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Harris superquarry application refused
03/11/2000
The Scottish Ministers today announced their decision to refuse planning permission for the proposed development of a superquarry at Lingerbay, Harris.
The decision was announced today by Environment Minister Sam Galbraith in response to a parliamentary question by Rhoda Grant MSP for the Highlands and Islands.
The reasons for this decision are set out in a letter to the applicant, a copy of which has been sent today to all parties who attended the public local inquiry into this proposal.
Any party aggrieved by the decision may appeal to the Court of Session within six weeks. Given the possibility of such action can be added to the reasons given in the decision letter.
BACKGROUND
1. Lafarge Redland Aggregates Ltd propose to establish a quarry at Lingerbay to facilitate the extraction of an estimated 550 million tonnes of igneous rock (anorthosite) for construction aggregate over a period of 60 years. All export of aggregate would be by sea through an on-site port facility.
2. A planning application was submitted to the Western Isles Island Council on 25 March 1991. On 27 September 1991 the then Secretary of State issued a Direction requiring the Council to notify him should the Council be minded to grant planning permission. On 24 June 1993 the Council informed the Secretary of State that they were minded to grant planning permission. A Direction was issued on 6 January 1994 calling-in the application for the Secretary of State's determination.
3. A public local inquiry was held between 1 October 1994 and 6 June 1995. The Reporter submitted her report to the Secretary of State on 29 April 1999. The Scottish Executive assumed responsibility for considering the Reporter's report, and determining the application, on 1 July 1999.
4. On 12 July 2000 Scottish Natural Heritage was asked to provide scientific advice about whether or not any part of the application site should be identified as a Special Area of Conservation. On 2 August Lafarge Redland Aggregates sought judicial review of that action and a hearing took place between 11 and 13 September.
5. Lord Hardie, in answer to the petition, ruled, on 18 October, that:
- the respondents (the Scottish Ministers) are in breach of their statutory duty by failing to determine the Lingerbay planning application within a reasonable time.
- the decision by the respondents to refer the classification of the site to SNH for advice in the context of the determination of the planning application was ultra vires and,
- the respondents have acted in breach of Article 6 of the European Convention on Human Rights in respect of the delay in determining the application and the reference to Scottish Natural Heritage in the context of the planning process.
6. The letter announcing the decision is attached.
Dear Mr Sales
TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997
PROPOSED EXTRACTION, PROCESSING AND TRANSPORT BY SEA OF ANORTHOSITE FROM LAND NEAR RODEL, ISLE OF HARRIS, AND TO CONSTRUCT THE RELEVANT FACILITIES
1. This letter contains the Scottish Ministers' decision on the application for planning permission, lodged by Messrs Redlands Aggregates Limited (now trading as Lafarge Redland Aggregates Limited) with the Western Isles Islands Council on 25 March 1991, for the extraction, processing and transport by sea of anorthosite from land near Rodel, Isle of Harris, and to construct the relevant facilities. The Scottish Ministers have decided to refuse to grant planning permission.
2. The application was notified to the then Secretary of State, by Western Isles Islands Council, on 28 June 1993, in accordance with the Town and Country Planning (Notification of Application for the extraction, processing and transport by sea of anorthosite from land near Rodel, Isle of Harris and to construct the relevant facilities) Direction 1991. In terms of Section 32 of the Town and Country Planning (Scotland) Act 1972 the then Secretary of State directed Western Isles Islands Council, on 6 January 1994, to refer the application to him for determination. The Direction was given "in view of the existence of a number of important national issues that need to be considered by the Secretary of State ( for example, the environmental implications of such a development in a National Scenic Area)".
3. The application was subsequently considered at a public local inquiry, held between 11 October 1994 and 6 June 1995 by Miss G M Pain MA DipTP(Lon) MRTPI. A copy of the report of the inquiry is enclosed.
Evidence at the Inquiry
4. Evidence relating to the consideration of the planning application is at Chapter 1 of the report and a general description of the site and surroundings is at Chapter 2. The planning history of the Lingerbay site is at Chapter 3 whilst legal submissions about the validity of the 1965 planning permission are reported at Chapter 4.
5. The evidence led by the parties to the inquiry is reported between Chapters 5 and 23. Written submissions are summarised at Chapter 24 and details of proposed conditions and the Agreement under Section 50 of the Town and Country Planning (Scotland) Act 1972 are at Chapter 25. Those who attended the inquiry are listed in Appendix 1 to the report.
Consideration by the Reporter
6. A compilation of the Reporter's findings of fact is at Chapter 26 of the report. Her conclusions and recommendation that the application should be approved, subject to the recommended conditions, is at Chapter 27.
Post Inquiry Correspondence, Evidence etc
7. The Scottish Ministers have received post inquiry correspondence from a number of individuals and bodies, both supporting and opposing the proposed development Supporters have highlighted, amongst other matters, the number of jobs the proposal is expected to create and the benefits this will have for the economy which, in turn, should assist in reducing the outflow of the economically active population from Harris. Objectors have argued that there is evidence that alternative supplies of aggregates are readily available and that demand is now low, primarily because of a reduction in road-building. Amongst other issues raised are the procedures to be followed with regard the development of harbour facilities at Lingerbay and the proposed revision of the English planning policy document "Mineral Planning Guideline No6", the argument with regard to the latter being that any grant of planning permission in the absence of a revised MPG6 would be premature and not in the best interests of the local economy or the environment.
8. Correspondents have also drawn attention to legislative changes arising since the close of the inquiry, including the introduction of the Town and Country Planning (Scotland) Act 1997; the Harbour Works (Assessment of Environmental Effects) Amendment Regulations 1996; and the Town and Country Planning (General Permitted Development) (Scotland) Order 1997. Attention has also been drawn to the issue of a number of new and revised planning circulars, guidelines and advice notes, in particular SODD Circulars 12 and 34 of 1996; 25 of 1997 and 4 of 1998; National Planning Policy Guidelines (NPPG) 4, 14, 15 and 17; the consultative draft version of revised NPPG1; and Planning Advice Notes 50 (with Annexes) and 51. Also noted were Western Isles Islands Council's proposed policies contained in the draft Harris Local Plan (not yet adopted) and the draft Minerals Policy Alteration to the Western Isles Structure Plan (not yet submitted for the Scottish Ministers' consideration).
9. The Scottish Ministers sought advice from Scottish Natural Heritage on 12 July 2000. As you are aware, that reference was the subject of a successful judicial review. In light of that case, the Scottish Ministers have not considered the advice received from SNH.
10. The Scottish Ministers take the view that arguments about alternative supplies and low demand should not influence their consideration of this case. The viability of a particular project, in terms of supply and demand, is a matter of commercial judgement and regard should not be had to such matters when determining a planning application. The Scottish Ministers are of the opinion, however, that had planning permission been granted it would have been appropriate, and indeed sensible, to require that a bond was in place to ensure that restoration of the site could take place in the event of default by the developer. In this respect they note that a legally binding agreement has been concluded between the applicants and Western Isles Islands Council which includes provision for a restoration bond for the sum of ?1million. The Scottish Ministers note that the Reporter has found this to be acceptable and see no reason to disagree with her view.
11. The construction and operation of the proposed harbour facilities would involve a number of overlapping jurisdictions involving different consents, licences and orders. The planning aspects before the Scottish Ministers only involve land use above the low water mark. The Scottish Ministers understand that the applicant's intention was to apply for a Harbour Empowerment Order under Section 16 of the Harbours Act 1964. Responsibility for Harbour Orders was, at 1 July 1999, devolved to the Scottish Executive. The Scottish Ministers note that the applicant would also have to consider the need for an environmental assessment under the Harbours Act 1964.
12. The relevance of the English MPG6 to this proposal is discussed between paragraphs 20 and 30 of this letter. Based on the reasoning as set out in those paragraphs, it is the view of the Scottish Ministers that any review of MPG6 is irrelevant to the consideration of this application. The Lingerbay application should be assessed against the Scottish guidance, including NPPG4. The Scottish Ministers also note that the local plan and the alteration to the structure plan are still at the draft stage and have not yet been adopted/approved. Accordingly they take the view that the content of these documents should be afforded less weight than the extant development plan.
13. In summary, the Scottish Ministers have had regard to all correspondence received, and evidence arising, since the close of the inquiry and have taken into account those new statutory provisions, new and revised planning circulars, and other new and revised guidelines and advice notes which have come into force since the close of the inquiry. They do not, however, consider that any of these matters raise any new issues or contain any new material which would affect their conclusions on this application.
The Scottish Ministers' Decision
14. The Scottish Ministers have carefully considered all the evidence presented at the inquiry, including the written submissions, the Reporter's Findings of Fact and her conclusions and recommendations thereon. Subject to the following, they accept the Reporter's Findings of Fact and agree with her reasoning and conclusions, so far as relevant to this determination, and adopt them for the purposes of their own decision. They do not, however, accept the Reporter's recommendation.
15. At Finding of Fact 3.13 the Reporter indicates that the "1981 permission has been partly implemented and remains in force until March 2001". However, at Finding of Fact 4.49 she states "I consider that the determination as to the validity of the 1965 decision is not a matter which is before the Secretary of State". The Scottish Ministers agree with this statement and consider it is equally applicable to the matter of the 1981 permission. Whilst the issue of these previous consents may have been regarded as a material consideration in the determination of the current proposal, a ruling as to the validity of those consents is not a matter before the Scottish Ministers. Accordingly they do not accept the final sentence of Finding of Fact 3.13.
16. At Findings of Fact 11.193 and 14.318 the Reporter states that "Section 262C(4) of the 1972 Act requires that special attention be paid to the desirability of preserving or enhancing the character or appearance of National Scenic Areas". Section 264(2) of the Town and Country Planning (Scotland) Act 1997 (which replaced and repealed the 1972 Act) requires that, where any area is designated as a Natural Heritage Area (NHA) special attention shall be paid to the desirability of preserving or enhancing its character or appearance. The Scottish Ministers note that whilst the provision to which the Reporter refers has now been repealed, statute has saved the requirement to "preserve/enhance" provided the NSA designation is not cancelled.
17. Findings of Fact 19.114 to 19.119 deal with the potential disturbance of otters and the Reporter's conclusions on this issue are at paragraph 27.36.
18. The Reporter takes the view, on the evidence available to her, that there is a local population of at least 6 otters over a 15km stretch of the coastline, with one active holt in the designated quarry area and on Lingerbay island and that there could be as many as 11 otters in the Lingerbay area apart from the island. The Reporter finds that there will be disturbance to the local otter population at Lingerbay but that in terms of the relevant provisions of the EEC Directive and its implementation in the UK regulations the development will not be detrimental to the maintenance of the population of the species at a favourable conservation status. She also finds that if planning permission is granted any disturbance will not be unreasonable. The quarry would destroy one active otter holt and the otter population might decline by between 1 and 6 individuals. Whilst, from the evidence available to the Reporter, there may be room for debate about the precise effect of the development on otters, the Scottish Ministers do not have evidence to suggest that this would be radically different from that which she predicts.
19. The Scottish Ministers take the view, however, that the Reporter has misdirected herself about the European law relating to otters. In particular she mistakenly refers to a Directive 82/72/EEC, which does not exist. Instrument 82/72/EEC is not a Directive. It is the Council Decision through which the EEC adopted the Berne Convention on the conservation of European wildlife and natural habitats. The Reporter then refers to Article 6 of 82/72/EEC, although that instrument does not have an Article 6. The Reporter also refers to Lutra vulgaris instead of Lutra lutra; the latter is the species which is protected by European law and which is believed to be present on the site. However these differences have not led the Scottish Ministers to disagree with the Reporter's recommendation.
20. Findings of Fact 11.199 to 11.213 relate to Government policy principles contained in Mineral Policy Guideline No 6 (MPG6) (England and Wales) and National Planning Policy Guideline No 4: Land for Mineral Working (NPPG4) (Scotland). Findings of Fact 12.165 to 12.195 also relate to these Guidelines and Findings of Fact 14.281 to 14.331 are also of relevance. The Reporter's conclusions with regard to the application of these guidelines are set out between paragraphs 27.49 and 27.69.
21. Paragraph 66 of NPPG4 sets out criteria for the selection of additional superquarries and paragraph 19 describes the two tests which require to be met if planning permission is to be granted within a NSA.
22. These tests were subsequently amended by the publication, in January 1999, of National Planning Policy Guideline 14: Natural Heritage (NPPG14). This indicates that development which would affect designated areas of national importance (which include NSAs) should only be permitted where:
- the objectives of designation and the overall integrity of the area will not be compromised; or
- any significant adverse effects on the qualities for which the area has been designated are clearly outweighed by social or economic benefits of national importance.
23. The significance of the change to the second test is that it provides clarification that it is the effect on the designated area (NSA etc), rather than the development site (as may have been implied by NPPG4), which should be assessed.
24. In considering the first test the Reporter is of the opinion that the proposed development generally meets NPPG4 paragraph 66 criteria. But she takes the view that the inherent physical scale, changes in the landform, and industrial characteristics of the proposed superquarry would inevitably be so significant that the underlying objectives of the NSA would be adversely affected. Accordingly she concludes that the proposal fails the first of the two NSA tests. The Scottish Ministers accept the Reporter's conclusion.
25. In considering the second test the Reporter finds that the relevant national mineral policies are those contained in MPG6 (England and Wales) and NPPG 4 (Scotland). Whilst she finds that the policy content of MPG6 does not apply to Scotland, she also finds that the Government's objective of reducing the supply of aggregates from primary land-won sources in England, the projected increase in aggregate imports into England, and the clear references to the possibility that remote quarries in Scotland could contribute to meeting demand in the South-East of England, combine to make MPG6 a material consideration in the determination of the Lingerbay proposal. She concludes that if imports of aggregate from abroad are to be avoided, then there is a national interest in securing superquarry development in Scotland.
26. The Reporter concludes that the Scottish 1994 NPPG4 "Land for Mineral Working" and its English counterpart the 1994 MPG6 "Guidelines for Aggregates Provision in England" are material considerations which must carry considerable weight in the determination of this application. NPPG4 contains specific guidance in relation to the principles of superquarry development and for minerals development generally, including specific policy for such development proposals within a NSA. There is support in principle for up to four coastal exporting superquarries in Scotland, including that existing at Glensanda, which would contribute to the reduction in the amount of traditional land won aggregates used in England, and contribute to potential employment opportunities in remote rural areas.
27. The Scottish Ministers do not agree with the approach adopted by the Reporter in dealing with this issue. Furthermore they do not agree with the Reporter's conclusion on the basis that MPG6 does not apply in Scotland. It is not, therefore, a material consideration for the purposes of their determination. In addition they note that she considers MPG6 to be the counterpart of NPPG4. This is not so. NPPG4 provides the general policy background for all mineral working in Scotland. MPG6 deals only with "Aggregate Provision" and the apportionment of demand and supply to the various English Regions. NPPG4 does not deal with that level of detail. The Reporter also states that NPPG4 makes provision for Scottish superquarries "which would contribute to the reduction in the amount of traditional land won aggregates used in England" (paragraph 27.48). NPPG 4 makes no such statement.
28. In several other instances the Reporter refers to the need for aggregates being "primarily related to the market in South East England" (e.g. paragraph 27.59). In addition she refers to the fact that the exploitation of minerals in the UK can assist with the balance of payments, either through export or import substitution. However since this policy is contained in MPG6, which does not apply in Scotland, it is not relevant. In any event the Scottish Ministers are of the opinion that the planning system has no control over the eventual market to be served and that production from Scottish superquarries cannot be directed exclusively, or even partly, to English markets.
29. The Reporter's consideration of the second test, therefore, presents some difficulties in so far as, in the Scottish Ministers' opinion, she has made inappropriate connections between Scottish policy as contained in NPPG4 and English policy in MPG6, even though she does state that the policy content of MPG6 has no currency in Scotland. Accordingly, the Scottish Ministers take the view that, in the context of the second test and in relation to her recommendation, the Reporter has come to the wrong conclusion.
30. The Scottish Ministers' disagree with the Reporter's recommendation based on her reasoning and conclusions with regard to the second of the tests set out in paragraph 19 of NPPG4, i.e. that mineral extraction should only be permitted where any adverse effects on the environmental qualities for which the site has been designated are outweighed significantly by the national benefits that could accrue from the mineral extraction (as subsequently amended by NPPG14 referred to in paragraph 22 above). The term "national benefits is defined at paragraph 20 of NPPG4 which states that these could include the public interest in securing economic developments of national importance, or employment creation and balance of payments considerations. However these differences have not led the Scottish Ministers to disagree with the Reporter's recommendation.
31. At paragraph 27.76 the Reporter concludes that, overall, the proposed development would be in the national interest and that the harm to the National Scenic Area (NSA) during the lifetime of the quarry would be offset by the economic benefits of the proposal, both nationally and locally in the Western Isles. The Reporter appears to base this view on her conclusions, at paragraph 27.69, where she states that if imports of aggregates from abroad are to be avoided, there is a national interest in securing superquarry development in Scotland. And also at paragraph 27.69 where she states that there is a national interest in securing economic development, and therefore employment, in remote rural areas. The Reporter further notes, at paragraph 27.70, that the percentage of this very large NSA that will be affected is very small both in terms of the actual area of the quarry and its ancillary facilities and its visibility from other parts of the NSA.
32. The Scottish Ministers have however noted that the Reporter has made a number of Findings which could lead to an alternative conclusion. At Finding of Fact 11.213 the Reporter states "the evidence does not permit a finding that refusal would seriously prejudice the legitimate national interest in the continuing supply of aggregates sufficient to support national economic growth" and at Finding of Fact 14.310 she states "Irrespective of the exact scale (width and height) of the quarry, it will be exceptionally large and I find that there would be a very significant effect on the landscape in the immediate locality. There will also be a very significant effect on views from the sea area to the east of this part of the coastline, and from parts of the hills themselves."
33. Furthermore, at Finding of Fact 14.312 the Reporter states "In addition, the quarry would be readily visible as a large and intrusive feature from a considerably wider area of sea to the east where viewers would observe the quarry as a very significant man made element in an otherwise semi-natural landscape of coast and mountain" and at Finding of Fact 14.322 she finds "that the proposed quarry will completely change the landscape characteristics of Lingerbay by changing the scale and character of its coastline and its hinterland. Furthermore during the lifetime of the quarry it will introduce a very significant industrial type of activity, including ship loading facilities, which will permanently change the existing small scale pattern of the rocky indented coast and islets.".
34. The Scottish Ministers have also noted the Reporter's Finding of Fact 14.326 which states "?the detrimental effect on the environment must be regarded as very significant. The quarry would create an area of massive disturbance, involving man made industrial features, heavy plant, and disruptive noise. Unless there are overriding reasons relating to national benefit, which is a matter for my conclusions, the acceptance of such an intrusive feature within such an important landscape would set a precedent that would undermine the continued successful operation of policy for NSAs". Also at 14.328 which states "Given the very large scale of the proposal, I do not consider that any modest reduction in size, compatible with the scope of the planning application, would achieve any worthwhile reduction in the severity of the impact on the NSA." Also Finding of Fact 14.329 which concludes "?.considering the integrity of the NSA, such a quarry would still have a significant impact on this part of the NSA.". Finally, the Scottish Ministers have noted that, notwithstanding her conclusions at paragraph 27.70, referred to above, the Reporter has also concluded (paragraph 27.43) "that the proposed development would be contrary to the terms of Structure Plan Policy PD1 which seeks to protect, maintain and enhance the NSA." With regard to the natural environment of the Western Isles I conclude that although there will be some risks and adverse effects involved, with adequate controls these are acceptable if other policy objectives are found to be of overriding importance". And also, at paragraph 27.71, "that the development of the quarry???.will also introduce a substantial industrialised area on the lower slopes on a scale not found anywhere else in the NSA. It would be totally at odds with the designation as part of the area of outstanding scenic beauty, and significantly alter the landscape character of the immediate area.".
35. The Scottish Ministers accept that the development could bring substantial benefits to the local economy through the creation, directly and indirectly, of up to 200 jobs. They also acknowledge the importance of the Council's corporate strategy to encourage the economically active to remain or return to the islands by improving employment opportunities and reducing unemployment. However, having had regard to the Findings of Fact described above, they take the view that the Reporter has, in her overall conclusions, seriously understated the impact of the proposed development on the NSA. They have, therefore, concluded that the objectives of designation and the overall integrity of the area will be compromised and that the social and economic benefits which the Reporter has found are likely to derive from the proposed development do not clearly outweigh the significant adverse effects on the quality for which the area has been designated. As such, they take the view that neither of the tests set out in paragraph 19 of NPPG4 (as amended by NPPG14) have been met.
36. Accordingly the Scottish Ministers hereby refuse to grant planning permission in respect of the extraction, processing and transport by sea of anorthosite from land near Rodel, Isle of Harris, and to construct the relevant facilities.
37. The foregoing decision of the Scottish Ministers is final, subject to the right, conferred by Sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997, of any person aggrieved by their decision to apply to the Court of Session, within 6 weeks of the date hereof. On any such application the Court may quash the decision if satisfied that it is not within the powers of the Act, or that the applicant's interests have been substantially prejudiced by a failure to comply with any requirement of the Act, or of the Tribunals and Inquiries Act 1992 or of any orders, regulations or rules made under these Acts.
38. A copy of this letter and the public local inquiry report have been sent to Western Isles Islands Council and to all other parties who appeared at the inquiry.
39. The productions submitted to the inquiry are currently held in this office. If not collected, they will be disposed of after 3 months.
Yours faithfully
IAN FIRTH
News Release: SE2846/2000
3 Nov 2000