Local private water users are understandably unhappy about Aggregate Industries’ threadbare legal obligation – the company’s Section 106 Unilateral Undertaking, or, as many have called it, ultimatum.
This legal document, approved by the Planning Inspectors following the Public Inquiry last October, details what Aggregate Industries is obligated to do in the event that any private water supply in the surrounding area is harmed as a result of the company digging into the aquifer at Straitgate Farm.
Various concerns have been raised with Devon County Council as the Mineral Planning Authority. Many of these concerns, and other ones too, were raised by SAG at the Inquiry. Aggregate Industries' legal representatives dismissed them out of hand – as shown here (with our legal team’s annotated responses) – claiming the UU "fully addresses even the fanciful scenarios that the [SAG] Note proposes":
the Appellant notes that no Private Water Supplies Interest has raised any concerns with the terms of the licence, including the Rule 6 Party. The terms of the Offer Letter, including the licence have also been agreed with the Council. There is therefore no evidence of any issue with the licence in any event.
This is plainly not true. Cadhay had been raising concerns for years. These concerns were again raised at the Inquiry by SAG as the Rule 6 party. If other private water users had not raised concerns, it was because Aggregate Industries had not talked to them to find out their specific needs.
The Planning Inspectors accepted that:
52. The measures provided in the UU to mitigate loss of flow or water quality have been subject to criticism both by the MPA and by SAG.
but nevertheless decided:
55. The UU is provided as a precautionary measure in respect of water supplies and is only necessary on this basis. We find that the UU would be an effective mechanism to provide alternative water supplies.
In response to the concerns since raised by local people, Devon County Council, who is not a signatory to the agreement, said:
We have referred your concerns and those of others to the County Council’s legal department and it is their view that we cannot offer legal advice to third parties on this matter and that you would need to take your own legal advice to decide how to proceed.
Clearly, local people are now on their own in the event of any dispute if their water supplies become harmed – up against the deep pockets of a global cement giant.
The barrister representing SAG, said in his closing statement:
The Appellant has given little attention to the practical details of the mitigation necessary to protect the 120 people, businesses, three farms and the Cadhay House Estate who rely on private water supplies. It is absolutely no excuse to say that private water supplies might be harmed in a number of different ways. The multiple types of problem which might occur underscore the need for proper solutions to be worked up. In that regard it is important to bear in mind the inequality of arms between the Appellant and the many individuals whose private water supplies the development plan requires to be protected.
What Devon County Council does have some say over going forward is Water Protection and Monitoring, as detailed in Condition 27:
Prior to the commencement of development, a water supply monitoring scheme shall be submitted to and approved in writing by the Mineral Planning Authority. The scheme shall secure the ongoing monitoring, management and maintenance of water supplies and shall specify:(a) the monitoring arrangements (including monitoring of pH levels) for private water supplies;(b) the monitoring arrangements (including monitoring of pH levels) for stream flows at private water supplies;(c) the frequency of monitoring at the private water supplies which for the avoidance of doubt shall be a minimum of once per month for the lifetime of the planning permission;(d) the continuation of the surface water and groundwater monitoring points including a requirement to maintain a piezometer at each corner of each working sub-phase of the development and to replace any piezometers that become lost through quarry working;(e) the maintenance arrangements for the piezometers at the private water supplies;(f) the form and content of the annual monitoring report which is to be provided to the Mineral Planning Authority in respect of the private water supplies.The development shall be implemented in accordance with the approved monitoring scheme.
It is understandable how all this, which for many will be the first formal communication from Aggregate Industries, must all have come as a nasty shock for private water users. No friendly introductions. No apologies for its plans to dig up the neighbourhood and cause untold aggravation. Just a legal ultimatum that will leave a large number of people with 20 or more years of worry and uncertainty.
Is it any wonder mineral planning applications attract so much opposition?
