Is Devon's new Minerals Plan sound?

"Effects on people’s health may not be reversible" - That’s what local people can look forward to, according to DCC's Sustainability Appraisal Report (SA), if quarrying were to be permitted at Straitgate - and that’s when the SA assumes "Approximately 100 HGV movements per day", not the 140 average, 200 maximum, that Aggregate Industries wants. It’s another price local people would pay whilst AI profits from destroying an East Devon farm.

SAs are meant to inform the preparation of a Minerals Plan. A SA was meant to inform the selection of preferred sand and gravel sites in East Devon back in 2012; it didn’t:

At the time, the Environment Agency commented:

We advise that this SA should have accompanied the formal consultation in March 2012… In this circumstance it is not clear how the SA has influenced the preferred site options which have been put forward by your Authority. It is apparent from the SA that some of the excluded sites may [be] preferable in environmental terms.

It’s something to bear in mind when DCC says "In commenting on the Pre-submission Consultation Devon Minerals Plan, you are entitled to make representations on whether the Plan is (a) legally compliant and (b) sound".

Why? Because in the draft Minerals Plan, DCC now misleadingly claims:

Each of these stages [of Preparation of the Devon Minerals Plan] was accompanied by publication of the evidence supporting the emerging Plan, while preparation has also been informed by Sustainability Appraisal and Habitats Regulations Assessment. 1.4.2

Even on its website, DCC claims:

Following appraisal of options for sand and gravel sites in East and Mid Devon, a Sustainability Appraisal Report was published following consultation with statutory consultees, and has informed subsequent decisions on the choice of sites for inclusion in the Minerals Plan.

A similar claim is made in Minerals Topic Paper 4.1:

To inform future decisions on the identification of sand and gravel sites in East and Mid Devon, the County Council's sustainability appraisal team published a draft Sustainability Appraisal Report on the East and Mid Devon site options in June 2012. 7.1

The SA didn’t inform "the choice of sites for inclusion in the Minerals Plan" in East Devon because in its haste, perhaps worried that the SA would not give the right 'answer', DCC rejected the nine alternative sites to Straitgate for sand and gravel extraction months before the SA was even published.

It’s an important matter. Melton Borough Council's plan was withdrawn after the Inspector said:

...it is not evident that the sustainability considerations have informed the site selection process. This makes the plan very vulnerable to legal challenge.

DCC’s site appraisal process for sand and gravel was a forgone conclusion - an entirely artificial exercise designed to make Straitgate look the best option among the southern sites.

Artificial? DCC claims that potential alternative sites excluded "outcrops which are too small to be quarried or have already been built on, and those very distant from the strategic road network" 5.4 MTP 4.1.

This is nonsense. A number of the alternatives were plainly unworkable. The SA recognised that "S9 is too small to be viable... It is therefore not a reasonable option and has thus not been subject to SA". S4 was also clearly too small; S2 and S3 too far from the SRN. From the remaining sites that might have been workable, the SA confirmed Straitgate (S7) to be one of the most constrained. Something to bear in mind when DCC says:

Soundness of the Devon Minerals Plan should be assessed against the following... : Justified – the plan should be the most appropriate strategy, when considered against the reasonable alternatives...

DCC now makes the point that:

It is important to note that the sustainability appraisal was carried out on the original site boundaries shown in Figures 2 and 3, not those refined in light of the appraisal findings (detailed in Section 5) and published in the ‘Future Quarrying in East and Mid Devon’ local consultation. 7.2

but the SA on Straitgate's revised boundaries still contains a hefty amount of significant negative effects:

Seemingly it doesn’t matter what anybody tells DCC. The Council is set on having Straitgate in its plan - even despite there being no acceptable way (acceptable to both AI and DCC, that is) of actually processing the minerals.

DCC says "The Minerals Plan is not making provision for the processing of material from Straitgate at Blackhill" and "Given the apparent availability of an alternative location for processing at Rockbeare... it may be difficult for the site promoter to demonstrate the ‘exceptional circumstances’ required for development in the AONB" MTP4.1; AI says Rockbeare’s not possible "due to lack of space especially for stockpiles and silt storage; and non-availability of process water" 38. DCC accepts that "While this represents a risk to the deliverability of Straitgate Farm, this is a matter that can be tested through a future planning application and should not preclude allocation of the site in the Minerals Plan" MTP4.1.

It seems utterly perverse for the Minerals Plan to allocate Straitgate Farm as a "Specific Site" - supposedly a designation where "the proposal is likely to be acceptable in planning terms" - when so much risk hangs over its deliverability. Again, something to bear in mind when DCC says:

Soundness of the Devon Minerals Plan should be assessed against the following... : Effective – the plan should be deliverable over its period...

AI will no doubt, in any submission it makes in response to the Minerals Plan, make the case for again extending the life of Blackhill - the plant that's 8.2 miles away from Straitgate in an AONB without an adjoining active quarry, that was supposed to close years ago after the EC designated the East Devon Pebblebed Heaths an important area for conservation. It will no doubt make out that up to 200 HGV movements a day - a total of 1.2 million CO2 polluting miles over 5 years - "are insignificant to cause a noticeable impact to road users" 4.3.

However, the new Minerals Plan's Vision is that:

Spatial pattern of new mineral development will minimise its contribution to greenhouse gas emissions, while the design and management of quarries, including their use of renewable energy sources, will enhance Devon’s ability to adapt to the impacts of climate change.

and "Wherever possible, the processing of the mineral should take place on-site to minimise transportation distances" 8.8.2.

In fact, both the Climate Change Act p.122 SA and the SEA Directive require that "The Minerals Plan should help achieve the UK Government’s targets for reductions in CO2 and other targeted greenhouse gasses through reducing emissions from minerals operations and transport" Table 3-1 SA, because we should all remember, as indeed the SA points out:

The minerals industry is the third highest energy-consuming industrial sub-sector in the UK.

The extraction, processing and transport of minerals are probably responsible for about 7% of total global energy consumption. This effect is assessed as significant negative due to the global scope of the effects, the reality that global greenhouse gas emissions continue to rise despite an urgency to reduce emissions, and the strong likelihood of cumulative effects alongside emissions from other non-minerals development. Emissions will return to predevelopment levels following restoration but the residency time of carbon dioxide in the atmosphere is 200 years and therefore the impacts will continue to affect the climate for an extended period.

The movement of people across the world we are seeing today will be nothing compared with the numbers that future generations will need to deal with if we don’t act on climate change.

Without a climate deal at #COP21, French President @fhollande notes "we'll have millions of refugees in 20-30 yrs." http://t.co/uukDaxcuJl

— Mikell O'Mealy (@mikellomealy) September 10, 2015

Sound plans, and the importance of the Sustainability Appraisal

Now that a number of local plans are being examined by the Planning Inspectorate, it's becoming apparent just how much importance is attached to the Sustainability Appraisal (SA).

The Planning Advisory Service (PAS) explains:

The purpose of the sustainability appraisal process is to appraise the social, environmental and economic effects of a plan from the outset. In doing so it will help ensure that decisions are made that contribute to achieving sustainable development.

The sustainability appraisal is integral to the plan making process. It should perform a key role in providing a sound evidence base for the plan and form an integrated part of the plan preparation process. It should be transparent and open to public participation. The sustainability appraisal should inform the decision making process to facilitate the evaluation of alternatives. It should also help demonstrate that the plan is the most appropriate given the reasonable alternatives.

Last year we pointed out, in an open letter to the Head of Planning and Transportation at DCC, that the Council's SA had not informed the selection of future mineral sites. DCC responded, saying:

As this [site appraisal] methodology ensures consideration of social, environmental and economic impacts, it was not considered necessary to undertake SA of the site options prior to identifying the preferred and excluded sites for consultation. However, value was seen in undertaking SA of the sand and gravel site options to provide an 'audit'...

Which is all very well, but, without the SA input, the outcome could be seen to lack objectivity. According to the PAS advice note:

SA is most useful when applied to alternatives... The [SA] should inform the decision making process to facilitate the evaluation of alternatives. It should also help demonstrate that the plan is the most appropriate given the reasonable alternatives... The assessment of ‘reasonable alternatives’ is also a legal requirement under the ‘SEA Directive'.

The SA did not inform the rejection of the 18 'alternatives'. The Environment Agency also commented:

We advise that this SA should have accompanied the formal consultation in March 2012… In this circumstance it is not clear how the SA has influenced the preferred site options which have been put forward by your Authority. It is apparent from the SA that some of the excluded sites may [be] preferable in environmental terms.

The graph below, first posted last year, showing the number of SA "significant negative events" for the southern alternative sites, alongside the site appraisal "showstoppers", demonstrated as much. The Planning Inspectorate makes clear:

If the strategy chosen is not endorsed by the SA the reasons for the choice of strategy contrary to the SA will need to be fully justified. Failure to do so is likely to result in a finding of unsoundness.

From the SA and the consultation responses received, statutory or otherwise, Straitgate or S7, although owned by a minerals company, was far from the most appropriate strategy.

Recently the Core Strategies of two councils were found to be 'unsound' by the Planning Inspectorate. Waverley Borough Council was advised to withdraw its plan since it required "a significant amount of additional work" including "the proper testing of alternatives through the SA process". Melton Borough Council's plan was also withdrawn after the Inspector said:

In my view the SA process appears to contain serious errors. Critically it is not evident that the sustainability considerations have informed the site selection process. This makes the plan very vulnerable to legal challenge.

It is clear that the SA must be at the heart of the decision-making process for councils to be able to demonstrate a sound plan. That's a legal requirement; not an afterthought, not just an "audit".

Why was DCC in such a hurry?

© Crown Copyright/MOD 2007

DCC recognised some time ago that airport safeguarding issues could restrict quarrying at Straitgate, and when the CAA has said that "It must be recognized that it is not possible for an aerodrome or aircraft operator to mitigate the hazard caused by water bodies and watercourses, or to prevent birds using areas of open water in the vicinity of the aerodrome" why was DCC so determined and in such a rush to select a site directly under Exeter Airport's flight path?

It's unclear who in DCC wrote Safeguarding Mineral Resources and Infrastructure in February 2011, but here it recognised that "To the north of the AONB, parts of the [Budleigh Salterton Pebble Beds] have been sterilised by existing development at West Hill and Uffculme. However, the remainder of the resource is relatively unconstrained, although local designations, groundwater considerations and airport safeguarding arrangements may provide localised constraints."

These "localised constraints" plainly didn't concern DCC when it selected Straitgate as a Preferred Site. DCC had made its mind up some time before its Development Management Control (DMC) meeting of 7 March 2012, saying "All but one of the sites in the southern area were found to have at least one ‘showstopper’ impact in the site appraisals". In all likelihood DCC had decided much earlier, since Aggregate Industries had been assured enough to expense consultants' reports and plans, made available to the Council on 27 February. But how could DCC be so sure that Straitgate was the right site when the Site Appraisal was incomplete - "Conflict with Aerodrome Safeguarding Areas" being left with "In process of checking implication with airport"?

After all this was not an insignificant detail when Straitgate and other southern sites are directly under the flight path. The CAA has made clear that "almost without exception, water developments increase the bird hazard in ways that cannot be adequately controlled. Often, they are a consequence of minerals extraction, in which case there will probably be more similar proposals that will progressively surround the aerodrome with water. Even where this is not the case, there are nearly always pre-existing water bodies with populations of waterfowl nearby. In practice, isolated ponds that will not generate waterfowl movements do not exist. Any additional water will inevitably increase a pre-existing hazard from waterfowl."

DCC sent a copy of Aggregate Industries' plans to Exeter Airport shortly after 27 February, but didn't wait for their response before voting at the DMC meeting to consult on Straitgate and rejecting the alternatives. The Airport's reply arrived 2 days later, and said that "To ensure aviation safety it is suggested that no ponds or body of water be allowed as part of this development." At this point DCC could have still postponed its consultation, considered the advice, and had a re-think. But then DCC hadn't waited for the conclusions of the Sustainability Appraisal either, which reported on the "sustainability issues relevant to each of the 21 potential quarry sites". This report was redundant in this respect by the time it was published in June, since 18 of the potential sites had already been rejected by DCC, landowners having been informed on 12 March with a very final "the appraisal work has concluded that the site within your ownership is unsuitable at the present time for mineral working due to one or more environmental constraints, and the County Council will not be considering it for inclusion in the Devon Minerals Plan."

How was DCC so certain that Straitgate, with all its water issues, could be worked dry or restored without water features? Continual pumping into watercourses would be required for the former. Importation of millions of tonnes of inert waste for the latter. DCC convinced attendees at its West Hill exhibition that landfill at Straitgate was not an option. In any case, there may not be the availability of sufficient inert waste with much now recycled, or it may not be economic with recent landfill tax changes, or even environmentally acceptable.

No - it seemed that only one thing mattered - Straitgate was owned by Aggregate Industries, and DCC assumed it was deliverable. People might have hoped that when it came to aircraft safety, the Council would have considered matters more carefully and with less haste.

Reply from DCC

Letter from Dave Black, Head of Planning and Transportation at DCC, in reply to the Letter to DCC, regarding DCC's Sustainability Appraisal (SA) first referred to in Negative impact on flight safety only "minor"?

The reply from DCC argues that since the site appraisals considered "...social, environmental and economic impacts, it was not considered necessary to undertake SA of the site options prior to identifying the preferred and excluded sites for consultation." Government advice is however that Strategic Environmental Assessment [SEA, a European Directive which forms part of the SA] is most effective when started as early as possible...". In DCC's case the SA report, with its conclusions on the relative environmental impacts of each site, was published some three months after the Consultation started, and did not inform the selection of the Preferred Sites, or the rejection of the alternatives, a point also made by Natural England. It is therefore unclear how DCC will be able to demonstrate that Article 2(b) of directive 2001/42/EC "the taking into account of the Environmental Report... in decision making" has been fulfilled.

DCC does not see a conflict of interest in the same person overseeing preparation of the Minerals Plan and the Sustainability Appraisal. Many local authorities however, Oxfordshire, Somerset and Wiltshire to name three, engage outside consultants to "undertake an independent Sustainability Appraisal" which helps avoid any accusation that the SA is not entirely impartial. Government advice says it is "helpful to involve people... who are not directly concerned in producing the plan or programme and can contribute expertise or a detached and independent view". It is not a "legal requirement" for the SA to be independent, but good practice when working to find the best outcome, not just the most deliverable.

DCC does however welcome any comments from the public on the SA report "... including any inaccuracies or disagreement with judgements made in the report", but otherwise has decided that the SA report "... does not warrant a wider consultation." The SA report on S7 (Straitgate) can be found in S7 and S7 appendix. Click for the Sustainability Appraisal Team contact details. Here is a list of our comments so far.

Has DCC properly assessed the impact of quarrying on the historic environment?

Not according to "Heritage in local plans: how to create a sound plan under the NPPF" released last week by English Heritage.

Quarrying at Straitgate Farm would not only impact the Grade II listed Devon longhouse and its setting, but also the source of water for the mediaeval fish ponds that are of central importance to the gardens at Cadhay, the Grade I listed Tudor manor house. A pre-historic track also runs through Straitgate, and a number of archaeological finds were made in the area during the construction of the A30.

Water from Straitgate at Cadhay

The historic environment did not concern DCC in the Site Appraisal of S7 (Straitgate), with the impact on Cadhay rated "Medium/Low", and bizarrely even the impact on Straitgate, of removing the agricultural setting of a 16th century farmhouse, only rated "Medium". The Sustainability Appraisal also failed to appreciate these assets, assessing only a "Minor negative impact" on the historic environment of quarrying S7.

English Heritage however say "The NPPF expects heritage assets to be conserved and enhanced for generations to come."

English Heritage advise "Sound local plans will be based on adequate up-to-date evidence about the historic environment." "This is not just an exercise in listing known sites, but of understanding their value to society (their significance), how they and the area have developed through history, their physical conservation status and needs, the contribution of their settings, scope for enhancement and their potential to contribute to the delivery of other sustainable development objectives." 

We now know that DCC's Sustainability Appraisal did not inform, as it should have, the earlier Site Appraisals, but English Heritage are clear that "The evidence base will also be of relevance to the Sustainability Appraisal which accompanies the Local Plan, helping to populate the baseline data and informing the appraisal process itself." "Where the evidence base is weak, local planning authorities may find it useful to commission research from appropriately qualified and competent experts to supplement existing information." 

English Heritage consider that "One of the core dimensions of sustainable development is the protection and enhancement of the historic environment." DCC must not be blinkered in its pursuit for a Preferred Site for sand and gravel quarrying - the County's historic assets need to be taken seriously.

Environment Agency and Natural England respond again to Straitgate

DCC has received new responses from the Environment Agency and Natural England, this time in connection to the Sustainability Appraisal Report, referred to earlier, 18 July and 26 June.

Both statutory consultees commented on timing, the Environment Agency saying "We advise that this Sustainability Appraisal (SA) should have accompanied the formal consultation in March 2012 which set out your Authority’s preferred sites for future quarrying in East and Mid Devon." The Environment Agency were also of the opinion that "It is apparent from the SA that some of the excluded sites may [be] preferable in environmental terms" confirming the view that DCC focused rather more on "deliverability" - all the preferred sites are owned by Aggregate Industries - and much less on the "constraints". 

Natural England stated that "there are many contradictions and inconsistencies in the report which appears to have been written, not only after preferred options were selected, but also justifying those preferences - sometimes with inaccurate statements. For example, CAA advice for aircraft safety which conflicts with a proposal is usually considered a high not minor risk; travelling unnecessarily 9km though an SAC to process material further away from its final destination is not considered to be a neutral impact." With regard to Straitgate (S7), and the impact on Ancient Woodland and wetland habitats in Cadhay Bog, "If the Airport Authorities require no or maintained ponds as per their guidance on bird strike, we advise that mitigation would be either extremely difficult or not be possible, particularly given other ground water constraints and therefore consider this to be an immitigable impact of high significant negative impact." On the subject of processing at Blackhill, "Natural England has serious concerns regarding potential continued processing at Blackhill Quarry due to its sensitive location within the SAC. Although we have some concern regarding later restoration we are particularly concerned about the importation of waste material (including wet silts and water used to clean waste) with a higher nitrate content than that appropriate for restoration in a heathland area which requires negligible or preferably no nutrients. As Straitgate is intensively dairy-farmed, it would be impossible to prevent nitrates from entering lagoons at Blackhill if material were brought to Blackhill as dug. We advise that off-site processing at Blackhill is therefore an unacceptable high negative impact not highlighted in the SA report which should be noted."

DCC wanted an "evidence base" before delivering its Mineral Plan. Yet again the Council has been told that Straitgate is an unsuitable site.