It’s not just Theresa May hunting for illusory "alternative arrangements":
I asked Theresa May's spokesman which potential technological solutions to avoid the backstop, the government has identified so far:— Adam Bienkov (@AdamBienkov) January 30, 2019
"We want to begin exploring exploring these options as soon as possible."
Aggregate Industries has also been asked about alternative arrangements: alternative arrangements for peoples’ drinking water supplies in the event of a failure caused by any quarrying at Straitgate Farm.
A letter has been sent to DCC by solicitors acting on behalf of Cadhay – a Grade I Tudor manor house reliant on the groundwater from Straitgate for its drinking water supplies and listed mediaeval fishponds.
In 2017, we posted So what happens if people lose their water supplies? DCC had asked AI:
The planning policy section of the application includes the text from the Devon Minerals plan, ‘any proposal should include provision for alternative supply in the event of derogation of private water supplies resulting from mineral development’. However, there is no detail on this in the body of the report. Full detail should be provided including proposals for either a bond or legal agreement dealing with this matter.
We pointed to AI’s Reg22 response dealing with the matter:
In the event that there shall be interference with any of the private water supplies (as indicated on plan to be agreed with Devon County Council, in consultation with the Environment Agency) or an inability to draw a satisfactory water supply in respect of any of the private water supplies and such interference or inability to draw a satisfactory water supply is in the opinion of the County Council, in consultation with the Environment Agency, on the balance of probability, attributable partly or wholly as a result of the winning and working of minerals at Straitgate Farm then AIUK shall forthwith at its own expense take such action or make temporary or permanent arrangements for the provision of any alternative or additional water supply to the users of the private water supplies as shall be necessary or appropriate in the opinion of the County Council, in consultation with the Environment Agency, to replace or compensate for the interference or inability to draw a satisfactory supply to the extent that the same is attributable to such activities associated with the winning and working of minerals at Straitgate Farm, such provision to be kept in place until a satisfactory water supply is reinstated. 2.8.1
AI’s assurances hardly provide much comfort. As we said at the time:
Locals will no doubt wonder about the interpretation of "any alternative". Would it be bottled water, emergency tanker supplies, or what? Some properties are miles from a mains supply, but if mains were to be installed, there's nothing in AI's legal blurb to say who would pay the water bill for ever more; a water bill that for farms or Cadhay could be enormous.
As we posted in Another AI quarry in Devon non-compliant with planning conditions:
And what hope is there for people who lose those supplies, if there's such disregard for timeliness and urgency? How long would it take – "in the opinion of the County Council, in consultation with the Environment Agency, on the balance of probability..." – for DCC to swing into action? How long would it take – "in the opinion of the County Council, in consultation with the Environment Agency..." – for AI to restore alternative supplies, temporary or permanent? How long would people be without water? Days? Weeks? Months? If AI were to be found guilty – "on the balance of probability" – the company promises action "forthwith". But does that mean 2 weeks, 2 months or, as above, 2 years? Does than mean before or after the consultants and lawyers have had their say? What's that promise worth without a number? What's that promise worth with such failings and lack of urgency elsewhere in the county?
But it’s not just us who have raised concerns. In December, a letter was sent to DCC by solicitors acting on behalf of Cadhay. This letter has now apparently been forwarded to AI. With regard to AI’s paragraph 2.8.1 above, with our emphasis:
At paragraph 2.8.1(i), draft wording has been proposed setting out the circumstances under which the applicant would be required to provide alternative water supplies and/or compensate for the disruption. With respect to the lawyer who (presumably) drafted this provision, it is so full of caveats, provisos, legal tests, consultation requirements and optionality as to be unfit for purpose.
The main issue, which the draft provision fails to recognise, is that any interruption to the supplies will have an immediate effect on Cadhay, as those supplies are needed for the hospitality and wedding businesses operating at the property. In contrast to this immediate need for water, the applicant has proposed a tortuous legal mechanism for establishing causation, liability and remedy, none of which will actually deal with the immediacy of the problem. In short, whilst the parties to the s106 agreement [an agreement to which Cadhay would not be a party] argue about the operation of this provision, Cadhay’s business could fail.
This concern is further reinforced by the fact that the mediaeval fishponds, which are listed in their own right and strategic to the setting of Cadhay, rely on water from Straitgate. If the ponds were reduced to a muddy mess due to the development impacting the supplies, the ponds would cease to be the selling point that they currently enjoy (due to their photogenic qualities) and instead become an eyesore, turning away both customers and open day visitors. Taken together, the impact on my client’s business would be significant, leading not only to a serious risk to his business but also a genuine risk that the upkeep of the outstanding Grade I listed building would be compromised.
Perhaps most importantly, the proposals at 2.8.1 do not give details on any of the following fundamental points:
* where are the alternative water supplies;* how reliable are those supplies;* what is the quality of the water from those supplies;* how quickly can sufficient supplies be made available; and* what rights does the applicant have to secure those supplies?
As above, the applicant is underplaying the significant damage that would be caused by any interruption to Cadhay’s water supplies, and the consequential need to have robust and detailed arrangements in place to ensure that supplies are maintained at all times. The applicant’s proposed planning obligations fail at every level in relation to matters of detail, and Cadhay cannot accept such a situation.
As the Council will be aware, as a matter of law the ES is required to properly set out the mitigation measures proposed to address any significant adverse impacts likely to be caused by the development, following which the local planning authority can then assess those mitigation measures. In other words, if there’s a problem which might be caused by the development, the LPA must know how that problem will be mitigated, and then assess such mitigation.
In relation to the security of water supplies, the applicant has not provided any details of the proposed mitigation measures in the event that the supplies are disrupted: the proposed planning obligations are bereft of any such details. Without having details of the proposed mitigation, the Council cannot properly assess the environmental impact of the scheme.
Of course, this doesn't only affect Cadhay; there are other people miles away from an alternative mains supply. AI needs to come clean on exactly how it would replace water supplies in the event of a failure.
And mining companies are not unfamiliar with failure. Ask people in Brazil; ask people in Mozambique; ask people in Northumbria left without water for four years after quarry operators were allegedly working below the water table; ask a small rural community on the outskirts of Edinburgh left without clean drinking water for weeks by Tarmac:
"We are being bullied and ignored by a big PLC business that controls one of our basic rights – to have fresh water. Without water, normal life quickly grinds to a halt."
Wouldn’t a Section 106 planning agreement sort things out? Well, even if appropriate assurances could be drafted, it’s not even clear who would be covered – Cadhay, supposedly protected by the EA’s SPZ, certainly wasn’t covered in AI’s original application; AI has so far refrained from identifying specific properties, saying only "private water supplies (as indicated on plan to be agreed with Devon County Council, in consultation with the Environment Agency)".
We’ve also posted about AI breaking S106 water monitoring agreements. We’ve posted about AI operating asphalt plants without planning permission. We’ve posted about AI running bagging operations without planning permission. We've also asked What’s the chance that AI would stop digging when it gets to the water table?
So, if there are recent examples locally where AI has had problems adhering to a Section 106, should we instead draw comfort from assurances the company has made in its Environmental Statement? As referred to by Cadhay’s lawyers, and as we have previously posted:
(3) An environmental statement is a statement which includes at least —(c) a description of any features of the proposed development, or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;
Again, as Cadhay’s lawyers point out, AI has not provided any details of proposed mitigation measures. Despite AI's consultants unsurprisingly claiming "there is not expected to be any direct impact on any groundwater dependent features" 6.2.1, we have already posted about Environmental Impact Assessments: Are they worth the paper they’re written on? how:
In practice, the [Environmental Statement] is often a sales document for the applicant and there have been increasing calls for an independent commission of EIAs to take them out of the hands of those with a vested interest in seeing schemes approved.
The quality of ES can be surprisingly poor, with developers often keen to do the least possible to get the application through, so it is vital local people go on asking critical questions of the applicant and local authority planners.
A paper titled: Myth and Momentum: A Critique of Environmental Impact Assessments complains:
EIAs are now often contracted to the lowest bidder, with a focus often more on achieving mandated deadlines, rather than on product quality. In some cases, more expertise and resources may be put into winning a contract than completing it, with the important scientific work being done cheaply by newly graduated bachelor’s degree holders or inexperienced interns.
In that same post, we pointed out that AI’s EIA has been riddled with fiction; that consultants Amec Foster Wheeler (now Wood) have produced an assortment of hydrological predictions which have already failed – again and again and again; that Amec refused to provide information on tolerances; that some of Amec’s reports had even been whitewashed.
Why are local people so concerned? Well, in the Devon Minerals Plan DCC put a line through the 1m to protect drinking water supplies, and AI plans to dig all the way down to the water table - without leaving the typical 1m unquarried safeguard, whilst other quarries – here and here for example – are approved with a 2m safeguard above maximum groundwater levels.
So, once AI submits its next batch of documents to DCC in answer to questions – and who knows when that will be (an inexplicable 18 months has passed since those seemingly difficult questions were raised) – local people should respond to DCC's planners and ask them to detail exactly how AI would provide alternative drinking water supplies in the event of supplies becoming lost or polluted – particularly to those who are miles away from any mains supply.
According to the people in Northumbria, laying three miles of pipework costs some £500,000.
