When the planning application to quarry Straitgate Farm is determined, it will be accompanied by a raft of proposed conditions – conditions that, in the case of flood risk, would attempt to sort out after determination what Aggregate Industries and Devon County Council have failed to resolve over the past 6 years before determination, conditions that would negate any further public scrutiny.
As previously posted, the Council's Flood Risk Team, in its role as Lead Local Flood Authority, has withdrawn its objection to Aggregate Industries’ proposal on the proviso that a pre-commencement planning condition (sometimes referred to as a 'Grampian' condition) is imposed – a condition that would amongst other things include procuring a design for how surface water would be managed on the restored site i.e. in perpetuity.
What is clear is that the LLFA does not know whether a scheme to control flooding – whilst maintaining stream flows, whilst maintaining groundwater recharge for drinking water supplies, whilst avoiding the creation of permanent bodies of water and an airport safeguarding hazard – would even be feasible:
The conditions should be pre-commencement since it is essential that the proposed surface water drainage system is shown to be feasible
Nevertheless, the LLFA has clearly decided that it wants no further public involvement in the matter, and that the significant, thorny and as yet unresolvable issue of flood risk management should be sorted out behind closed doors at some future date.
However, reliance by the Local Planning Authority on the LLFA’s recommendation would not only be reckless, considering the number of problems local people have already highlighted, but according to legal advice would also be unlawful.
Let’s look behind that advice.
Aggregate Industries’ planning application has been the subject of Environmental Impact Assessment. According to government planning guidance:
The aim of Environmental Impact Assessment is to protect the environment by ensuring that a local planning authority when deciding whether to grant planning permission for a project, which is likely to have significant effects on the environment, does so in the full knowledge of the likely significant effects, and takes this into account in the decision making process... The aim of Environmental Impact Assessment is also to ensure that the public are given early and effective opportunities to participate in the decision making procedures. Paragraph: 002 Reference ID: 4-002-20140306
Why is that important? The EIA contains the applicant's own assessment of the environmental impact of the proposal, which may be – and definitely has been in Aggregate Industries’ case – inaccurate, inadequate or incomplete. According to R (Blewett) v Derbyshire CC [2004] the EIA regulations:
...recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible.
If the LPA considers that further information is required, planning guidance says:
...they must ask the applicant, in writing, to provide it (regulation 25). All information provided must be publicised, and consulted on. Paragraph: 047 Reference ID: 4-047-20170728
The legal advice we have received points to the recent case of R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] which itself draws on other cases. Here are three paragraphs from that case:
...the underlying purpose of the Regulations in implementing the [EIA] Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures... 70
...it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects? 70
...It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. 78
Of course, it’s not just the public that should be "engaged in the process of assessing the efficacy of any mitigation measures." Such a condition also deprives councillors on the planning committee of the opportunity to assess mitigation measures. In R (Jones) v Mansfield District Council [2003]:
The purpose of the Regulations was to allow an opportunity to debate the environmental impact of a proposal so that full account of both the impact and the proposed mitigation could be taken into account in the eventual decision.
It’s common sense. The LLFA’s condition plainly indicates the Council is without significant information to enable it to make an informed decision about surface water management. In R (Jones) v Mansfield District Council [2003]:
Without the results of the surveys, they were not in a position to know whether they had the full environmental information.
In the case of Aggregate Industries’ proposal, for example, the LLFA has conditioned that "Soakaway testing must be undertaken... in accordance with BRE 365." Aggregate Industries has already had a go at soakaway tests. What happened? The results were inconclusive, several tests "were not undertaken due to slow infiltration rates." For each one of the six test pits:
TP1 Unable to calculate infiltration rateTP2 Unable to calculate infiltration rateTP3 Unable to calculate infiltration rateTP4 Unable to calculate infiltration rateTP5 Unable to calculate infiltration rateTP6 Unable to calculate infiltration rate
Aggregate Industries' document admits:
The soakaway tests did not allow an infiltration rate to be determined using the BRE approach...
But there’s another reason why the Council cannot leave something as significant as flood mitigation to be resolved by condition, post determination. A planning application can either be allowed, allowed with conditions or dismissed. There is no power to modify an application other than by condition, but the Planning Inspectors’ Handbook makes clear that:
...care should be taken that a condition does not substantially alter the nature of the development applied for. In the case of Wheatcroft v SSE [1982] JPL p37 the judge formulated a test to define what a "substantial alteration" is. If the change is such that third parties would be likely to want to comment on it then the condition should not be imposed, as to do so would deprive those people of the opportunity for comment.
Clearly, if the LLFA has no idea whether a surface water management scheme is even feasible, then the proposed condition could obviously throw up a requirement for significant alterations. Since a quarry at Straitgate Farm would permanently alter the landscape, and thereby surface water drainage characteristics, stakeholders should of course be entitled to comment on alterations – particularly if such alterations had the capacity to impact third party land beyond the site for evermore.
Why would Devon County Council think otherwise, other than to stitch the whole thing up?
