Picture the scene. People living around an East Devon farm have enjoyed uninterrupted spring water for generations. Then along comes a hungry aggregates business, digging down to goodness knows what depth, causing goodness knows what problems to drinking water supplies.
Think it couldn’t happen? An eminent hydrogeologist has warned such a scheme would cause ‘irreversibly damage’ to water sources.
Devon County Council and Aggregate Industries have a plan, a Section 106 – a legal safeguard should such problems arise.
By including a Draft Heads of Terms S106 with the planning application to quarry Straitgate Farm, Devon County Council, the Environment Agency and Aggregate Industries clearly accept the possibility of harm to water supplies to more than 100 people, to livestock farms, to a Grade I listed tudor manor house with mediaeval fishponds, to wetland habitats in ancient woodlands.
It is therefore crucial – given what is at stake, and for the wellbeing of all those people and businesses – that the S106 wording is fit for purpose. Is it? Be the judge.
How much effort would the company expend in putting things right? The company says it would use "reasonable endeavours":
In all cases AIUK shall use all reasonable endeavours to ensure where required arrangements (whether temporary or permanent) shall be put in place for alternative supplies within 24 hours of being notified by the MPA or the Environment Agency or an interested Third Party.
A "reasonable endeavours" obligation is the least onerous type of endeavours clause. Crucially, the obligor is not normally required to sacrifice its own commercial interests and may be entitled to consider the impact on their own profitability…
Amazing. Not being prepared to pull out all the stops for people who have lost their drinking water is disappointing, to say the least. What happens elsewhere? The S106 for Aggregate Industries' Greystone Quarry in Cornwall is phrased rather more generously:
In the event that there is interference or contamination with any of the private water supplies... then [Aggregate Industries et al.] shall forthwith at its own expense, as soon as reasonably practicable, and in any event within 24 hours, make temporary or permanent arrangements for the provision of alternative or additional water supply to the users of the private water supplies...
But what if Aggregate Industries, with its massive water-disturbing-hole-in-the-ground, should say "Not our problem, guv"? Then what?
If AIUK shall dispute that such contamination interference or inability to draw a satisfactory water supply is partly or wholly attributable to the winning and working of minerals within the subject land and the question is referred to arbitration…
Arbitration?
Any dispute between the parties on any matter arising under this agreement shall be referred to an Arbitrator for arbitration in accordance with the Arbitration Act 1996...
That would certainly be a nice job for a pack of lawyers and experts, and would take goodness knows how long. Years? Aggregate Industries is unlikely to take things lying down.
But what about how? Consider a livestock farm and all its fields, how would that be provided for? How would alternative water supplies be provided to a Grade I listed house and its mediaeval fishponds, or to wetland habitats in ancient woodlands? How would alternative supplies be deployed in a rapid manner, given many of these are miles from a mains supply?
Without knowing how, the Council is unable to properly assess this little scheme. According to a top planning lawyer:
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.
So, in all the time Aggregate Industries has had to prepare for its planning application, we are still not told how. How can we be sure the company knows how? What happens elsewhere? The S106 for Greystone does talk about some of the hows:
4.8 In the event of a decline in yield as indicated, AIUK would take responsibility for the "immediate provision of a temporary water supply" (e.g. water bowser). This would be kept in place until a long-term solution could be provided, as follows:4.9...4.10...4.11...
And what about usage charges? Who would pay these if connection to the mains were possible? Nothing is included in the S106 about that, despite this email from Devon County Council to Aggregate Industries’ consultants back in 2015:
Please also note that those on private water supplies may not wish to be connected to the mains and may wish for a more natural supply from a new borehole or well. Additionally, the provision of a 30 year mains water supply may not be considered acceptable to those who currently enjoy free water. If a natural free source is lost then the responsibility for its replacement should be taken on in perpetuity.
What happens elsewhere? Let's look at that Greystone S106 again:
The fallback position would be the provision of mains water. AIUK would cover the costs for mains water connection and usage at any property where the water supply is affected by the quarry development.
So why is Straitgate different? Are there too many people dependent on water from the site?
What is Devon County Council's input in all this? Has it had any say? It looks like it has, according to this email to Aggregate Industries, released through an FOI, from March 2019:
My next job is to send over some commentary on the draft s.106 HoT – I have been looking at the Greystone s.106 which also has some interesting points.
So it’s disappointing we’ve ended up where we are, particularly given that Devon County Council wrote to Aggregate Industries in January 2019 suggesting:
As you are aware I am waiting for an updated heads of terms setting out properties to be monitored and you may wish to consider the points raised given your confidence that the proposed development would not impact on third party water supplies? We have had this discussion about the s.106 being generous with those concerned landowners if you are confident in your hydrogeology assessments and I would suggest that this is indeed reflected in the detail of the s.106 agreement. It would certainly help to address one of the most likely causes for concern for the determining committee. I believe that the legal agreement for the management and monitoring of water supplies needs to be complete before determination and not just a general heads of terms. The way it works is going to be a material consideration and we need the detail as I have previously indicated.
And what are we now being consulted on? An ungenerous draft general heads of terms, bereft of any detail, short of any comfort. Much of the wording is still as it was in 2018, in this Regulation 22 response,
when a top planning lawyer described it as "unfit for purpose".
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.
What does Aggregate Industries say? In an email to Devon County Council in February 2019:
The wording in 2.8.1(i) were those provided by Devon County Council and AIUK have agreed to the principle. The wording could no doubt be improved but this is something perhaps for DCC to address. AIUK will require all the caveats, provisos, legal tests etc in order to protect our interests and to ensure we only need to respond, in the unlikely event, to problems we have caused.
Which tells you everything you need to know.
How would the whole thing be policed? How frequently would the maximum water table be reviewed?
The annual report would be provided to the MPA and the Environment Agency for each year of the life of the permission by the 28th February the following year.
Once a year, for a company with a record of non-compliance with previous Section 106 agreements concerning water? One Devon County Council monitoring report in 2018 claimed "No report on File since 2011", despite the S106 conditioning that hydrological reports were to be submitted annually. Once a year, for a site where the maximum water table keeps being exceeded. Once a year, where if the water table had been exceeded the previous spring, and diggers had continued digging below the water table, no one would be any the wiser.
How much is at stake? Quite a bit actually.
A planning lawyer has now had the chance to study the proposed S106 and concludes:
the draft heads of terms proposed by the applicant are woeful and worrying in equal measure... One does not need to be a lawyer to recognise the enormous and unacceptable scope for delay and legal argument in the above draft heads. The draft terms are littered with phrases which immediately doom the effectiveness of the maintenance provisions, such as "in the opinion of", "in consultation with", "on the balance of probability", "satisfactory supply", "necessary or appropriate", "to the extent that the same is attributable", "all reasonable endeavours". Not content with such a litany of subjective legal phraseology, there is also a draft term – the nail in the coffin - allowing recourse to arbitration (which itself is one of the slowest methods available for dispute resolution) in the event that AIUK dispute there being a problem with the water supply. In terms of ensuring a safe and continuous water supply post-permission, the draft heads are, to all intents and purposes, categorically and undeniably unfit for purpose. … The scale of the problems which will be caused to Cadhay by the proposed draft obligations is potentially devastating. By way of mitigation of these substantial risks, though, AIUK offers delay, legal wranglings, obfuscation and everything but direct and immediate action.
