Growth and Infrastructure Bill

MEMORANDUM SUBMITTED BY THE LOOSE ANTI OPENCAST NETWORK (GIB 32)

(Clause 21)

1) ABOUT THE LOOSE ANTI OPENCAST NETWORK (LAON)

LAON was formed in 2009. It helps groups across the UK share information about the planning issues relating to opencast coal. Member groups in LAON provided much of the information that informed the House of Commons Debate on the Planning (Opencast Mining Separation Zones) Bill in 2011.Our evidence to the Communities and Local Government Select Committee in preparation for the Oral Hearing on Housing Planning and Growth held on October on 15/10/12 was published as written evidence. LAON is currently monitoring 14 actual or potential planning applications for opencast sites in England, as well a 5 in Wales and 2 in Scotland.

I act as the unpaid Co-ordinator and Research Officer for LAON.

2) EXECUTIVE SUMMARY

This memorandum argues that the determination of planning decisions for opencast or surface mine sites should remain the responsibility of Mineral Planning Authorities and not transferred to the National Significant Infrastructure Regime for the following reasons:

· It would weakens the opportunity to object to a planning application,

· It could affect thousands of people living on or close to England’s shallow coal fields,

· There is little evidence to suggest that the present planning system used to determine opencast planning applications is delaying or preventing successful planning applications from being made.

· Planning policy for coal should be aligned with Energy Policy. The expectation is that the use of coal for power generation purposes is going to decline significantly in the near future. There is no need therefore, to change the planning process for determining new opencast coal sites.

3) WHAT GROUPS AND MEMBERS REPRESENTED BY LAON FEAR AS A CONSEQUENCE OF PASSING THIS BILL IN ITS PRESENT STATE (1)

3.1) Our concern is concentrated on Clause 21 of the Bill, where according to the Impact Assessment prepared for the Bill, includes provision for applications which are for mining and quarrying to be treated as major infrastructure projects (2) Groups and members which LAON represents fear that if this Bill is passed in its present state, that they will witness a rash of large opencast mine applications across the shallow coalfield areas of England. If the surface mining of coal is designated as a Major Infrastructure Project, then this provision is likely to affect the daily lives of thousands of people as these are likely to be the areas most affected:

Counties (England)

Co Durham, Cumbria, Derbyshire, Leicestershire, Nottinghamshire, Northumberland, Shropshire, Staffordshire and Warwickshire

Unitary Authorities (England)

Barnsley, Bolton, Gateshead, Kirklees, Newcastle upon Tyne, Leeds, Rotherham, St Helens, Stoke on Trent, Sunderland, Wakefield, Walsall and Wigan.

3.2) Our perception is that it is the intention of this Bill to make it easier for applicants to attain planning permission for sites which meet the threshold criteria that is eventually laid down. We fear that this will be the case because:

Local people will be less able to raise objections based on local knowledge of each site

The costs involved in participating in any Public Inquiry

The remoteness of the Case Officer dealing with the case

The reduced time available in which to organise a group, research the issues and make informed objections.

3.3) Our other fear is that this Bill may make it easier to work coal deposits close to where people live. LAON has already recently had evidence published by the Select Committee on Communities and Local Government in which we highlighted our concerns over the way opencast coal planning applications are dealt with by the English planning system. We also highlighted the fact that in England it is estimated that there are reserves of 516m tonnes of surface mineable coal. However, 500m tonnes of that coal are within 500m of where people live. (3) We ask that these figures be born in mind when deciding on whether the surface mining of coal should or should not be included in any definition of a Major Infrastructure Project If the surface mining of coal is designated as a Major Infrastructure Project, then this provision is likely to affect the daily lives of thousands of people.

4) THE EVIDENCE DOES NOT SUPPORT THE CLAIMS THAT SYSTEM OF GAINING PLANNING APPROVAL FOR SURFACE MINE SITES NEEDS TO CHANGE

4.1) There is a long history of conflicts between opencast mine operators and local communities over new opencast mine applications. Hence at any one time, the contemporary diet of planning policies in operation represents a truce line which shows the relative strengths of the combatants. In Scotland and Wales, their current truce line represents a relative victory for the communities over the operators, since the mineral policies operating in those countries incorporate in their guidance, the need for a 500m separation zone between an opencast site and where people live.(4) English planning guidance does not incorporate any such requirement despite attempts to try to incorporate such a requirement in the English planning system.(5)

4.2) In the English planning system, after a long struggle, the protection of the public interest from the depredations associated with opencast mining was enshrined in the ‘presumption against’ opencast mining clause that was inserted into the set of planning guidance documents issued in 1997. (6) This at the time represented a ‘truce line’ which was seen as a victory for the community campaigners.

However, by 2011 the operators were able to claim that

" Whilst the ‘presumption against’ remains an irritant, it might be said that the industry has learned to live with it. " (7)

4.3) How this has happened can be traced back to two events, the publication of MPS2, ‘Controlling and Mitigating the Environmental Effects of Minerals Extraction in England’, in 2005 (8). This document set out a quality assurance methodology, which if followed, would increase the chances of a successful mineral extraction application. Secondly the creation of the Coal Forum in 2006 which created an instutionalised pressure group located initially in the Department of Business, Enterprise and Regulatory Reform and eventually inside the Department of Energy and Climate Change up until the 2009 election. This body, which included amongst others, Civil Servants, Coal Producers, Trades Unions, Generating Companies and the Coal Authority was to revive the coal industry

Its role was to

"to bring forward ways of strengthening the industry, and working to ensure that the UK has the right framework to secure the long-term future of coal-fired power generation; optimise the use of our coal reserves, where recovery is economic; and stimulate investment in clean coal technologies. (9)

Its influence on advising coal operators on how to optimise the use of coal reserves soon saw a double strategy in operation. On the one hand the Coal Forum was successful in gaining acknowledgement in the 2007 Energy White Paper that in order to ensure UK energy security it was necessary to exploit the UK’s indigenous coal reserves. Having secured this statement of policy, this was used in subsequent planning applications for surface mines from 2007 until the implementation of the new National Planning Policy Framework (NPPF) in 2012.

4.4) This has swung the pendulum back in favour of the coal operators and against those communities who have opposed opencast mine applications. Between 2005 and 2011, prior to the implementation of the NPPF, this has been the record of public appeals against local authorities to refuse planning permission:

Site Name Planning Authority Public Inquiry Verdict

Long Moor Leicestershire Appeal upheld

Delhi Extension Northumberland Appeal upheld

Shotton, Northumberland Appeal upheld

Lodge House Derbyshire Appeal upheld

Huntington Lane Telford (Non Determination Public Inquiry which approved the application)

Newton Lane Leeds Appeal rejected

Bradley Co Durham Appeal rejected (Subject to an ongoing Judicial Review).

Public Inquiry decisions have the status of being case law decisions and can therefore be cited to justify the case for further approvals for new opencast sites. This can be seen in Appendix 2 as there has been an increase in the rate of first time approvals and an overall increase in the amount of opencast coal worked since 2005.It would seem that the figures bear out the increased confidence the industry felt that it would gain planning permissions, hence its willingness to put forward more sites for approval and the increasing reluctance of local authorities to refuse planning permission.

4.5) The introduction of the NPPF has, in the opinion of many observers, further improved the chances of applicants gaining planning permission, especially in light of the Planning Inspector’s decision to grant planning permission for an opencast mine at the Halton Lea Gate site in Northumberland. Judging from the reaction of the minerals industry, they see this as a landmark victory under the new NPPF system. (11) If it survives a judicial review, it can be cited as a material consideration when any future mineral planning application is being determined. In that case the ‘great weight’ argument about the national need for the mineral in question will be deemed to be more important than other considerations, such as, in this case, the site of this mine being 17m from a house or 300m from an Area of Outstanding Natural Beauty.

4.6) It is LAON’S contention that this provides sufficient evidence that the planning system is not the cause of insufficient applications for new opencast mines coming forwards and succeeding and that such decisions should be left to Mineral Planning Authorities to determine.

5) THE PLANNING AND ENERGY POLICY PARADOX

5.1) Reference has already been made to the close interrelation between planning policy and energy policy over coal issues. Applicants for new opencast mine sites refer to the latest Energy Policy White Paper as a justification for the Need for Coal. The latest, ‘Planning Our Electric Future’ is far more muted than its predecessors when it comes to stating the Need for Coal. This is this White Paper version of the Need for Coal argument:

" Although coal may have an important role to play within the UK’s diverse generation mix, it is important it does so in a manner which complements the transition to a low-carbon economy." (12)

That was written in 2009. Much has happened since then to weaken further the strength of the Need for Coal argument.

5.2) Firstly there is the evidence of the reduction in our capacity to burn coal for power generation purposes. This is because a third of coal burning power stations did not meet the required E.U. pollution standard and have or are due to close by the end of 2016. As a consequence the following will cease to be coal burning stations, Tilbury, Ferrybridge, Didcot, Ironbridge, Cockenzie and Kingsnorth

5.3) Secondly, the Government, through measure such as the Carbon Tax and the new banding system for the Renewables Obligation Certificates has encouraged power generators to consider that a full conversion to biomass firing may be more profitable rather than burning coal. As a consequence, there is almost a rush out of coal. Tilbury has already been converted and a conversion plan for half of the Drax power station has been announced, along with Eggborough and Ironbridge. (13)

5.4) Thirdly the owners of the remaining coal fired power stations have until the end of next year to decide whether to upgrade their plant so that it conforms to the new Integrated Pollution Control Directive or close as a coal fired power station by the end of 2023. This is likely to further reduce the UK’s capacity to burn coal. (14)

5.5) Fourthly, uncertainty about when a commercially viable CCS system will be proven means that, for the foreseeable future, the demand for coal for power generation purposes will soon be in steep decline. So much so, that a recent DECC Consultation Document ‘Biomass, Electricity and Combined Heat and Power Plants’ the following statement about the future use of coal appears.

"Informed by the findings of the Bioenergy Strategy the Government Response on the Banding Review of the Renewables Obligation, published on 25 July 2012 set out decisions on the support levels to be provided for different  renewable electricity technologies from April 2013. This confirmed our primary focus for biomass electricity in the shorter term towards removing coal from the current UK power generation mix...." (15)

5.6) In addition LAON has obtained from the DECC a projection about the future use of coal up to 2031(See Appendix 3). It shows that using coal consumption in 2011 as a base line, coal usage for power generation purposes is to drop by 29.9% by 2016 and by 76.3% by 2021. These figures were complied in the summer of 2012 and may not take account of the more recent news about the conversion of Drax, Eggborough and Ironbridge power stations referred to above. (16)

5.7) One other point needs to be made here. It takes a coal operator approximately five years to go from conception to gaining planning permission for a new opencast mine. This is a long lead in time, not all of it taken up with the time it takes to determine an application. Then on average it takes about a year for the applicant to prove that they have met the planning condition requirements before they can begin to extract the coal Depending on the size of the site and how intensively it is worked, coal extraction can take about four years. By adding these figures together, if an applicant was currently at the conception stage, the last coal would be being extracted from the site in 2022, when the demand for coal is expected o be below 10m tonnes .

5.8) Here then is the paradox. At the same time that there is evidence about a significant decline in the need for coal for power generation purposes, this Bill may allow for large surface mine sites to be fast tracked through the easier National Infrastructure Planning system. It could mean that two sets of policies are travelling in opposite direction, with an Energy Policy designed to phase out the use of coal one the one hand operating with a planning policy designed to enhance a more rapid degree of coal extraction on the other. We therefore argue that this Bill presents an opportunity to align planning policy with the emerging energy policy and exclude the surface mining of coal from any regulations covering quarrying and mining which would be introduced once this Bill becomes law.

5.9) Planning policy for coal should be aligned with Energy Policy. This evidence proves that the use of coal for power generation purposes is going to decline significantly in the near future. There is no need therefore, to change the planning process for determining new opencast coal sites in the way suggested by this Bill.

6) CONCLUSION

6.1) The evidence presented here suggests that the present planning system effectively deals with planning applications for new opencast coal sites. With the prospect of a decline in the need for coal for power generation purposes there is no need to speed up planning decisions for new opencast sites. The surface mining of coal should be excluded from any regulation about mining or quarrying that is made under the provision of this Bill should it become an Act.

November 2012

REFERENCES

REFERENCES FOR MEMORANDUM TO THE PUBLIC BILL COMMITTEE EXAMINING THE GROWTH AND INFRASTRUCTURE BILL

1) For details of the groups LAON represents see Appendix 1

2) Growth and Infrastructure Bill Impact Assessment, DCLG, November 2012, p 68 @

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14682/growth_and_infrastructure_bill_-_impact_assessment.pdf

3) Planning And Housing: A Memorandum From The Loose Anti Opencast Network to The Communities And Local Government Committee, on Evidence to put to The New Ministers Of Housing And Planning, 22/10/12

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmcomloc/writev/plan/phm40.htm

4) ‘Scottish Planning Policy’, (The Scottish Government, 2010), paragraphs 239-247 @

http://www.scotland.gov.uk/Publications/2010/02/03132605/0

‘Mineral Technical Advice Note 2: Coal, (Welsh Assembly, 2009) @

http://www.caerphilly.gov.uk/pdf/Environment_Planning/LDP-Examination-Documents/W39-MTAN-2-Coal.pdf

5) Planning (Opencast Mining Separation Zones) Bill, 2011 @

http://services.parliament.uk/bills/2010-11/planningopencastminingseparationzones/documents.html

Debate on the 2nd Reading of the Planning (Opencast Mining Separation Zones) Bill. 11/2/2011@

http://www.theyworkforyou.com/debates/?id=2011-02-11a.647.0&m=40081

6) Minerals Planning Guidance 3 ‘Coal Mining and Colliery Spoil, 1997 originally published by ODPM

The presumption against paragraph stated

8. In applying the principles of sustainable development to coal extraction, whether opencast or deep-mine, and to colliery spoil disposal, the Government believes there should normally be a presumption against development unless the proposal would meet the following tests:

i. Is the proposal environmentally acceptable, or can it be made so by planning conditions or obligations?

ii. If not, does it provide local or community benefits which clearly outweigh the likely impacts to justify the grant of planning permission?

iii. In National Parks and Areas of Outstanding Beauty (AONBs), proposals must also meet the additional tests set out in paragraphs 28 and 29 below.

iv. Proposals within or likely to affect Sites of Special Scientific Interest (SSSIs) and National Nature Reserves (NNRs) must meet the additional tests set out in paragraphs 30 and 31.

v. Proposals within the Green Belt must meet the additional test in paragraph 36 below. @

http://webarchive.nationalarchives.gov.uk/20120919132719/www.communities.gov.uk/archived/publications/planningandbuilding/mineralsplanningguidance2

7) The UK COAL FORUM: Annual Statement of current issues for discussion with the Minister of State for Energy, Charles Hendry MP, Para 11, 1st December 2011 @

http://www.vmine.net/coalforum/annual.asp

8) MPS2, ‘Controlling and Mitigating the Environmental Effects of Minerals Extraction in England’,

http://www.planningportal.gov.uk/planning/planningpolicyandlegislation/previousenglishpolicy/mmgmpsmmg/mps2

9) The Coal Forum, Home Page @

http://www.vmine.net/coalforum/index.asp

10) All these figures are derived from the British Geological Survey’s annual Opencast Coal Survey available here @

http://www.bgs.ac.uk/mineralsuk/mines/coal/occ/home.html

11) For example ‘Landmark planning appeal is a big thumbs up for mineral extraction’ (Development Control Solutions / Mineral Planning, 16/8/12) @

http://www.dcservices.co.uk/news/1145859/landmark-planning-appeal-big-thumbs-up-mineral-extraction/

‘Green Light for Halton Lea Gate’ (Environmental Industry Magazine, undated) @

http://www.environmentmagazine.co.uk/latest-news/1117-green-light- for-halton-lea-gate

12) ‘Planning our Energy Future: a White Paper for affordable and low- carbon electricity’ CM 8009, July2009, para 2.4.1 @

http://www.decc.gov.uk/en/content/cms/legislation/white_papers/emr_wp_2011/emr_wp_2011.aspx

13) ‘Drax to raise cash for biomass conversion’ (Yorkshire Post, 25/10/12)

http://www.yorkshirepost.co.uk/business/business-news/drax-to-raise-cash-for-biomass-conversion-1-5060367?

‘Eggborough Power Station takes green route as coal enters its ’slow death’ (The Times, 5/11/12) @

http://www.thetimes.co.uk/tto/business/industries/utilities/article3590052.ece

‘Ironbridge biomass conversion : a world first’ (Moving Mountains, Hargreaves Services, Issue 18, autumn 2012, p6)

http://www.hargreavesservices.co.uk/uploads/movingmountains18.pdf

14) ‘Europe coal spurt runs into pollution limits’ (Arab News, 15/10/12)

http://arabnews.com/eu-coal-spurt-runs-pollution-limits?

15)  "Biomass, Electricity and Combined Heat and Power Plants", DECC, 7/9/12, para1.7 @

http://www.decc.gov.uk/assets/ d ecc/11/consultation/ro-banding/6339-consultation-on-biomass-electricity--combined-hea.pdf

16) Figures supplied to Ms J Holmes in a personal communication from a source in DECC.

APPENDIX 1 GROUPS REPRESENTED BY LAON

UK WIDE

Coal Action Network

ENGLAND

Alumwell Action Group Walsall

Cowley Residents Action Group Sheffield

Hilltop Action Group Derbyshire

North Pennine Protection Group Northumberland

Minorca Opencast Protest Group Leicestershire

Pont Valley Network Co Durham

Shortwood Farm Opencast Opposition Nottinghamshire

Skelmansthorpe Action Group Kirklees

Smalley Action Group Derbyshire

West Hallum Environment Group Derbyshire

Whittonstall Action Group Northumberland

NORTHERN IRELAND

Say No To Lignite

SCOTLAND

Coal Action Scotland

WALES

Green Valleys Alliance

The Merthyr Tydfil Anti Opencast Campaign

APPENDIX 2

PLANING APPROVALS AND REJECTIONS FOR ENGLISH OPENCAST SITES 2005 - 2010

Year No of Approvals No Rejecte d Tonnage Approved

2005 1 0 40,000

2006 3 2 1,97m

2007 6 0 5.53m

2008 2 0 0.5m

2009 4 2 3.09m

2010 0 1 on appeal 0

Figures for 2011 are not available at the time of writing. (10)

APPENDIX 3

A DECC TABLE OF THE ACTUAL AND ESTIMATED USE OF COAL FOR POWER GENERATION PURPOSES 2011 – 2031

Year Tonnage (mt) Year Tonnage (mt)

2011 40.57 2021 9.63

2012 57.81 2022 9.24

2013 54.17 2023 8.15

2014 45.95 2024 7.35

2015 42.50 2025 5.36

2016 28.41 2026 4.06

2017 26.62 2027 2.36

2018 21.82 2028 1.65

2019 18.96 2029 1.38

2020 13.32 2030 1.36