Since 1 September 2017 – when the Environment Agency first laid out the conditions it thought necessary if Aggregate Industries were to be permitted to quarry Straitgate Farm – much has come to light.
Not of course from Aggregate Industries’ own documents supporting the planning application – a planning application dogged by delays – but from the effort of others, including an eminent Professor of Hydrogeology who has repeatedly stressed his concerns about the company’s plans:
The proposal to quarry the Straitgate Farm area to the MWWT will impact on the Straitgate and Cadhay Springs and cause a significant deterioration in the water quality.
To reflect some of what’s come to light, the EA has now sent renewed guidance to Devon County Council, which "consolidates and revises our requirements for conditions and obligations."
If you compare the EA’s original letter from 2017 with the one from last week, you will see what changes have been made. These are all in line with matters already discussed on this blog. There are no surprises. However, some might sense that the EA’s tone has hardened:
In 2017, the EA’s position was "...we consider that the proposal will be acceptable but only if the subsequent permission includes appropriate worded conditions. In particular we recommend that permission includes conditions to achieve the following..."
In 2020, the EA’s position is now: "...we consider this proposal can only be acceptable if subsequent permission includes conditions and obligations to protect the water environment… we advise that the following must be secured on any planning permission..."
Our emphasis. Read into that what you will, perhaps nothing at all, but there are some very significant hurdles that Aggregate Industries will now have to overcome, not least concerning condition 6:
6. Although impacts to private water supplies and stream flows are considered unlikely, the applicant shall submit draft text for a Section 106 agreement to Devon County Council. This shall include Cadhay House Spring, Cadhay House mediaeval fishponds, Cadhay Bog and Cadhay Wood Stream. This should be based upon the principles described in section 2.8 of the July 2017 Regulation 22 responses report. Additionally, in the case where a period of investigation is required into adverse impact to a private water supply, the agreement shall provide for a temporary water supply during the period of investigation. The Section 106 agreement shall include a monitoring management and mitigation strategy. This strategy shall include an outline of possible mitigation measures which could be put into place in different circumstances. In its water quality provisions, the S106 agreement shall include pH.
As a reminder, "Section 2.8 of the July 2017 Regulation 22 responses report", was the part where DCC asked Aggregate Industries:
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.Ongoing monitoring of flows/levels/water quality and water usage should be carried out by AI from now until the end of quarrying. This would establish a baseline against which to compare any changes in supply.Also, information should be provided on the provision of alternative water supplies to mitigate any unforeseen adverse effects of the quarrying operation on the hydrology of the downstream County Wildlife Sites at Cadhay Wood and Cadhay Bog.
No "full detail" was, or has since been, forthcoming on how alternatives supplies could be provided, or how adverse impacts could be remedied. As for establishing a baseline, "from now [2017] until the end of quarrying", there are still properties that have had no monitoring, not least Cadhay. Derogation cannot be determined without a long-term baseline.
So, those concerned will no doubt be waiting with bated breath to see how condition 6 can be satisfactorily addressed.
It will be interesting to learn how long private water users might have to endure "a temporary water supply during the period of investigation" – months? years? – whilst it’s determined whether derogation 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".
It will be interesting to learn how an immediate and sufficient adequate water supply would be provided to properties and businesses miles away from the mains.
It will be interesting to learn how water quality and stream flows to mediaeval fishponds and ancient woodland would be maintained in the event of problems or mishap. It will be interesting to learn how pollution events would cleared up.
It will be interesting to learn whether any of that is possible.
All of this comes after a planning lawyer wrote to the EA last month, complaining:
The duties on the EA are to consider the application and provide advice and reasons for that advice which are commensurate with the issues raised. The statutory duty of DCC is to engage with your consultation response and consider the issues identified. Neither of these has happened in this case. Professor Brassington's detailed letter and conclusions have not been addressed or, if they have, there is no evidence of how they have been addressed, nor how such consideration has led to the conclusion set out in the position statement.
My client does not want to engage lawyers to argue its case but is adamant that it expects full consideration of the fundamental and legitimate issues raised by Professor Brassington before any decision is made by DCC on the application. Otherwise, in line with the detailed caselaw on this point, the decision by DCC will be legally flawed.
On this front, there continues to be a deafening silence from the EA – and therefore, according to the planning lawyer above, the EA’s statement is 'insufficient to enable DCC to determine the Straitgate application lawfully'. There is no attempt to explain why the Agency’s views diverge from Prof Brassington, holder of the Whitaker Medal "in recognition of an outstanding contribution to hydrogeology." There is no attempt to explain why quarrying down to the maximum water table – or an unreliable estimation of it – would be satisfactory for Straitgate Farm – with its gamut of sensitive water receptors – when 2m freeboards, or more, are routinely deployed elsewhere. There is no attempt to argue why the groundwater chemistry won’t be fundamentally altered, or why increased run-off wouldn’t cause reduced spring flow.
If the EA has genuine disagreements with Prof Brassington then it should come out and explain why, so that its views can be scrutinised like everybody else’s. It shouldn’t hide its light under a bushel; it should join the conversation!
