Lower Hare Farm, Whitestone: Judicial Review – Pre-commencement Conditions

Before any soil can be removed at Straitgate Farm by Aggregate Industries in relation to its permission to quarry the site, a number of pre-commencement conditions must first be discharged by the company and approved by Devon County Council.

Anyone interested in that process might want to note Item 7 of Devon County Council's Development Management Committee agenda for Wednesday, 23rd October, 2024, concerning a short report produced by the Council relating to the approval of two controversial planning applications (DCC/4101/2018, DCC/4293/2022) for a waste disposal site at Lower Hare Farm, Whitestone, EX4 2HW, and the judicial reviews that followed, filed by Whitestone Parish Council in connection with the discharge of pre-commencement conditions. 

In the Whitestone Parish Council minutes, (more details here, here, and here), it was claimed: 

The DCC seem to have entered wholeheartedly into the spirit of the NPPF and determined that “7 phases” has the same meaning as “3 phases”, that working from West to East is exactly the same as working from North to South, that “inert soils” are exactly the same as “engineering fill” also known as quarrying, mining, demolition and construction waste, that a gradient of “1 in 5” is exactly the same as a gradient of “1 in 10”, etc, etc. 

The Parish Council submitted a judicial review claiming the decision to discharge certain pre-commencement conditions was unlawful on a number of grounds, including: 

the decision to grant approval to carry out further development not authorised in the original permission by way of discharge of condition was ultra vires; 

and:

the Council erred in law by asking whether submitted details were ‘acceptable’ rather than considering whether the submitted details met the requirements of the conditions;

Devon County Council conceded on both of those grounds, and says in the report: 

4.4 In the light of this claim for judicial review, the following steps have been implemented within the Council’s Planning team: 

 • training has been provided to the County Council’s planning officers on procedural requirements for the discharging of planning conditions; and 

 • the relevant officer’s report template has been amended to require clearer consideration of the requirements of the EIA Regulations and the need to consider whether the submitted details meet the requirements of the condition.

The full report can be found below:

 

EDIT 29.1.25 Permit 'likely' for new countryside landfill site

Judge quashes inspector’s green belt quarry refusal over biodiversity net gain ‘error’

Last year, campaigners at Stop Lea Castle Farm Quarry action group suffered a setback in their efforts to stop a controversial quarry plan. 

In 2022, Worcestershire County Council had refused permission for NRS Aggregates to quarry 3 million tonnes of sand and gravel over a period of about 10 years at Lea Castle Farm, near Kidderminster. In 2023, the company appealed the decision. Following an 8-day public inquiry, the inspector rejected the company's appeal concluding the scheme would "not preserve the openness of the green belt". The company applied for a judicial review of the inspector's decision NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2795 (Admin). In November, the judge found in favour of the minerals company, saying that the inspector had "erred in law" by referring to future legislation on biodiversity net gain. The inspector's decision was quashed. 

You have to feel for the campaigners, who will now face another Public Inquiry. In February, the Planning Inspectorate wrote: 

Following a High Court challenge to our Inspector’s decision on this appeal dated 5th May 2023, the Court has ordered that the appeal be re-determined. This does not necessarily mean that the Inspector will reach a different overall decision.

Fighting mineral applications is not for the faint-hearted.

Judge quashes inspector’s green belt quarry refusal over biodiversity net gain 'error'https://t.co/N6pbOmHAVD pic.twitter.com/nzKawLcbtK

— Planning Magazine (@PlanningMag) November 20, 2023

EDIT 3.3.25 

Lea Castle Farm Quarry plan 'has finally failed,' campaigners say 

Inspector's Report

Can anything be done now?

That was the very question Ottery Town Council asked Devon County Council last week:

Ottery St Mary Town Council held their January meeting on Monday and have requested that I write to you to voice their extreme disappointment at the judgement from the Planning Inspectorate in relation to the Straitgate Farm Planning Appeal Inquiry.  The Council has never supported the plans for the creation of a quarry and are very concerned about the extremely negative impact the development will have on our parish.  The Council would like to ask whether there is any further action that Devon County Council can take to prevent the quarry from being built?

Devon County Council responded: 

Like the Town Council, Devon County Council is disappointed that the robust defence of the reasons for refusal put forward by its expert witnesses (together with those acting on behalf of Straitgate Action Group) has not been reflected in a favourable appeal decision. The only means for the County Council or another aggrieved party with sufficient standing to challenge the Planning Inspectorate’s decision is through judicial review of the lawfulness of the decision – this would not involve any reconsideration of the merits or otherwise of the development proposals, but would be a challenge to the way in which that decision was made on grounds of illegality, irrationality or procedural impropriety.

So what can be done? 

Now that Aggregate Industries has been granted permission to quarry Straitgate Farm, attention turns to the planning conditions and legal obligations – shown below – that have been imposed by the Government Planning Inspectors. It is only by the imposition of these conditions and obligations that the Inspectors consider the company’s application to be acceptable. 

 

Links to the the planning conditions and S106 legal obligations have been put on the side of this blog for future reference, and the What to do page has been re-written accordingly. 

Devon County Council as the Minerals Planning Authority has the unenviable responsibility for enforcing the multitude of conditions and obligations. The Council encourages members of the public to report any suspected breaches. The Council’s Monitoring and Enforcement Plan says:  

3.2.1  Local planning authorities such as DCC have a duty to investigate alleged breaches of planning control, and anyone reporting an alleged breach to the Council is entitled to expect that the matter will be investigated in a timely and professional manner and the outcome communicated to them. 

4.1.1  DCC encourages the reporting of suspected breaches of planning control by members of the public or representative bodies such as town and parish councils and County Councillors. As development can gain immunity from enforcement action over time, it is important that any suspected breaches are reported as soon as possible in order that harmful development can be removed or minimised. 

4.3.10 A significant proportion of complaints received by DCC concern existing mineral or waste sites where it is alleged that the operator is failing to comply with the approved documents or with the conditions attached to the site’s planning permissions. Common examples include working outside approved hours, failure to control levels of noise or dust, and failure to carry out necessary habitat management or restoration work. While such breaches can become apparent through the Council’s site monitoring, reports are welcomed from local residents to ensure that adverse impacts can be investigated as early as possible. 

4.1.2  The most convenient means of reporting an unauthorised development or other potential breach is through the online reporting facility on DCC’s planning website at https://www.devon.gov.uk/planning/enforcement. 

Other methods of communication available are: Email: planning@devon.gov.uk 

Post:  Development Management Planning, Transportation & Environment Devon County Council Lucombe House County Hall Exeter EX2 4QD 

Phone: 01392 383000 (ask for Planning) 

Aggregate Industries must satisfy a number of pre-commencement conditions and obligations before any mineral extraction can start. Given, for example, the company’s astonishing failure to date to reliably measure something as fundamental as the site’s rate of infiltration, condition 13, this is no small task.

DCC planning officers couldn't even get the name right

Devon County Council's planning officers have had more than six years to get things right.

The report recommending approval of Aggregate Industries' scheme to quarry Straitgate Farm starts: 

1.1 The application is for the development of a new sand and gravel quarry... at Stairgate Farm. 

The officer’s report contains a multitude of material errors, inconsistencies and misleading statements, and a list has now been sent to Devon County Council to circulate to the Planning Committee before tomorrow’s decision. 

More importantly, a Pre-Action Protocol Letter for Judicial Review has also been sent to the Council. 

In response, the Council has now issued three pages of hastily revised conditions.

The Development Management Committee meeting to decide Straitgate's fate will be held tomorrow, 1 December at 2.15pm. 

The meeting will be livestreamed – the link can be found here.

DCC’s Flood Risk Team withdraws objection – WITHOUT sight of ‘a plan indicating how exceedance flows will be safely managed’ WITHOUT knowing whether a drainage scheme is even ‘feasible’

Yes, you really did read that correctly. 

Friends of the Earth describe an Environmental Impact Assessment as:

an information gathering exercise which follows a prescribed, well established methodology carried out by the developer and which enables a local planning authority to understand the environmental effects of a development before deciding whether it should go ahead.

Without certain basic information the local planning authority is in no position to understand or to make an informed decision about whether permission should be granted. Friends of the Earth point to Judicial Reviews and say: 

Our claims will often question whether the authorities have considered all material factors. 

A plan indicating how surface water would be safely managed would plainly be a material factor and the very minimum a flood risk team should need to understand in order to make an informed decision. 

Six years ago, for Aggregate Industries’ first application to quarry Straitgate Farm, Devon County Council's Flood Risk Management Team – in its role as Lead Local Flood Authority – requested a "detailed surface water strategy": 

This should include detailed design regarding [the infiltration features'] size, details whether infiltration is permitted at the proposed locations and where targeted at areas where infiltration is required to support the spring lines of the existing watercourses (as commented by the Environment Agency), together with details of exceedance pathways. 

The reason? 

The surface water management is inextricably connected to Flood Risk Management/Airport safeguarding and the need to maintain and recharge watercourses. This issue is so important in terms of the likely significant impacts of the proposal the MPA would wish to ensure that a SWM scheme can be designed to meet all of the requirements identified in advance of the determination of this application.  

An issue "so important." A surface water management scheme "in advance of the determination." Not our words – Devon County Council’s. 

Since then, Aggregate Industries has had SIX YEARS to join the dots, SIX YEARS to produce a workable flood mitigation scheme, SIX YEARS to come up with a detailed design. The company has been unable to do so. Click the flooding label for the whole sorry tale. 

Clearly, Devon County Council hopes that poor Aggregate Industries will have more success away from the eyes of public scrutiny. The LLFA – which had previously objected – now says: 

Our objection is withdrawn and we have no in-principle objections to the above planning application at this stage, assuming that the following pre-commencement planning condition is imposed on any approved permission... 

What condition? The LLFA proposes – only AFTER councillors have voted – that: 

No development hereby permitted shall commence until the following information has been submitted to and approved in writing by the Local Planning Authority: 

(b) The applicant should submit a detailed drainage design... prior to commencement of each Excavation Phase. This should also include the detailed design of the surface water management strategy proposed for the Restoration Stage as well as cross sections of the proposed basins and infiltration testing... 

(d) A plan indicating how exceedance flows will be safely managed at the site. 

(e) A plan indicating how surface water will be managed in the areas which will be stripped for storage of materials.

How on earth can councillors make an informed decision about so important an issue – particularly for downstream flood-prone communities – knowing that the Council’s Flood Risk Team has not even seen "a plan indicating how exceedance flows will be safely managed"? It beggars belief. 

The reason given for these conditions? 

The conditions should be pre-commencement since it is essential that the proposed surface water drainage system is shown to be feasible... 

Yep, you read that correctly too. As things stand, Devon Councty Council and the LLFA have no idea whether a drainage plan at Straitgate Farm is even feasible?

Policy M24: Flooding of the Devon Minerals Plan says proposals for mineral development:

...will be accompanied by a Flood Risk Assessment that must demonstrate that the proposal will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere and, where possible, will reduce flood risk overall. 

With NO PLAN for "how exceedance flows will be safely managed", and NO PLAN for "how surface water will be managed in the areas which will be stripped for storage of materials", Aggregate Industries' Flood Risk Assessment has very obviously NOT demonstrated that the proposal will be safe.

Planning committee reports ‘a fertile ground for judicial review challenges’

Earlier this year, permission for an intensive chicken farm was quashed:

 

#Powys County Council permission for intensive chicken farm quashed following crowdfunded legal challenge: https://t.co/7lKYmTJ4bs pic.twitter.com/BW4hsk4Vcr

— Planning Magazine (@PlanningMag) March 12, 2021

The case was brought by campaign group Sustainable Food Knighton (SFK), which argued that the council had not taken all environmental impacts arising from the development into account when granting permission, in particular those stemming from the need to spread manure on fields. 

The consent order said the council "accepts that there was no evidential basis for the officer's conclusion that the impacts on amenity from the proposed development would be acceptable because the fields were unlikely to be spread with manure from the proposed development more than twice per annum".

According to Local Government Association guidance, updated in 2019, planning committee reports are a "fertile ground for judicial review challenges". The LGA adds that the chance of such challenges is:

particularly so where there is a risk that the officer may have inadvertently misled the committee, therefore tainting the resulting decision

In 2018, a judge quashed planning approval for a 62-home development for that very reason:

concluding that an officers' report considered by the council's planning committee was 'materially misleading' regarding the scheme's impact on sunlight and daylight.

The judgement explained that members of the Development Committee:

may well have reached a different decision on the merits had the Officer's Reports not been misleading

Devon County Council are obviously aware of the risks. Here are two communications released through a Freedom of Information request in connection with the Straitgate application. From November 2017: 

How much are you going to be able to give me in the final highways response regarding how we have taken on board these many representations from external objectors? I'm only asking as some of the issues may have to be "seen" to have been discounted if we are to avoid JR on this one... 

"Seen"? 

In another communication about the cattle crossing issue in February 2018: 

... so the question is – what do we do to move it forward in a way that doesn’t lead us to a JR if its approved or costs if its refused?

Cumbria coal mine faces legal challenge

Environmental campaigners have this month been granted permission for a judicial review of the decision in 2019 by Cumbria County Council to allow the first deep coal mine to be built in decades. According to Local Government Lawyer:

Rowan Smith, solicitor at law firm Leigh Day, who is representing Keep Cumbrian Coal in the Hole, with Anna Dews and Carol Day from Leigh Day, said: "This legal action shines a light on how all local planning authorities should assess the climate change impacts of development of this nature, particularly with the backdrop of the UK Parliament declaring a climate emergency and the Government’s commitment to ensuring that the Net Zero target is reached by 2050."

I spoke to the campaigners in Cumbria who have raised more than £9,000 to cover the cost of legal fees in their fight to stop the new coal mine.

Story: https://t.co/VuOZ0iL0Yd

— Rebecca Henrys (@RebeccaHenrys) December 12, 2019

‘Mineral Planning - Current threats’

For any reader enthused by the exciting world of mineral planning - here’s the industry’s perspective:

Judicial Review is obviously seen as a threat by both operators and councils, and crops up a couple of times during the presentation.

The Mineral Products Association, in its 6th Annual Mineral Planning Survey Report 2017, also bemoans the time it takes to win planning consent, and reckons that "Typically, it takes between 5 to 15 years to convert sites from exploration into active operational sites."

If operators are anything like Aggregate Industries, we can see why. At Straitgate Farm, exploration started in the 1960s - and in 2018 the company is still asking for extensions of time.

Does Devon's new Minerals Plan stand for anything?

DCC’s newly adopted Minerals Plan was in preparation for years and years. It came up with various Policies and Objectives.

It’s already clear, with Aggregate Industries’ multi-million mile haulage plan for Straitgate Farm, how little Objective 1 ("minimising transportation by road and generation of greenhouse gases") stands for.

Now Sibelco has found, following the approval of the A382 road improvement scheme at Newton Abbot, that Objective 2 doesn’t stand for anything either.

Objective 2 is all about safeguarding mineral resources, particularly those that are scarce or of national importance. The Minerals Plan claims:

For Devon’s industrial minerals and some aggregate minerals, non-mineral development will normally be opposed where it would sterilise resources of economic value. 
3.3.14  

We’ve written about Mineral Safeguarding before, most recently here. We argued that Devon’s new Minerals Plan could blight thousands of homes across the county and Is this really the best way to 'safeguard' minerals? There’s currently a DCC consultation about it. DCC says:

The Minerals Plan features the introduction of "Mineral Safeguarding Areas" which aim to secure valuable mineral resources from sterilisation by new development, to ensure that they remain available for use by future generations.

But where was Mineral Safeguarding when Sibelco needed it? Sibelco was concerned that the A382 improvements would sterilise significant reserves of "nationally scarce" ball clay and objected to the scheme. Sibelco's concerns were ignored, and following DCC's decision the company has lodged a Judicial Review. Here is the DevonLive article, and an excerpt from it:

A Sibleco spokesman said: “Sibelco has taken this course of action primarily in the interests of the UK’s strategic minerals reserves.

“Devon County Council, in common with other authorities across the country, is legally obliged to identify deposits and outline how they will be managed within a published and regularly reviewed Minerals Plan.

“In some areas deposits are safeguarded by formal consultation zones. One example is Newton Abbot and the Bovey Basin with the recognised economic importance of its ball clay reserves. The area relevant to the A382 programme is identified it as lying within the Mineral Safeguarding Area defined in the Devon Minerals Plan.

“Additionally, the Officer’s Report failed to include any reference to the section of the National Planning Policy Framework which advises that ‘great weight’ should be given to minerals extraction and that permission should not ‘normally’ be granted for non-mineral development where that would sterilise reserves.

“Given that significant reserves of ball clay will be affected by the A382 programme we argue that members did not have the relevant information that would have allowed an informed decision.

“Should similar mistakes or omissions be made again in Devon, or worryingly anywhere else in the UK, the implications for our strategic minerals reserves are grave. We will continue to press for dialogue to resolve the outstanding issues and see if a resolution can be reached.”

A Devon County Council spokesman said: “Following the grant of planning permission for the A382 scheme, Sibelco lodged an application for a judicial review of that decision. Currently the parties have agreed a three month stay to those proceedings.”

SSSI - a denial of AI's Human Rights?

If Aggregate Industries was denied permission to continue operating on Woodbury Common due to SSSI (Site of Special Scientific Interest) and other designations, would it again complain, as it did at the High Court in 2002 - R (on the application of Aggregate Industries UK Ltd) v English Nature, that it was a "breach of section 6(1) of the Human Rights Act"? 

In February 2000, shortly after AI was notified that new European nature conservation designations would restrict quarrying at Blackhill on Woodbury Common, the company purchased almost 700 acres of land in Hampshire, only to see it then designated a SSSI by English Nature in July 2001, to safeguard the habitat of rare birds - the Nightjar, Woodlark and Dartford Warbler.

AI sought a Judicial Review of English Nature's decision, claiming the land had been deprived of its development potential, but this was rejected on the grounds that the site is "rightly regarded as an area of European importance".

Woodbury Common, the largest continuous expanse of heathland in England, is also recognised to be of European importance - Special Area of Conservation, Special Protection Area (SAC, SPA) - with populations of Nightjar, Woodlark, Dartford Warbler, and other legally protected species.

Yet having first been served notice in 1999, AI is still there, now with permission to process sand and gravel until 2016. How did DCC let that happen? Firstly in 2002 AI persuaded DCC to allow it to quarry a site adjacent to the SAC/SPA at Thorn Tree Plantation. Then in 2008 AI persuaded DCC to allow it to process material at Blackhill from Marshbroadmoor, Rockbeare. Then in 2011 AI persuaded DCC to allow it to process material there from Venn Ottery.

And now AI wants to persuade DCC again, this time to allow it to continue beyond 2016 to process material there from Straitgate. Until when? 2026? Longer? Hauling millions of tonnes past peoples' homes and across the East Devon Pebblebed Heaths - SAC, SPA, SSSI, AONB?

Is Woodbury Common the right place for a sand and gravel "factory" processing material from further afield? Blackhill's processing plant was only ever intended to process material extracted from the site, and that finished in 2009. At some point AI will have to expense a move. In 2003 it was intending to move to Rockbeare. By 2008 plans had changed and the intention was to move to Houndaller at Uffculme. Those plans were then put on hold. Desperate times may call for desperate measures - but a round trip of 15 miles, transporting each load of as-dug sand and gravel from Straitgate for 10 years or more? 100 movements or more a day? The profitable supply radius reduced by half. What can AI be thinking?

So never mind AI's "Human Rights". What about the rights of those - be they birds or people - who make this area their home, not just a profit centre?