A fantastic result for Ottery St Mary

Aggregate Industries’ planning application to quarry Straitgate Farm was yesterday refused by the Development Management Committee at Devon County Council. 

A recording of the proceedings can be found here, and the minutes here.

The proposal for refusal was put forward on the grounds of: 

a) the great weight afforded by the NPPF to the protection of heritage assets irrespective of the degree of harm, 

b) the unacceptable impact on human health relating to private water supplies, 

c) the unresolved road safety issues relating to the cattle crossing and children’s bus stop, 

d) the lack of evidence of protected species due to failure to provide up-to-date surveys, 

e) the lack of a surface water management plan, still not produced after all this time,

f) the loss of mature trees and 1.5km of important hedges,

and the impact on climate change. 

The proposal for refusal was carried by 5 votes to 0, with 3 abstentions. 

Following this, the recommendation for the in-tandem application for haulage 23 miles to Hillhead was rapidly re-written, from a recommendation of approval to one of refusal on sustainability grounds. This revised recommendation was then put to a vote and passed unanimously. 

An enormous thank you to everyone involved over the years, including Cllrs Jess Bailey and Roger Giles, and Claire Wright, and to all those who have worked so hard behind the scenes. 

Special thanks as well to the professionals who have helped us along the way, particularly: 

Professor Rick Brassington 

Dr Helen Rutter 

Charlie Hopkins 

Tim Taylor – Khift Ltd 

Richard Moules – Landmark Chambers 

We can highly recommend them all. 

Yesterday was a very good day; a victory for local democracy.

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 officers recommend approval of AI’s application to quarry Straitgate Farm

In 1968, "the Minister [was] anxious to safeguard such valuable agricultural land." 

Today, however, it should come as no surprise to readers – who will have long smelt the direction of travel, long sensed the approaching stitch-up – that Devon County Council planning officers are recommending councillors approve Aggregate Industries’ controversial and flawed scheme to quarry Straitgate Farm and decimate its best and most versatile agricultural land.

The recommendation comes despite the plethora of material issues still outstanding, despite the impact to drinking water supplies, despite having no idea if a surface water management scheme is even feasible, despite the 2.5 million mile haulage scheme, despite the 23 million tonne resource of sand and gravel already sitting next door to the processing plant, 23 miles closer, despite warnings that approval at this stage would be unlawful. 

But as we said, this should come as no surprise. The writing was on the wall back in 2012, when selecting sites for inclusion in the Minerals Plan the Minerals Officer rejected nine others in a sham site appraisal exercise in favour of Straitgate, a site with a claimed 3.6 million tonnes, and the only site owned by Aggregate Industries. Even the Environment Agency recognised "some of the excluded sites may be preferable in environmental terms." 

The writing was still on the wall in 2017, when – with the recoverable resource now barely 1 million tonnes – it was made abundantly clear that Devon County Council’s job was to deliver Straitgate for the Swiss-owned multinational cement conglomerate. We posted: 

Aggregate Industries’ quest to quarry Straitgate Farm has been a long-running and sorry saga. Anyone hoping that its latest planning application would be decided on its merits – weighing up the multitude of conflicting issues – will be disappointed. 

Since 2017, there has been nothing but problems. Devon County Council has however favoured Aggregate Industries with 13 extensions of time for determination. In return, the company has been unwilling to supply information on various fundamental parts of the application, not only on the impact on the A30 and B3174 from the dairy cows that would need to cross Ottery’s main road 4x daily between replacement pasture and milking parlour, but also on the crucial issue of surface water management. The latter was, according to Devon County Council:

...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. 

This "so important" issue has now been left to resolve post determination – beyond the eyes of public scrutiny – which not only makes a mockery of the last 6 years and the process of Environmental Impact Assessment, but is, according to legal advice we have received, unlawful. Recent case law says: 

...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. 

Obviously, the planning officer’s report will now be scrutinised. As we know, planning committee reports are 'a fertile ground for judicial review challenges'. An earlier FOI request revealed that the case officer has already admitted privately that: 

some of the issues may have to be "seen" to have been discounted if we are to avoid JR on this one... 

Councillors will vote on the application at the DMC meeting on Wednesday 1 December.

Those dependent on the site for their drinking water will hope that councillors do the right thing.

DCC has ‘no real evidence’ cattle crossing won’t cause problems

Aggregate Industries’ planning application to quarry Straitgate Farm has been beset by delays over the years – in part because of the cattle crossing issue: the 150 or so dairy cows that would need to cross the B3174 up to 4x daily to access alternative pasture if quarrying were to proceed, with literally who-knows-what impact on the functioning of the main road into and out of Ottery St Mary, and on the A30.

The issue was raised more than 4 years ago. In 2017, Devon County Council wanted the company "to assess the implications of the farmer moving cattle across the B3174 as a result of the proposal". This June, East Devon District Council objected, saying Aggregate Industries' transport assessment:

...offers no detailed explanation for the conclusion that "there will not be a need to intensify livestock crossings". It also fails to explain how the applicant could prevent the farmer crossing livestock over the B3174 in the event that the mitigation measures prove unsatisfactory. In the seemingly likely event that a need arises for increased crossings of the B3174, neither the existing crossing arrangements nor the approved arrangements are considered suitable given the speed of traffic, the advance visibility and the fact that delays to traffic on this road would adversely affect a large number of businesses, schools and people in Ottery St Mary, as well as the emergency services.

What progress has been achieved in the last 4 years by the great minds at Aggregate Industries & Co? Following an FOI request, we now know. According to an email on 12 August 2021 from the case officer to Devon County Highways officers: 

AI still seem to be leaving the real impact of the quarry/cattle crossing/farm viability to us to consider with no real evidence that they won't be causing problems down the line – except their say-so.

This obviously represents a problem. The Town and Country Planning (Environmental Impact Assessment) Regulations say: 

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. Paragraph: 002 Reference ID: 4-002-20140306 

Transport Assessments should include: 

...movements across all modes of transport that would result from the development and in the vicinity of the site; [and] an assessment of the likely associated environmental impacts of transport related to the development. Paragraph: 015 Reference ID: 42-015-20140306 

Policy M22 of the Devon Minerals Plan says: 

Mineral development will be permitted where it can be demonstrated, where appropriate through a Transport Assessment or Statement, that it would not have a significant effect on: (a) road safety; or (b) the capacity and functionality of the transportation network for all users.

So, how – "with no real evidence that [AI] won’t be causing problems", not least on the functioning of the B3174 and the A30 – could Devon County Council lawfully conclude that the development would be acceptable? Answers on a postcard.

AI introduces new ‘MWWT +1m criteria’ to comfort LLFA

It would appear that Aggregate Industries has given up 1 metre of resource in its plans to quarry Straitgate Farm – according to emails sent by the company to persuade Devon County Council's Flood Risk Management Team in its capacity as Lead Local Flood Authority to withdraw its objection. 

Last month we posted 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’. 

Following an FOI request, and the release of a number of redacted emails, we can now see the reasons behind the LLFA's volte-face.  

On 19 July 2021, Aggregate Industries told the LLFA: 

The objection you have received shows a fundamental misunderstanding of our scheme, one of the reasons why we are monitoring the MWWT is to inform the depth of extraction so that a minimum of 1m unsaturated zone is maintained over the MWWT.

  

On 28 July, the LLFA confirmed their understanding: 

My query is that if the MWWT keeps getting higher (closer to the ground) will there be enough depth (the report says 1.45 m) to accommodate the required volume for infiltration? Bearing in mind no excavation within 1 m of the MWWT and the fact that in some places the BSPB is as thin as 3 m (although I’m not sure where these places are).

  

On 18 August, Aggregate Industries told the LLFA: 

Regarding depth of void excavation for runoff storage above unworked material to protect MWWT:… Effectively, the eastern downslope edge of the extraction void for phases 1 and 2 will be shifted upslope, on account of the MWWT +1m criteria limiting the ability to extract from the downslope-most edge of these phases.” 

One hour later, the LLFA wrote: 

I am happy with the response. Essentially they are shifting the void upslope to account for the MWWT and 1 m stand off to ensure there is sufficient depth/capacity for the runoff which is reassuring.

With reference to the "void", on 30 June Aggregate Industries explained: 

The void created by mineral extraction acts as the infiltration basin so there is not a single cross section as this will change as extraction progresses... 

   

On 7 September, the LLFA withdrew its objection. 

Of course, "a minimum of 1m unsaturated zone... maintained over the MWWT" is brilliant news; we have been campaigning for material to be left unquarried above the maximum water table for years. 

Given that the Updated Resource Assessment claims: 

The MWWT will ultimately form the base of the workable deposit, and any variation will impact the potential resource.

we have suggested that Devon County Council ask for the resource to be recalculated taking the new "MWWT +1m criteria" into account. 

Or is all this just another big misunderstanding?

Has Aggregate Industries misunderstood its own scheme again?

Has Aggregate Industries – either intentionally or unintentionally – misled the LLFA officer?

EA turns blind eye to AI’s BELOW the water table plans, but DCC still in no position to determine Straitgate application lawfully

Oh, how lucky Aggregate industries is to have the Environment Agency do its bidding. What, you may ask, has the company done to deserve such special hand-holding? It can’t be down to providing cogent environmental arguments, so what can it be? 

Of course, any idea that the Environment Agency might want to protect groundwater went out the window a long time ago when multiple warnings from a renowned Professor in Hydrogeology were flatly ignored. The Agency is obviously far more concerned about securing a diminished sand and gravel resource for Aggregate Industries, than it is about protecting the aquifer that supplies drinking water to so many homes and businesses. 

It will therefore come as no surprise that the Environment Agency has decided to turn a blind eye to another aspect of the planning application for Straitgate Farm that doesn’t work. 

We have posted – here and here – about the problems in the proposed soil storage areas. In these areas, Aggregate industries would need to dig down and remove topsoil and subsoils to expose the overburden layer, upon which – for like-on-like storage – other overburden soils from the rest of the site could be stored. This would be required to restore the best and most versatile agricultural land in the future. The problem? In these areas, the groundwater is very close to the surface, so close that seepages and springs occur. In other words, in these areas Aggregate Industries would need to dig BELOW the maximum water table. 

But it’s not just in the soil storage areas where this is a problem – it’s the loading area too, the central hub of any quarry. If the water table rises above the elevation of the loading area, all manner of problems could result, not just flooding. 

The implications of this have not been assessed. Aggregate Industries’ Environmental Statement is silent on the matter. Groundwater levels have not been monitored in the areas where overburden would be stored and where the loading area would operate – despite the clear evidence of elevated levels. 

Devon County Council needs to have all the necessary and relevant information to enable it to determine the application and reach a lawful decision: 

The Environmental Statement must include at least the information reasonably required to assess the likely significant environmental effects of the development listed in regulation 18(3) and comply with regulation 18(4). 

But, you ask, wasn’t the site only meant to be worked dry? Weren’t there arguments at the Minerals Plan Examination about that? Didn’t the Public Inspector get involved? Wasn’t the Environment Agency pushing for all quarrying to stop 1m above the water table? 

Yes to all the above. The Environment Agency previously said: 

Aggregate Industries have proposed to stop quarrying a metre above the water-table. We expect DCC to make this a condition of any permission that is granted. 

Devon County Council put a line through that 1m during the Examination. The Inspector commented: 

The Inspector's suggestion was intended to reflect the on-going uncertainty about what could be an acceptable way of working the site. An unsaturated zone of 1m may or may not feature in the final solution. However, it could be seen as inappropriate for Table C.4 to commit to a definite method of working when potentially acceptable alternatives have not been determined. The important points are that (a) only dry working would be acceptable… 

Only dry working would be acceptable. This is how the Minerals Plan was modified:

The Inspector's Report said: 

74. Provided that dry working takes place, as is proposed, I see no reason why water supplies would be materially affected. An acceptable solution would be determined in discussions involving the Environment Agency, as stated in Table C.4 

Provided that dry working takes place. This is what the Minerals Plan says today: 

5.4.9  Policy M12 therefore provides for the supply of sand and gravel through a Preferred Area at Straitgate Farm, near Ottery St Mary, subject to extraction being limited to dry working above the maximum water table to avoid potentially adverse impacts on private water supplies and water-sensitive habitats. 

Limited to dry working. The Environment Agency’s most recent stated position says: 

Our position remains that 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: 1. No working shall be undertaken below the ‘Maximum Winter Water Table (MWWT) grid’. 

The man on the Clapham omnibus would take that to mean no digging below the maximum water table across the proposed site as set out at the top of the Environment Agency’s letter:

EXTRACTION OF UP TO 1.5 MILLION TONNES OF AS RAISED SAND AND GRAVEL, RESTORATION TO AGRICULTURAL LAND TOGETHER WITH TEMPORARY CHANGE OF USE OF A RESIDENTIAL DWELLING TO A QUARRY OFFICE/WELFARE FACILITY STRAITGATE FARM, EXETER ROAD, OTTERY ST MARY, DEVON, EX11 1LG 

The proposal is not limited to the extraction area. No quarry ever is. The size of the proposal, the size of the red line boundary, is helpfully defined by Aggregate Industries:

The application site covers an area extending to some 42.5ha, with mineral extraction proposed to take place within 22.6ha with the remainder of the site occupied by temporary soil storage bunds, mitigation planting and site management and access areas 

The proposal requires the storage of soils and the construction of a loading area and haul road. Overburden storage and loading areas alone amount to some 7 hectares. 

We wrote to Environment Agency with our concerns about the water levels in the overburden storage areas. The Agency said the matter "will be taken into consideration". However, the very same day, the Environment Agency reiterated its ‘no objection’ position provided "subsequent permission includes several robust conditions to ensure the protection of groundwater resources and quality." There was no mention of the soil storage areas, so we wrote to the Environment Agency again: 

It is clear that Aggregate Industries would have to dig beneath the maximum water table in large areas beyond the proposed excavation boundary in order to accommodate like-on-like storage of overburden. 

The EA’s approach to protecting groundwater is outlined in its position statement: 

"Where the potential consequences of a development or activity are serious or irreversible the Environment Agency will adopt the precautionary principle to manage and protect groundwater. The Environment Agency will also apply this principle in the absence of adequate information with which to conduct an assessment." 

Do you not agree – particularly given the absence of groundwater monitoring in the proposed soil storage locations – that there has not been "adequate information with which to conduct an assessment"? 

Whilst the Environment Agency did not deny the problem, it did not agree either. This week it wrote:

Our recommended conditions concerning the Maximum Winter Water Table (MWWT) are intended to apply to the quarry working area only, not the soil/overburden storage area and the Planning Officer is aware of the intention of the recommended conditions. 

Quarry working area only? That will be news to most people. No geographic limit is defined in the condition. Groundwater needs protecting whether it is inside or outside the extraction area. 

Let's repeat the Minerals Plan again, this time from the Table C.4 referenced above: 

The development of this site will only involve dry working, above the maximum winter (wet) level of groundwater. 

Development of this site. If there was any intention by the Environment Agency to restrict the condition to just the working area, it has only been arrived at since the elevated groundwater levels in the soil storage areas were highlighted. 

Devon County Council and the Environment Agency need to send Aggregate Industries back to do more extensive groundwater monitoring. Without such information, the Council is in no position to determine the application lawfully.

AI’s proposal would PERMANENTLY alter the landscape – so why has the flood risk assessment only assumed a 10-12 year lifespan and 10% climate change uplift?

Aggregate Industries’ Flood Risk Assessment says: 

The development lifespan will be 10 to 12 years, so it is proposed that an allowance for a 10% increase in extreme rainfall is considered, according to NPPF guidance on climate change which states that an allowance of 10% is made for development with a lifetime extending to 2039 respectively;  

The change to the landform would not, however, be for just 10 to 12 years – it would be FOREVER. 

In our response in 2017, we wrote: 

114. The applicant has used an uplift of +10% in its runoff calculations to reflect climate change. However, since this proposal would result in a permanent change upon the landscape this uplift is inadequate. The EA forecasts peak rainfall intensity increasing by 20% in 2055-2085 and 30% in 2085-2115. 

We pointed to the LLFA’s response to Aggregate Industries’ ROMP application for Hillhead, which said: 

Following the publication of the Flood Risk Assessments: Climate Change Allowances document (dated 19th February 2016) by central government, the applicant will be required to use a climate change uplift value of 40% when sizing the proposed surface water drainage management system for this development.

40%, not 10%. 

In May this year, Devon County Council's Flood Risk Team, in its role as Lead Local Flood Authority, objected to Aggregate Industries' proposal, but was comfortable with what it understood to be the allowance for climate change: 

In terms of the concerns relating to climate change, the applicant has proposed a surface water management strategy which includes an allowance of 40% for climate change in terms of rainfall within the attenuation calculations. This is inline with the most up to date guidance from the Environment Agency: Flood Risk Assessments - Climate Change Allowances (July 2020).

Which would be brilliant – if 40% were true. The LLFA had either misread, or not read, Aggregate Industries' FRA. We wrote to the LLFA pointing out the discrepancy in their understanding.

Nevertheless, the LLFA has since withdrawn its objection, obviously still comfortable with the uplift for climate change even though it is only 10%. The statutory consultee pointed to the access road and holding area, and to national policy:  

The applicant has provided calculations to indicate that the proposed surface water drainage system for the access road and holding area has been designed to manage the 1 in 100 year event plus climate change which is in line with local and national policy.

Indeed, the access road and holding area may have a more limited lifetime, for which drainage calculations may be in line with national policy, but what about the 56 or more acres that would be permanently changed?

National policy considers the lifetime of development in terms of flood risk, and says: 

The lifetime of a non-residential development depends on the characteristics of that development. Planners should use their experience within their locality to assess how long they anticipate the development being present for. Developers would be expected to justify why they have adopted a given lifetime for the development, for example, when they are preparing a site-specific flood risk assessment. The impact of climate change needs to be taken into account in a realistic way and developers, the local planning authority and Environment Agency should discuss and agree what allowances are acceptable. Paragraph: 026 Reference ID: 7-026-20140306 

National policy also says: 

Indeed, for Aggregate Industries' proposal to construct an asphalt plant at Hillhead, the LLFA specified: 

MicroDrainage model outputs will be required to demonstrate that the proposed surface water drainage system is designed to the 1 in 100 year (+40% allowance for climate change) rainfall event. 

So why – when a 40% uplift was required at Hillhead for both the quarry and the asphalt plant, and when flooding has been acknowledged as such an important issue for communities downstream of Straitgate Farm – did the LLFA in all its flooding wisdom think that a 10% allowance for climate change would be acceptable, for a development that would not only leave a PERMANENT scar on the landscape, but would also PERMANENTLY change the way surface water runs off the site?

Has the LLFA not seen the news this year, the death and destruction that can happen when 150 mm of rain falls in 24 hours?

Events that were once in 100 years are becoming commonplace. Freak weather is increasingly normal.

Has DCC forgotten its Scoping Opinion?

In 2015, Devon County Council issued a Scoping Opinion: PRE/0953/2015 Proposed extraction of Sand and Gravel at Straitgate Farm, Ottery St Mary. We posted about it at the time.

Devon County Council said the Scoping Opinion was:

...a formal opinion as to the information that the applicant will need to include in the Environmental Statement to accompany the planning application for the proposal described above PRE/0953/2015. 

Given the LLFA's recent response, let’s remind ourselves what the Scoping Opinion said on flood risk:

 

In brief, emphasis added, the Scoping Opinion told Aggregate Industries that "as a minimum" it should – amongst other things – demonstrate that "it will be feasible to balance surface-water runoff to the greenfield rate for all events up to the 1 in 100 year storm plus an allowance of 30% for climate change"; that "Where SuDS are proposed, it must be demonstrated that they are feasible..."; that a site plan should show "exceedance flow paths". 

Pretty normal stuff. But obviously not for Aggregate Industries, who has so far been unable to show that its surface water management plans are feasible. 

Despite that, the LLFA has withdrawn its previous objection, on the basis that a pre-commencement planning condition is imposed: 

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

Amazingly, the proposed condition – to be resolved after determination, when 6 years have not been enough to resolve matters before determination – shows that the LLFA has not even seen "a plan indicating how exceedance flows will be safely managed at the site." Clearly, without such a plan – and a raft of other information too – Aggregate Industries has NOT demonstrated either feasibility or the safe management of flood risk. 

Has Devon County Council forgotten its Scoping Opinion, and its request that there should be "proper consideration of all of the likely effects of the project"? 

Has Devon County Council forgotten Regulation 18(4)(b) of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 that says "An environmental statement must... include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment..."?

Legal advice on LLFA decision

Legal advice has been sought on the decision by Devon County Council's Flood Risk Team, in its role as Lead Local Flood Authority, to withdraw its objection to Aggregate Industries’ proposal to quarry Straitgate Farm, providing that a "pre-commencement planning condition is imposed."

As we have previously posted, the LLFA is clearly not in possession of sufficient information to know whether flood risks can be adequately managed or whether a proposed surface water drainage system is even "feasible". The LLFA’s proposed condition shows that the statutory consultee is not even in possession of "a plan indicating how exceedance flows will be safely managed at the site." 

According to the legal advice: 

The Local Planning Authority's legal duty to assess the environmental impact of a scheme cannot be contingent on future mitigation, if that mitigation is not informed by sufficient information at the time the decision is made on the planning application. This issue was recently considered by the Court in R. (on the application of Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin). In Swire, the Court said the following (emphasis added): 

"106 …because of the lack of expert evidence, the defendant [the LPA] was simply not in a position to make an “informed judgment”... It follows that when the defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. 

107. Mr Honey relied upon the advice given to the defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk." 

Furthermore, the Court has made it clear on several occasions that a Grampian condition cannot be used as a means for 'kicking into the long grass' an issue which should be fully addressed at the time the application is determined. It is clear from the LPA's handling of the application (and Policy M24 of the Devon Minerals Plan) that the management of flood risk from the development is of crucial importance. Accordingly, it would be unlawful for the LPA to rely on subsequent consideration of this issue under a Grampian condition as justification for approving the permission, as that is not the purpose of Grampian conditions. Instead, Grampian conditions should only be used when there is a realistic prospect that their requirements will be met so that the development can proceed. It would appear that is not the position here, as the fundamental issue of flood risk management is not being considered in full prior to determination of the application and, as such, the LPA cannot lawfully conclude that the development would be acceptable with the proposed Grampian condition.

Does the LLFA actually understand what’s proposed?

If Aggregate Industries has been unable to produce a workable coherent flood mitigation scheme in SIX YEARS, why does Devon County Council's Flood Risk Team – in its role as Lead Local Flood Authority – think it’s a good idea to sort it all out post determination, other than to avoid further public scrutiny? 

The LLFA has now withdrawn its previous objection, subject to a range of conditions being imposed – including the approval of "a plan indicating how exceedance flows will be safely managed." But how well does the the LLFA actually understand what’s proposed? 

Let’s take just two examples from the LLFA’s response. 

One: The LLFA observes that: 

The haul road will be stripped of soils before coming into use which will enable infiltration directly into the Pebble Beds and avoid the risk of soil compaction. 

Fantastic. The problem? Aggregate Industries' Supporting Statement says: 

3.1.3 An internal haul road will be constructed to link the mineral stockpiling area to the access point on Birdcage Lane. This haul road would be asphalt surfaced from the proposed wheelwash to the junction at Birdcage Lane to ensure that no mud will be deposited on the public highway.

So, "asphalt" or "Pebble Beds"? 

Two: The LLFA will no doubt have put much thought into the proposed conditions. One of them reads:

(c) The applicant should commit to re-working the base of the void to a depth of 1 m as well as the removal of any silt accumulation to ensure the base is fully functionable for infiltration purposes. 

At first glance, another sensible idea. The problem? The void created by any quarrying at Straitgate would be defined by the maximum water table. The Environment Agency has stipulated:

No working shall be undertaken below the ‘Maximum Winter Water Table'

So what on earth is "re-working the base of the void to a depth of 1 m" all about?

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.

Straitgate decision postponed again

Aggregate Industries’ planning application to quarry Straitgate Farm will not now be determined in September. The company has again failed to meet an agreed extension.

 

Nine years have passed since Aggregate Industries’ consultants started crawling over Straitgate Farm in preparation for plans to quarry the site. Six years have passed since the company’s initial application. The determination date for the re-submitted application has been extended 12 times. 

In October 2020, Devon County Council warned Aggregate Industries: 

There is increasing and justified concern within the community about the length of time being taken to determine this application and the delays in providing requested information. 

This application has now been with the County Council for nearly three years [six years since the initial application] and the uncertainty for the local community is a situation that the County Council as Mineral Planning Authority can no longer accept by continuing to request further delays in the determination due to a lack of the information we have been asking Aggregate Industries to provide. 

I must advise you that any extension of the determination date will now be limited to a reasonable period of time for you to do this work. The County Council will not be requesting a further extension of time beyond the end of this year… 

It was a hollow threat. Two weeks later, Aggregate Industries wrote to the Council "to confirm our agreement to a further extension of time until the 31st March 2021." 

That extension was missed, and on 11 March 2021, the Council offered yet another extension: 

I am writing to ask you to formally agree to extend the period for the determination of your application until 30 September 2021. You have indicated this will give you adequate time.

This week we found out that it was not adequate time. 

It's the same old story. Aggregate Industries says one thing and does another. On 7 April 2021, Aggregate Industries wrote to Devon County Council with "our final submission of additional information."

It was not final. On 30 June 2021, Aggregate Industries wrote to Devon County Council with "our final response to the queries raised as part of the consultation." 

That was not final either.

So, where do we stand now, 12 months on from when the Council said no further extensions would be agreed? The next possible date for determination is 20 October 2021.

AI’s loading area would be UNDERWATER too

The central hub of any quarry at Straitgate Farm would be the loading area. 

Deciding its location would have warranted some careful consideration. Or so you would have thought. 

Aggregate Industries has proposed a "50 X 50M LOADING / STOCKING AREA / LORRY PARKING": 

The mineral would be loaded into articulated dump trucks for transport to the designated stocking area where it would be placed in temporary stockpiles pending export off site. The sand and gravel would be taken by articulated HGVs to Hillhead Quarry for processing. 1.5.3  

A parking area for quarry vehicles will be established within the loading area to the north of Straitgate Farm. 3.1.5

The loading area is where much activity would take place. It has obviously been positioned centrally in the site, furthest away from neighbouring properties. The plan is to surround it with 5m high piles of overburden. These piles, together with the piles of topsoil and subsoils, would not only be required to restore the site back to best and most versatile agricultural land – if that were possible – but would also act as noise attenuation and screening. As the Good Quarry Entrance Design Handbook remarks: 

Many quarries are located in the countryside; the introduction of noise into a rural context can be an impact in itself; it can draw attention to the quarry entrance and to have a cumulative effect with other impacts. Noise is most likely to be a regular source of complaints when the quarry and especially the processing and loading areas, are located near to residential property. 

Noise calculations have been performed for the Straitgate application based on the loading area location: 

HGV movements are included in the site noise calculations, at a two-way flow of 16 HGV movements per hour, on the quarry access road between the stockpiling / loading area and the new access onto Birdcage Lane, which links in to the B3174 Exeter Road. 11.2 

The location of the loading area and soil mounds has implications for dust and visual impact too. 

Last month we posted that Aggregate Industries had overburden storage problems. Groundwater is close to the surface in the areas where it is proposed to store overburden – areas where topsoil and subsoils would first need to be removed, potentially breaching the maximum water table. No groundwater monitoring has been carried out in these areas. The Environment Agency has proposed a condition that working should be no lower than the maximum water table.

But, of course, it’s not just the overburden storage areas where the maximum water table could be breached – it would be the loading area too. 

And readers will hardly need us to point out what would happen when the water table rises above the elevation of the loading area. Not only would quarry vehicles be adding goodness knows what contamination to groundwater, but water would also gush down the sloping haul road, adding to any surface water run-off at the time, with obvious flooding implications – as yet unassessed. 

Has Aggregate Industries been aware of this risk all along, hoping no one would notice? It’s hard to believe the company didn’t know, given it has been preparing for this planning application since 2012. 

Or is the company just inept in the fundamentals of quarry design – something so central to its business?

Whichever it is, Aggregate Industries is clearly not taking water at Straitgate seriously enough – be it groundwater or surface water – as we have shown time and time again. 

And water is a serious subject. Get it wrong and not only would the wider community suffer, but we could be seeing scenes like this:

AI has not assessed the impact of climate change on groundwater

The aquifer at Straitgate Farm supplies many people with drinking water.

For a proposal that would permanently remove a large part of the unsaturated zone above the aquifer, and permanently change the landscape, it beggars belief that neither Aggregate Industries nor its hydrogeology consultants have considered the effect of climate change on the groundwater at Straitgate.

In fact, the number of occurrences of the word climate in Aggregate Industries’ Hydrogeological Assessment is precisely zero. It’s a big omission.

It is an irrefutable fact that our climate is changing, that rainfall patterns are changing: 

The overarching picture is warmer, wetter winters; hotter, drier summers

The IEMA says: 

It is important that project designers incorporate climate resilience into the design of the project at an early stage. This means evaluating what resilience measures may be appropriate to include in the design, and this should take place at all stages of design development – from optioneering through to detailed design, not just as a part of the EIA process.

Whilst Aggregate Industries has not considered the impact of climate change on groundwater levels at Straitgate, Professor Brassington has. His Note on the impact of climate change on the proposed quarrying at Straitgate Farm has now been submitted to Devon County Council: 

The main impact of climate change will be the fact that the winter water table will be at a higher elevation than it is now. If this planning permission is granted a common-sense view would be that the rise in the water table that will happen caused by climate change should be accommodated by adding an additional amount to the calculations to account for the additional recharge and the water table rise. 

Of course, the water table at a higher elevation could obviously affect surface water run-off and flooding to downstream communities; the water table at a higher elevation could leave parts of the restored landscape underwater and unfarmable. Aggregate Industries' consultants have assessed none of this.

And there's another problem. Prof Brassington has already warned that the proposal would permanently change the chemistry of the groundwater, making drinking water sources forever too acidic. In this new report he warns that climate change will exacerbate the problem. 

The proposal to remove the unsaturated zone will halve the time available for rock-water interaction which is the main process by which the pH of the water is neutralized from an acidic value of some pH 4.5 which will mean that the water will not be fit for drinking. As a result of the factors discussed in this report, climate change will exacerbate the problem. The BSPB aquifer in the Straitgate Farm area must be regarded as a fragile groundwater system because it lies at the upper end of an aquifer that has springs located only a short distance from the recharge area. 

Prof Brassington concludes: 

The simplest thing would be for the planning authority to refuse permission. 

And who can argue with that?

EA maintains ‘no objection’ – despite warnings from award-winning Prof, despite not knowing ‘workability’ of S106, despite being unsure of base & extent of workings

It really is shocking – embarrassing even – that after all these years, the Environment Agency plainly still can’t get its head around Aggregate Industries’ plans to quarry Straitgate Farm. 

In its latest response, which continues to offer no objection, the Environment Agency seeks clarification on the central and most fundamental aspect of the proposal: 

we request clarification as to whether the February 2021 Maximum Winter Water Table (MWWT) contours are the same as the contours of the intended quarry base.

Firstly, many will wonder how, without knowing the elevation of the base of the proposed quarry, the Agency could possibly be in a position to produce a reliable response on the impact to groundwater. 

Secondly, by seeking such clarification, the Environment Agency provides ample evidence to show it isn’t fully familiar with Aggregate Industries' planning application, because such information is already contained in a number of documents, such as:

In the Non-Technical Summary, 3.8: "The depth of working is set by the level of the maximum winter water table." 

In the Supporting Statement, 2.4.7: "The resource declared assumes a working base that coincides with, and never drops below the Maximum Winter Water Table (MWWT) modelled by hydrogeological specialists AMEC Foster Wheeler following extensive monitoring and analysis since January 2013." 

In the Hydrogeology Assessment, 1.1.3: "Mineral will be worked down to a level defined by the maximum winter water level and then a layer of overburden replaced." 

In the Hydrogeology/Drainage Reg 22 responses, 2.2.1: "...the Maximum Winter Water Table (MWWT) used as the basis of extraction models,..."; 2.2.8: “... derived from the MWWT (i.e. the final proposed depth of working)..."; 2.4.6: "The quarry will be worked dry and down to a level defined by the maximum winter water level...". 

In the Hydrogeology/Drainage Reg 22 response, Appendix C: "... will be extracted to the MWWT." 

In the Resource Assessment, February 2021, 2.1, "The MWWT will ultimately form the base of the workable deposit, and any variation will impact the potential resource." 

In Aggregate Industries' letter, April 2021: "In respect of the revised Mineral Resource Assessment based on the latest modelling of the Maximum Winter Water Table the revised figure of the reserve is still over 1 Million saleable tonnes...". 

But it’s not only the depth of the proposed quarry that the Environment Agency isn’t clear on, it’s also the extent – advising Devon County Council: 

we suggest that your authority may wish to consider whether you want to see an updated plan of the extent of the extraction area (taking into account the near-surface MWWT contours in the north- east part of the proposed excavation area) prior to determination. 

However, if the Environment Agency had been up to speed, they would know that Devon County Council had already asked Aggregate Industries this very question, and the company argued that despite such near-surface MWWT contours "The extraction area... remains unchanged."

The Environment Agency isn’t clear on the "workability" of the S106 either, happy to continue to offer Aggregate Industries "no objection" whilst not knowing how or even if alternative water supplies could be provided – to more than 100 people, livestock farms, businesses, Grade I listed Cadhay and its mediaeval fishponds, wetland habitats in ancient woodlands – advising the Council: 

We recommend that your authority obtains legal opinion on the workability of the proposed S106 agreement.

The Environment Agency was also told about the threat to groundwater in the proposed overburden areas, but, despite being the guardians of our precious groundwater, not a mention in the response. 

And yet, despite these failings, and despite still seeking clarification on the extent and depth of the proposed quarry, the Environment Agency feels sufficiently competent to entirely dismiss all the warnings from Professor Brassington, an eminent authority in the field. 

How on earth could Devon County Council possibly rely on the Environment Agency’s conclusions when they are so clearly flawed?

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