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REVIEW OF OLD MINERAL PERMISSIONS
ANNEX TWO CASE STUDIES
In order to provide deeper insights on the review process, a series of case-studies were undertaken. These were of two types:
- Examination of the approach to the review process adopted by the planning authority. Recognising that considerable variations exist between planning authorities in progressing the review, it was considered appropriate to establish if a particular administrative/ organisational arrangement offered benefits that might usefully be adopted elsewhere.(Cases F- G below)
- Examination of individual review cases to provide a better understanding of common issues, and a context against which the effectiveness of the statutory provisions might be evaluated. (Cases A-E below)
Case Study A
This case refers to a hard rock quarry from which extraction had occurred for at least a century. Following the introduction of planning controls, permission was initially granted in 1949. A second planning permission to extend the quarry was granted in 1974. This latter consent imposed conditions to restrict the depth of working and landscaping works. The landscaping requirements extended to include part of the area covered by the 1949 consent. Under the terms of the review the site was classified as an active Phase 1 site.
Two planning applications to extend the entire quarry vertically in order to access recoverable reserves amounting to the equivalent of approximately 25 years of working were refused planning permission immediately prior to the submission of a new scheme of conditions under the review. The primary reasons for refusal related to potential problems of dust and ground vibration due to blasting, and inadequate landscape restoration. In this regard, a settlement adjacent to the quarry had expanded over the previous 30 years, bringing residential properties relatively close to, but visually well screened from, the working. Both of these decisions were the subject of appeal at the time of the review submission.
The submitted scheme of conditions, accompanied by an environmental impact assessment, also sought to deepen the quarry, although the extent of recoverable reserves had been significantly reduced from those of the recently refused applications. The review submission attracted objections from local residents, primarily on the grounds of ground vibration. Arguably, the key feature of this submission was a significantly enhanced restoration scheme, incorporating phased elements, and leading to the creation of a high quality recreational and nature conservation feature.
This initial submission was the subject of considerable negotiation with the quarry operator, leading to the approval of a revised scheme of conditions. This was essentially based on a mutually accepted compromise to facilitate a further 10 years of working, based on a significantly reduced vertical extension from that proposed, while maintaining the annual tonnage output at its existing level. The revised conditions included blasting arrangements to reflect the highest standards of protection as established the government's research report on ground vibration from mineral working. The appeals against the earlier planning decisions were subsequently withdrawn.
In this case, the review process provided a platform for securing an enhanced site restoration scheme that will provide a beneficial facility in the longer term, while reducing the potential environmental impact on the local community. For the operator, continuity of product production was ensured through secured working another 10 years. In this case, alternative progression of proposals through the appeals process would have produced an inevitable outcome of "winners" and "losers" among the various parties, and at best, would have created a land restoration scheme of inferior quality to that now to be pursued.
Case Study B
This case refers to an extensive sand and gravel working, located in open countryside adjacent to a trunk road which is a major tourist route through the area. The working had been based on an accumulation of planning permissions granted in the 1950's and 1960's. These permissions generally made no provision for eventual restoration of the land, except for removal of all buildings, plant and machinery on the cessation of extraction. In the early 1980's, an application for proposed working of gravel close to the trunk road was withdrawn prior to likely refusal, but created the impetus for extensive discussions between the planning authority and the operator. Such discussions resulted in a comprehensive review of the workings, and through the use of a (then) Section 50 Agreement a programme of site rationalisation and improvement was established. This incorporated agreement on the sequence of future working, the introduction of landscaping measures and screening through retention and enhancement of topographical features. The site was an active Phase 1 site for the purpose of the review.
At the time of the review submission, the operator was also seeking to provide continuity of working through a further extension to the site. This proposed extension was the subject of a separate planning application submitted at approximately the same time as the submission of a new scheme of conditions. The proposed extension was located out of sight from the public road and was acceptable in all other respects. The scheme of conditions would be applicable to the remainder of the working and provided an opportunity to revisit the matters originally subject to the Section 50 Agreement.
The proposed scheme of conditions covered site restoration, after-use, further landscape enhancement and screening, dust control, water discharge, hours of working and regulation of vehicles leaving the site. Although generally acceptable to the planning authority as submitted, the review process encouraged discussion on alternative after-uses in particular. The outcome was agreement that part of the site would not be returned to agricultural use but provide an opportunity to extend an existing adjacent woodland. This would have the effect of linking visually isolated landscaping introduced around the central processing plant to the naturally regenerating woodland on adjacent land. A new pond within the proposed wooded area initially required for watering of newly planted trees will be designed to enhance its nature conservation value. It is intended in the longer term that the area centred on the water feature could be opened to the public.
The primary benefit arising in this case was landscape enhancement, securing improved restoration of potential benefit to nature conservation interests and eventual creation of a new public recreational facility. The role of the review provisions was simply that it encouraged dialogue between the land- owner, mineral operator and planning authority in a manner that was unlikely to have otherwise occurred.
Case Study C
This case refers to a hard rock quarry that had been granted planning permission with no conditions attached in the 1950's. The initial issue raised in the review of this consent was that the area covered by the original decision was not adequately defined, and as such, potentially gave extraction rights over the entire land holding. In such circumstances, there was the obvious prospect that in seeking to restrict extraction to the existing working area, a very significant compensation liability could be created for the planning authority. In reality, the mineral operator restricting the extraction area in the scheme of conditions averted this possibility. The submission was accompanied by an environmental impact assessment.
Although the scheme of conditions was generally acceptable as submitted, the application attracted significant opposition from the local community, including a large number of objections seeking closure of the quarry. While this is not uncommon elsewhere, it places increased pressure on the authorities workload in ensuring that such objections are "seen" to be handled in an appropriate manner. The community opposition was primarily based on concerns over hours of working and the adequacy of vehicular access arrangements. The latter aspect was exacerbated by an objection from a third party, who also held property interests relevant to the resolution of the access problems. It was questionable whether the objection was simply lodged by this party in order to enhance its position in the negotiation process. In many respects, this form of potentially "tactical objection" is not unique to this case, but can lead to a more protracted negotiation process than might otherwise occur.
An amended scheme of conditions was approved, incorporating additional conditions to reflect the form of compromise position negotiated by the parties. The review process secured a much greater degree of environmental protection over a considerable area than might otherwise have occurred had the developer chosen to exercise the extraction rights of the original consent. The process resulted in improved access arrangements, with provision also extended to ensure future maintenance. It must also be noted that this case provides a good example of a mineral operator entering into the review process in a highly co-operative and positive manner in order to secure future working consistent with high standards of environmental protection.
Case Study D
This case refers to an extensive site with planning permissions granted in 1949 and 1952 for extraction of sand, sandstone and fireclay. These consents simply required the removal of buildings, plant and machinery on completion of extraction. There was evidence that minerals had been extracted from the site over a considerable period of time prior to these consents. The site was classified as an active Phase 1 site for the purpose of review.
The first issue to be addressed centred on establishment of which parts of the site might require to be excluded from the review process. This arose by virtue of the fact that while sand extraction continued on part of the area covered in the original consents, other uses had also been developed on parts of the site where mineral working had ceased. This included use of part of the site for landfill, storage use and reworking of mineral waste believed to have commenced as permitted development prior to such activities being brought under planning control requiring express consent of the planning authority. This issue was not unique to this site, and has proved to be consistently problematic in all cases where subsequent consents were given to facilitate use of worked out areas.
Although a scheme of conditions relating to the entire site were submitted, the planning authority required the submission of further information through an environmental impact assessment. In doing so, the planning authority failed to set a deadline for the submission of such information. As a consequence, in spite of a series of reminders and reassurances from the applicant, no such information has been provided, and the case remains unresolved.
Case Study E
This case refers to a fireclay working for which planning permission was originally granted in the early 1950's. Although the consent covered a very large area, most remained unworked, with extraction confined to a relatively small part of the consented area. Unusually for a permission granted at that time, 11 conditions were imposed on the consent. These included restrictions on the annual rate of extraction, depth of working, storage of overburden and soils and restoration of the site. A feature of the site was that ownership had changed at least 4 times during the period of working, and extraction was undertaken sporadically, with minerals stored on site and transported off-site as and when required. The site was an active Phase 1 working for review purposes.
Although a scheme of conditions was submitted, it related only to that part of the site on which working had, or was likely, to occur. The mineral operator had indicated willingness to give up any right of extraction on other parts of the site, without compensation. The planning authority refused to deal with the application as a review case, instead requested that a new planning application be submitted for the site. It claimed that "unauthorised material changes" had occurred during the working of the site, notably in terms of the depth of working, rate of extraction and removal of materials other than fireclay from the site. The operator refused to submit a new planning application with such a requirement having no basis in law, but suggested that any outstanding matters could be incorporated within a Section 75 Agreement.
The planning authority sought to instigate enforcement action, but was unable to proceed as the mineral operator was able to demonstrate that the alleged breaches of conditions had occurred at least 15 years previously, and by a previous owner. As such, the alleged breaches were immune from enforcement action. As the mineral operator had submitted a new scheme of conditions as required by the statute, the planning consent did not cease to have effect, and working of the site continued.
The case remains unresolved, but working of the site has ceased and the mineral operator is in receivership. This case illustrates the problems that may arise when parties enter into the review process without willingness to negotiate to find mutually acceptable outcomes. It also highlights a potential "loop-hole" in the legislative framework, which simply requires the developer to submit a scheme of conditions.
Case Study F (Planning authority)
This case study refers to the approach adopted to the review by a rural authority responsible for an unusually large geographic area. The authority has an area office based structure, but for the purpose of the review all cases are handled centrally. The authority has a separate minerals register, facilitating ease of access for monitoring and management purposes, and incorporating information on each case specific to the review process. This includes, for example, recording of dates on which statutory notices, etc. were served.
The initial problem for the authority was in some cases to determine whether sporadically worked sites were active or not - an issue found in many other parts of Scotland. The authority tended to adopt a relatively cautious approach by including all potential sites in the first list, bearing in mind the implications of exclusion at this stage. As a consequence, a small number of sites were removed from the list as further information became available.
The key features of the approach adopted included:
- Development of a specific application form for the submission of schemes of conditions
- As a matter of policy, all review cases were the subject of EIA
- To ensure adequate scoping of each case, organised a formal meeting involving all agencies with a potential interest in the assessment
- Use of local hearings prior to determination of cases
The authority has completed review of all Phase 1 cases. It is of interest to note that the authority based on this initial experience, created some staggering of submission dates for the Phase 2 sites, to avoid workload peaking problems arising from the simultaneous submission of several applications.
Case Study G (Planning Authority)
This case study also refers to a large rural authority with significant numbers of mineral workings.
The authority operates a de-centralised area office structure, with decision-making also de-centralised.
Although the review is essentially undertaken as separate exercises within each of the area offices, a common register was initially established with guidance and significant input provided by a senior official with considerable minerals experience. As a matter of policy the authority has not required EIA for any cases to date, relying on statements of supporting information as the preferred method of securing the necessary information for decision-making. A notable feature of the review process has been allocation of cases within the area offices in a manner designed to encourage a degree of minerals expertise development within the staff of the authority. For this authority the most significant element of the process has been assembly of basic information for a high number of dormant sites. It has also experienced some unusually complex cases that have proved exceptionably difficult to resolve.
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