Residents oppose planning application for quarry use, citing huge risk to water supply. A summary by property and housing chambers at 4-5 Grays Inn Square of a recent decision by the Secretary-of-State, was published online. This text has been taken from a newsflash direct from 4-5 Grays Inn Square. The decision provides a useful illustration of the circumstances in which a decision maker can depart from the views of a statutory consultee in determining a planning matter. This is a technical and detailed summary of part of a decision. It highlights the importance for decision makers, planning applicants and their opponents; of critically analysing the methodology and assumptions underlying proposed mitigation measures; even in circumstances where those measures have been endorsed by a statutory consultee.

The Circumstances

The circumstances of this particular decision are that the Secretary of State dismissed an appeal against a refusal of planning permission for a sand and gravel quarry (APP/M1900/W/17/3178839: Land at Ware Park, Wadesmill Road, Hertford, Hertfordshire) on the grounds that the proposed development would pose an unacceptable risk to an important public drinking water supply.

RJD Ltd and Gowling WLG Trust Corporation Ltd (“the Appellants”) applied for planning permission. Permission applied for was to extract 1.75 million tonnes of sand and gravel from a site known as Bengeo Field; located just outside the town of Hertford. The scheme was refused permission by Hertfordshire County Council; this was a result of the mineral planning authority (“HCC”) and the Appellants appealing to the Secretary of State. Alongside HCC, Stop Bengeo Quarry (“SBQ”), a local residents’ action group, opposed the appeal as a Rule 6 party.

4-5 Grays Inn Square represented SBQ which opposed the appeal on the ground that the measures proposed by the Appellants to mitigate the risk of pollution posed by the proposed development to a chalk aquifer, or groundwater source, underlying the appeal site were inadequate. The aquifer supplied a pumping station which generated 60% of the local drinking water supply.

The Appellants’

The Appellants’ proposed mitigation measures relied on retaining a protective layer of residual material above the chalk aquifer. SBQ argued that the methodology used by the Appellants for establishing the depth of the protective layer required to protect the aquifer was fundamentally flawed. The Appellants did not have sufficient information about the chalk aquifer; in particular the irregular topography of its surface and the fractures within it, on which to base a programme of effective mitigation measures. It was reasonably foreseeable that, without further information about the characteristics of the chalk, accidental and potentially adverse exposure of the chalk would occur if the proposed development took place.

The Appellants relied on the fact the Environment Agency (the “EA”) as statutory consultee had not objected to the proposal; arguing that a departure from the views of a statutory consultee would require cogent and compelling reasons, which were absent in this case. In reply, SBQ relied on previous case law which argued that the fact that the EA had stated that it did not have in-house capability or competence to carry out surveys of the topography and characteristics of the chalk and that the Inquiry had now heard more evidence about these matters from SBQ’s expert witness, did provide cogent and compelling reasons to depart from the EA’s views in this case.

The Inspector

The Inspector dismissed the appeal (amongst other things) on the basis of the risk of pollution to the chalk aquifer. The effectiveness and enforceability of the protective layer proposed by the Appellants as a mitigation measure was founded on the reliability of their assessment of the nature of the chalk. There was no convincing evidence to support the Appellants’ assumptions as to the topography of the chalk surface. The EA as statutory consultee was therefore unable to provide any assistance in this regard.

Given this uncertainty and the evidence presented by SBQ challenging the Appellants’ assumptions, it was not reasonable to rely on the methodology underpinning the Appellants’ proposed mitigation measures. In the absence of an appropriate mechanism and planning condition to safeguard the aquifer, the appeal scheme would pose an unacceptable risk to an important public water supply.

Fisher Jones Greenwood can assist with all types of planning and enforcement work, including planning objections and instructing counsel where necessary, please contact us on 01206 700113 or email [email protected].

 

 

Read other articles by Ellen Petersen:

https://www.fjg.co.uk/blog/2019/05/13/net-zero-carbon-buildings