A site meeting was held this week to discuss what impact the proposed modifications to Birdcage Lane – required to facilitate access to the permitted quarry at Straitgate Farm for up to 200 HGV movements a day – would have on Trees F and G:
the two majestic TPO-protected oak trees that sit beside the lane and either side of the proposed site entrance.
Following the submission of plans last month by Aggregate Industries for the rural single carriageway lane, Devon County Council called for a site meeting, and this week five officers from the Council, including three from highways, and one from trees, together with two tree officers from East Devon District Council, met with four personnel and consultants from Aggregate Industries, and one tree consultant representing Straitgate Action Group; 12 attendees in all.
Should we be surprised? Are the company and its chosen consultants incompetent? Or does this demonstrate –
and we did warn – why Aggregate Industries should never have chosen Birdcage Lane for a site entrance? Either way, it doesn’t reflect well on the company.
Three mature oak trees abut the proposed works: Trees F and G, and third-party oak Tree H. For these trees to remain unharmed by the works – as
conditioned by the Planning Inspectors – the supply of air and water to their roots must be remain unhindered. It’s not rocket science.
As things stand, the new road designs are likely to have a high impact on all three trees.
3.3 The initial scheme was a no-dig construction method. However, this construction was considered unacceptable by DCC Highways Authority (response dated 02 Nov 2021) [CD6.33A] commenting that ‘because of the size and weight of the haulage vehicles that will use the junction and Birdcage Lane, “No Dig” solutions for new road construction are not an option for consideration’. Subsequently a metalled road became part of the amended access arrangements to effectively cope with on-going movement of heavy machinery and HGVs.
3.4 The following arboricultural report (Chapter 3 – Landscape Soils and Arboricultural Report) [CD4.26A] acknowledges that the "no dig" construction will potentially interfere with the root protection areas of Trees F and G and moreover ‘it is likely they will be damaged by the development and need to be felled’. The report considers that trees could survive the works, if the actual roots are deeper than the excavations / disturbance required. The mitigation provided is a watching brief by an Arboriculturist at the time of the works being carried out. This is outlined in ‘Detail Area, R22/L/3-3-005’ [CD4.63A] ‘to monitor the condition of trees F and G, and only remove them if necessary’. The proposal is to remove tree H...
The Council’s consultant concluded:
6.2 The Appellant’s proposal does not adequately consider the significant impact upon the Notable trees F and G impacted as a result of works to the access. These trees are mature and of potential veteran status and should be re-categorised as A (high value) with the sub-category 3 (wildlife and/or cultural attributes). The buffers proposed by the Appellant through the RPAs are inadequate, particularly in the light of amendment of means of construction of the access road from ‘no dig’ to metalled, while the Appellant’s proposed mitigation of a ‘watching brief’ is insufficient to secure their protection and would not contribute or link to the wider ecological network or green infrastructure requirements.
In respect of Tree H, Devon County Council wrote to Aggregate Industries in 2017 and
said:
Clearly, your proposal to carry out works in the highway is, as admitted in your own application documentation, likely to have a detrimental impact on the oak tree within the hedgerow known as "Tree H."…
The issue, however, is whether Devon County Council as Highway Authority, in entering into a s.278 agreement with Aggregate Industries for works within the highway would knowingly be sanctioning works that would damage the property of a third party.
It is clear that the size of vehicles involved in the application render a 'no dig' solution inappropriate for the depth of road construction that would be required. It is also clear that the Section 278 works for widening and construction of the carriageway are likely to result in damage to the tree and its potential demise. The tree in question is in the ownership of a third party and the highway authority is aware that he is opposed to any damage to the tree. He considers it to be in relatively good health, a view that is shared by the district council’s tree officer. In these circumstances the highway authority would not be in a position to enter in to a S278 agreement unless this matter is resolved. I would strongly suggest that you contact the owner of the hedgerow and tree and try to reach agreement before you proceed further with this application or come back to us with a proposal that might be acceptable which does not impact on third party assets or possessions.
And
again regarding the
'no dig' solution:
Because of the size and weight of the haulage vehicles that will use the junction and Birdcage Lane, "No Dig" solutions for new road construction are not an option for consideration.
What we now find – inappropriate or not for the size of vehicles involved, and no doubt because of the protection that must by law be afforded to the TPO'd trees – is that the plans submitted by Aggregate Industries are indeed predominantly for "No Dig".
Devon County Council will now have to decide whether a no-dig solution is appropriate for a public highway with up to 200 HGVs a day; apparently, the Council has never accepted such a proposal before.
Devon County Council might of course be persuaded by the temporary nature of the permission, as per Condition 4, which states:
the winning and working of sand and gravel and all operations and uses of land authorised by this permission (save for any restoration and aftercare pursuant to conditions 51 and 53) shall cease not later than 10 years from the date of the implementation of this permission.
However, what quarry ever finished in the time allocated? Mineral working at Venn Ottery – down the road from Straitgate – was permitted in 1965, and finished
51 years later. Even before any extraction at Straitgate has begun, we’ve been told the 10 years is likely to be extended. Aggregate Industries itself has already said that
the site is likely to be mothballed.
Apart from all that, the plans have thrown up a number of other problems.
The first is that the lane is not wide enough to accommodate Aggregate Industries' plans! Yes, you read that correctly.
We had
warned Devon County Council back in 2017 that the verge to allow two-way carriageway construction was not as wide as Aggregate Industries had assumed. The company and its consultants can’t even be trusted with a tape measure.
Birdcage Lane has a grass verge on both sides of the carriageway.
Verges, especially on rural lanes, are not only there for wildlife and to protect the hedgebanks, they are also important for livestock and horses. S71 of the Highways Act 1980
says:
(1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway adequate grass or other margins as part of the highway in any case where they consider the provision of margins necessary or desirable for the safety or accommodation of ridden horses and driven livestock; and a highway authority may light a margin provided by them under this section.
Permission was granted for a minimal 1.0m grass verge to be maintained, as well as the 1.2m gravel path on the other side for pedestrians:
At the meeting this week, there was talk of amending the permission to allow Aggregate Industries' new plans to fit in – so that there would be no grass verge left at all.
All these trees destined for the chop are outside of the red line planning boundary.
Conditions 39 and 41 of the planning permission say:
39. All existing trees, shrubs and hedgerows within the site and on its boundaries shall be retained and protected from damage during the process of extraction and subsequent restoration unless they are identified to be removed as part of the current phase or a succeeding phase of mineral working or restoration as set out in the approved plans.
41. Outside the designated mineral working areas, trees shall not be felled, lopped or topped or have their roots damaged and hedgerows shall not be removed, thinned or cut back without the prior written consent of the Mineral Planning Authority…. All tree and shrub planting and other landscape works implemented pursuant to this permission shall be maintained and shall be protected from damage for the duration of the extraction and restoration works, and for ten years from the completion of restoration in any part of the site.
There are a multitude of other issues – including this major blooper:
With the new road surface raised by some 750mm above current levels, the pedestrian footpath next to this carriageway – a condition of the permission intended for school children and other lane users – would sit even higher, at about 900mm.
The construction of the footway would need to be against the hedgebank – measured at about 1m, and less in places – on the eastern side of the lane, and would block this field gateway:
Who knows if the hedgebank is strong enough to support all this material and the weight of laden HGV traffic? Both belong to a third party, whose permission has not been sought, and who has been a longstanding objector to the proposal.
Aggregate Industries has once again demonstrated just how good it is at not thinking things through.
Following the meeting this week, the company has been tasked with a long list of further work – some of which you might have thought should have been done before the application was determined, not afterwards – including supplying more accurate topographical surveys showing the exact position of tree trunks, hedgebanks, levels etc, supplying an accurate tree survey showing the results of tree root investigations and the actual root spread of all the mature trees to be retained, providing further information on the new drainage ditch arrangements, assessing the impact of the work on the third party hedgebank and field entrance, assessing the extent and impact of tree removal on the splay to Exeter Road, etc.
Aggregate Industries is already halfway through the three years it has to implement the permission,
granted 5 January 2023. The modifications on Birdcage Lane are but one of the obstacles the company must overcome.
