monitoring within the Site shall be supplemented by monitoring in other appropriate areas under the control of the applicant, under the provisions of the section 106 Legal Agreement accompanying this permission.
10. No development shall occur within Phase 5b and within 50m of the south east boundary of the Site in Phase 6b under the terms of this permission unless the following criteria are met:
i. The developer has submitted detailed noise and dust management plans specific to these areas of the development having regard to section 4.4 of the report reference CE-CB-0617-RP42 - FINAL by Crestwood Environmental dated 31st May 2018 and the results of noise and dust monitoring in preceding phases;
ii. The Local Planning Authority has provided written approval of the noise and dust management plans for the areas referred to in this condition.
Reason: To protect residential and local amenities.
12a. The dust mitigation measures stated in the Dust Management Scheme, report reference CE-CB0617-RP10-FINAL and report reference CE-CB-0617-RP42-FINAL (dated 31 May 2018) produced by Crestwood Environmental Ltd shall be carried out in full for the duration of all works on site. The sole exception to this shall be that no construction works shall take place outside of 0900 - 1600 hours Monday to Friday unless this has first been agreed in writing by the Local Planning Authority.
b. The quarry haul route shall be maintained so that it is beyond a distance of 200m from the edge of the property boundary of the dwelling known as Naboth's Vineyard until such time as Phase 5b comes in to operation (refer to Condition 10), in accordance with Section 4.3 of report reference CE-CB-0617-RP42 dated 31st May 2018.
Reason: To protect residential amenities.
14. In the event that a complaint is received regarding noise or dust impact and is subsequently validated by the Local Planning Authority, the Developer shall submit a mitigation scheme for the approval in writing of the Authority which shall provide for the taking of appropriate remedial action within an agreed timescale. The mitigation scheme shall be submitted within 10 working days from the day when the Developer is notified of the complaint and the scheme shall be implemented in accordance with the approved details.
Reason: To assist in safeguarding the amenities of the area from noise or dust disturbance by implementing an agreed procedure for dealing with any complaints."
i) "Dust monitoring scheme" was defined as
"the scheme for the monitoring of dust to be submitted to and approved by the Council in accordance with condition 9 of the Planning Permission;"
ii) By Clause 7.1 the Applicant covenanted to observe and perform the obligations set out in various schedules including Schedule 6;
iii) Schedule 6, Part 2, was entitled "Dust Monitoring" and included the following obligations:
"5. To carry out monitoring of dust in accordance with the approved Dust Monitoring Scheme at the Noise and Dust Monitoring Receptors from the date of the grant of Planning Permission for the lifetime of the Development.
6. Prior to the Mineral Commencement Date to supply records of initial dust monitoring carried out.
7. To keep written records of the dust monitoring carried out in accordance with 5 above and to supply those records to the Council within 10 working days of a written request to do so.
8. In the event that the levels of dust arising from mineral extraction on the Land are detected above trigger levels identified in the Dust Monitoring Scheme to submit a written mitigation scheme within 10 working days to the Council for approval and any such scheme shall be deemed approved if the Council does not respond within 3 weeks of its submission.
9. To fully implement and maintain all mitigation measures approved in the scheme identified in 8 above to ensure that the triggers levels in the Dust Monitoring Scheme are not exceeded and to repeat the action in 8 above as necessary."
"Breach of the equality duty (Ground 4) is not arguable when the Council had an impact assessment for the vulnerable individuals; there were modifications to the scheme to take this into account; and conditions were to be imposed as to monitoring etc. so to protect them and others potentially affected by adverse air quality."
1) Ongoing hydrological monitoring;
2) Identification of trigger levels where action would be taken including, if necessary, cessation of working in a given area;
3) A requirement to take appropriate mitigation action in the event that trigger levels under ''2' above are met;
4) Working not to proceed within the proposed bottom 2 metres of the excavation unless appropriate criteria are met with respect to groundwater monitoring, including maintenance of an appropriate freeboard above the permanent groundwater table.
The Environment Agency has been notified of the amended condition which is included in Appendix 1 and would be supported by an associated legal agreement clause securing monitoring beyond the application area boundary.
i. Concern that the maximum groundwater level in the Principal Aquifer beneath the site may have been considerably underestimated as it is stated that no representative groundwater level data has been presented with the application. There is a chance that the water table may (in a wet winter) rise above the proposed base of the quarry at 106m AOD.
ii. Concern that the catchments to springs are poorly defined and the larger springs may be from the Principal Aquifer and not from perched groundwater bodies. The very limited data that has been presented can be interpreted in different ways. There are licensed abstractions and a scheduled ancient monument downstream that are dependent on maintenance of the current flow regime. There is no baseline monitoring of flows. Without baseline data there is no chance that impacts can be assessed and adequate mitigation planned.
iii. With respect to the ancient woodland the applicants have not provided any sort of rebuttal to the 50 m stand-off that is required by Natural England's Standing Advice. Therefore a precautionary approach must be taken, and at least 50 m standoff should be insisted upon.
i. It is not proposed to extend operations into the Principal Aquifer. The applicant is willing to accept a condition ensuring that a minimum freeboard is retained above the aquifer. A freeboard of 2m is suggested, using results of the proposed groundwater monitoring scheme. In practice however, the applicant's hydrological data indicates that any freeboard is this unlikely to be less than 8m.
ii. It is also considered that any assertion that all the springs, seepages etc. (including those at higher levels) being wholly related to the Principal Aquifer is not robust. Nevertheless, as the proposals provide for a minimum 2m freeboard and that extraction will not progress below circa 110mAOD until around 7 years in to the future, a detailed monitoring regime will ensure the protection of the Principal Aquifer and account for the future situation. The proposed planning condition and controls (attached as you previously provided to the EA), which builds upon the technical advice from the EA, is considered a more robust and practical approach, providing certainty throughout operations over the lifetime of the proposed development. The approach also allows for operations and the planning authority to respond accordingly to long term in-operation monitoring, through review and mitigation as may be necessary. This is a standard approach in relation to quarrying operations.
iii. Given that the application makes no provision for working into the Principal Aquifer and that risk mitigation proposed in the original ES was that a minimum 2m freeboard should be retained below extraction, we would propose this become a planning control/condition upon any planning permission. This would also be a key 'criteria' to be included in any Hydrogeological Monitoring Scheme.
i. first, "to check the unrestricted sprawl of large built-up areas":
ii. second, "to prevent neighbouring towns merging into one another";
iii. third, "to assist in safeguarding the countryside from encroachment";
iv. fourth, '"to preserve the setting and special character of historic towns'': and
v. fifth, "to assist in urban regeneration, by encouraging the recycling of derelict and other urban land".
- Test 1: The proposals would not hinder the objective of preventing unrestricted sprawl of large built-up areas. The proposed use is temporary, albeit comparatively long-term and the site is not in close proximity to any large built-up areas.
- Test 2: The proposals would not lead to neighbouring towns merging into one another. The site does not adjoin any towns and is adequately detached from the nearest settlements including Shipley and Pattingham.
- Test 3: The proposals would not lead to any permanent encroachment of the countryside. The quarry scheme is temporary and there would be phased working and restoration so the area of disturbance would be much smaller than the total site area at any one time. The changes which the proposed development will result in are reversible. Whilst there will be a permanent change to the landform following quarrying this will only be apparent at a local level as the site is set in a topographic depression, and it will remain open countryside. Canebuff ridge above the site will remain as a significant feature in the local landscape. Conditions can be imposed to support the mitigation measures included in the application.
- Test 4: The proposals would not impact adversely on the setting and special character of any historic towns. The nearest historic town of Bridgnorth would be unaffected by the development. The Council's Conservation section has not objected.
- Test 4 [SIC]: The proposals would not hinder the ability to assist in urban regeneration. Supply of mineral from the site to the applicant's established local markets would be expected to assist with urban regeneration.
Landscape and Visual Impact
Regulators Services initial consultation response:
Having considered the dust assessment submitted with this application I am of the opinion that the mitigation measures proposed are satisfactory and should ensure no significant detrimental impact at nearby residential and commercial properties. As a result I propose the following condition:
i. All dust mitigation measures stated in the Dust Management Scheme, report reference CECB0617-RP10-FINAL produced by Crestwood Environmental Ltd shall be carried out in full for the duration of works on site. Reason: to protect the amenity of the surrounding area.
In relation to noise it is noted that mitigation is proposed in section 5-5.2.3 of the Noise Assessment report ref CE-CB-0617-RP17-FINAL produced by Crestwood Environmental Ltd. Hours of operation are also specified in section 5-5.2.4 of the same report. I would advise that both all of these mitigation measures are suitably conditioned. In addition the noise assessment states that a 3.5m high bund to the south of the site and a 2.5m bund to the north of the site is required to bring noise levels down as much as possible. This would result in noise levels of 43.8dB LAeq 1 hour at The Alders and 49.4dB LAeq 1 hour at Naboths Vineyard. I would recommend that these levels are conditioned as the maximum levels to be found at these locations with monitoring undertaken by the quarry to establish that these levels are achieved. It is noted that the levels more than 10dB above background however the assessments are considered suitably conservative and it is noted that over the course of the development noise sources will become lowered in the site reducing noise at nearby receptors.
I note that there is an individual living in close proximity who may be particularly sensitive to dusts arising from this activity. Having considered if this should be taken into consideration I would note that when carrying out other functions under legislation used by Regulatory Services there is case law to suggest that sensitivity to a particular aspect should not be taken into consideration and instead the impact on the average person should be considered –. This is in relation to the Environmental Protection Act 1990 and Statutory Nuisance which falls under s79 of the Act.
However, in respect of planning having discussed this matter with my line manager and legal it is noted that sensitivity could be taken into consideration. Having said this the impacts of dust from the site in question at the premises where there is a sensitive individual is living is not anticipated to cause an exceedance of the air quality objective levels which would trigger action. Indeed the levels would be significantly below the national objective levels set in legislation and therefore I would consider that even though there is a sensitive receptor in the general area (noted to generally be upwind of the development with a prevailing wind hence reduced impacts likely) and due to the additional phasing and positioning and bunding of the site access road I do not consider there to be any dust concerns from the proposed application.