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.

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 both the House of Commons Debate on the Planning (Opencast Mining Separation Zones) Bill in 2011and the making of a section of a BBC1 Counrtyfile programme to be broadcast on 30/9/12. I act as the unpaid Co-ordinator and Research Officer for LAON.

2) EXECUTIVE SUMMARY

The reforms proposed on the 6th September will have a very severe and detrimental impact on people if used for determining mineral planning applications, especially for coal, They may also contribute to lower quality applications being approved for reasons explained below.

3) GENERAL OBSERVATIONS ON THE CURRENT (POST NPPF) PLANNING SYSTEM FOR DECISIONS ON MINERAL EXTRACTION

3.1) The Loose Anti Opencast Network (LAON) is submitting this evidence to make the Committee aware that recent changes in mineral planning policy has already had severe consequences for people.

3.2) Reading mineral planning application documents make two things clear. There is little direct reference to the consequences that any proposed development will have on people. Direct references are made to the impact that the development has on the local ecology, but not directly on people. They are written out. The nearest we get to them being considered are references to ’receptors’. When I first read and understood what the term meant, I felt that I had become a ghost in my own village, an abstract entity that had no power to influence events.

3.3) Secondly, the planning discourse has developed its own language and culture. All applications use language which acts as a barrier between people and their ability to engage in the planning process. In any decision about planning issues, this imbalance in knowledge is there from the start. When the planning application is for mineral extraction, the imbalance is even starker as these applications are more complex, technical and the language more esoteric. The playing field on which the decisions are to be made, are already tipped in favour of the applicant,

3.4) English UK citizens, compared with their Scottish and Welsh counterparts, were suffering from an injustice when it came to objecting to opencast coal applications before the NPPF was introduced. We were already being treated as second class citizens. Planning policy guidance for coal in England does not require a 500m buffer zone between the site of an opencast mine and houses, whereas explicit guidance on this provision is contained in planning guidance notes for Scotland [1] and Wales [2] that protects local people better from the risks and loss of amenity associated with this form of development.

3.5) The Localism Act further compounds the injustice. The policy may intend to empower local communities to engage in the development of local plans and be more involved in land use planning decisions – except for infrastructure projects and mineral planning decisions.

3.6) Paragraphs 3.4 & 3.5 is two examples of the injustice inherent in the English planning system before the NPPF was introduced which remain after the NPPF was introduced. LAON believes that these are legitimate grievances to bring before this Committee, before it considers further changes which, if approved by Parliament, would further reduce our right to be heard.

3.7) LAON is already alarmed at the consequences of implementing the NPPF on mineral planning applications, 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. [3] Judging from the reaction of the minerals industry, they see this as a landmark victory under the new NPPF system [4] . If it survives a judicial review [5] , 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. LAON therefore consider that the implementation of the NPPF has already tipped the balance of the planning system even further in favour of the applicant. If the Committee agrees with this, why is consideration is given to tipping the balance further again against those who have legitimate ground for objection to future applications?

4) WHY OPENCAST COAL IS SUCH A CONTENTIOUS ISSUE.

4.1) Opencast Coal is a contentious English planning issue. This is because England has most of the surface mine coal reserves that are known to be in the UK. It amounts to 516m m/tonnes [6] . This coal is much cheaper to mine than deep mined coal. The Confederation of UK Coal Producers (CoalPro) estimates that if England’s planning system did include a 500m buffer zone, then between 250m and 500m m/tonnes of surface mine coal reserves would be sterilised, a figure equal to between 48 and 97% [7] of these reserves. LAON believe that, when Andrew Bridegen’s Private Member’s Bill [8] to introduce such a buffer zone into the English planning system was recently debated [9] and this point was put to the Government beforehand, it took fright and talked out the Bill without explaining why. LAON claim that what the Government saw, was that too much of our surface mineable coal reserves are too close to where people live to give them similar protection to that enjoyed by our fellow citizens in Scotland and Wales.

4.2) England is a more densely populated country, with many of its urban areas located for historical reasons on or near to shallow coalfields. LAON argue that this Committee should see the strength of the reverse argument, which is that too many people live, often unbeknown to them, too close to potential opencast sites for this state of affairs to continue for much longer. This aspect of policy should be due for review as the use of coal for power generation purposes was already due to decline significantly, [10] even before recent announcements about renewables replacing coal for generating purposes were announced [11]

4.3) Without strengthening rather than weakening safeguards against new opencast coal applications, this issue of planning applications for future opencast mines will continue to be the itch in the English planning system that will not go away. LAON maintain that there is already a fundamental incompatibility between protecting the level of amenity citizens should enjoy and the existing level of intrusion into that enjoyment already allowed, without sanctioning even greater levels of intrusion and loss of amenity.

5) SPEEDING UP THE PLANNING PROCESS AND ALLOWING REVISION OF SECTION 106 AGREEMENTS

5.1) LAON are opposed to these suggestions. LAON cannot speak about the way other planning applications are dealt with, but as far as the complex process of dealing with mineral planning applications is concerned, objectors play a vital role in improving the quality of successful applications as well as defeating poor applications. The level of scrutiny given by opponents to sizeable 1,500 page long submissions, often points out legitimate causes for concern based on local knowledge, which if not addressed, would mean approving applications which would have a detrimental environmental impact. The issue here may be more to do with the poor quality of the initial submission rather than the ‘bureaucratic delays’ often cited as the cause.

5.2) LAON does not agree with the proposal to allow a revision of Section 106 Agreements retrospectively to the benefit of the applicant for any mineral planning decision. These Agreements are the only forms of compensation available for the social costs that are imposed upon local communities, and these Agreements, we contend, never fully compensate local people especially those most directly affected, for these costs. If revisions were to be allowed then this would introduce a great degree of uncertainty into the final outcome of any planning decision and at the same time reduce trust in both the Planning and Government system.

6) THE IMPACT ON THE PLANNING INSPECTORATE AND THE LOCAL AUTHORITY OF SPEEDING UP THE PLANNING PROCESS

6.1) Mineral planning applications suffer from two other sources of delay. Firstly the length of time it takes for statutory consultees to respond to consultation requests. Secondly the length of time it takes applicants to consider valid objections and resubmit revised applications. If the Government wants to speed up the planning decision making process for mineral planning applications, it should not give the applicant unlimited amounts of time to respond to valid objections. The onus should be on the applicant submitting an application of sufficient quality in the first instance and not using the system to allow valid objections to become means by which the quality of the application can be improved.

6.2) If the applicant considers that there has been undue delay then they already have the right to ask for a Public Inquiry via the Failure to Determine an Application provision. We argue that because of the complex nature of such planning applications, that the time limits currently in operation are sufficient.

6.3) Increased use of the Planning Inspectorate and, we presume, the use of Public Inquiries, to speed up mineral planning decisions will reduce the ability of members of the public with local knowledge to engage in the planning decision process because of a significant increase in the cost of gaining legal representation that this may involve.

7) THE USE OF PLANNING PERFORMANCE AGREEMENTS AND GREATER POWERS TO AWARD COSTS IN PLANNING APPEALS

7.1) The emphasis in the NPPF to ‘front load’ the decision making process with prior agreements on some issues being decided on, can leave out of the decision making process the local people most likely to be affected if the application succeeds. Until the voice of local people is heard, they are merely treated as ‘receptors’, ghosts in the own locality.

7.2) New ‘front loading’ proposals raise the following questions

At what stage in the process is the proposed application to be considered a real application against which objections can be made?

At what stage is the applicant said to be under an obligation to fully inform those that live within 800m of the proposed opencast site that an application is pending?

7.3) Such questions are important, because only then are people able to assess the potential impact that such a proposal would have on their lives. Only then can they begin to assess, from scratch, what it means to begin to understand the planning process and possibly consider grounds for objections. This is also the stage in the process when house owners are supposed to inform prospective buyers that their house may soon be adjacent to an opencast mine. It is the point at which planning blight begins.

7.4) Problems then begin for the people directly affected by such a proposal. They enter a decision making process which is designed to eventually achieve a result of sustainable development favourable to the applicant – that is the stated default position. [12] Only then is the inherent bias in the process in favour of the applicant begin to become apparent.

7.5) Maintaining their valid opposition to the point of funding a hearing at a Public Inquiry, would cost them thousands of pounds. To then be presented with having to find the costs of the applicant, should they lose, would severely curtail the chances of taking the issue to a Public Inquiry.

7.6) However the main purpose of such a proposal we believe is to frighten mineral planning authorities into granting planning permission and stifle deeply held opinions as to why a particular proposal should not go ahead. This is illustrated by a statement made by a Northumberland County Councillor, who is reported as saying the following

"The dilemma we have here is if we refuse this, it will go to appeal and it will be approved, of that I’m sure. At that point, we lose all control of being able to negotiate the terms and conditions on road safety so I will have to vote for this as the least d amaging option " [13] .

This was said during the determination of another Northumberland opencast mine site at Well Hill Farm in the afternoon of August 8th, after the Halton Lea Gate decision had been made public in the morning.

7.7) LAON therefore argue that the real risk is that if the new proposed procedure was applied to mineral planning applications, it would encourage poorer quality applications to both be submitted and approved.

8) LOCAL AUTHORITIES ADJUSTING GREEN BELT LAND AREAS

8.1) LAON fear is that this measure, if approved, may make it easier for owners of land to offer to swap land which does not have commercially workable reserves of minerals and are not designated as Green Belt for land which does have commercially reserves of minerals including coal which are Green Belt. This would make it more likely that planning permission can be gained, as a less rigorous system of assessing the quality of the application would apply. For this reason we object to this proposal.

9) REVIEWING THE CATAGORIES OF COMMERCIAL AND BUSINESS DEVELOPMENTS WHICH CAN BE CONSIDERED INFRASTRUCURE PROJECTS

9.1) In Paragraph 156 of the NPPF it states that Local Authorities should set out the strategic priorities for:

".....the provision of infrastructure for transport, telecommunications, waste

management, water supply, wastewater, flood risk and coastal change

management, and the provision of minerals and energy (including heat);" [14]

The Secretary of State for Communities and Local Government 6th September statement included

" .... we now intend to review the thresholds for some of the existing categories in the regime, and also to bring new categories of commercial and business development into the regime - making it possible for such schemes, where they are of sufficient significance, to be considered and determined at a national level.   " [15]

9.2) If this result of this review is the removal of any local control over the development of mineral resources, including coal, from the remit of Local Authorities we would see this as evidence of a further attempt to stifle legitimate opposition to applications that, if accepted, could have a detrimental effect on thousands of people who we know live on or adjacent to England’s shallow coal field areas. This is again a cost issue, since we are presuming that that the decision would involve holding a Public Inquiry. The argument made above, at paragraph 6.3, equally applies here.

10) CONCLUSIONS

10.1) For these reasons LAON has reached the conclusion that if the proposals announced on the 6th September were approved for determining mineral planning applications that they would have a very severe and detrimental impact on people. They may also contribute to lower quality mineral applications being approved that would have a detrimental environmental impact.


[1] ‘Scottish Planning Policy’, ( The Scottish Government, 2010 ) , paragraphs 239-247 @ http://www.scotland.gov.uk/Publications/2010/02/03132605/0

[2] ‘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

[3] Decision Letter, Land adjacent to Halton Lea Gate Farm. Case Reference No APP/P2935/A/11/2164056, ( The Planning Inspectorate, 7/8/12 ) @ http://www.pcs.planningportal.gov.uk/pcsportal/CaseSearchResults.asp

[4] 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/

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

[4] http://www.environmentmagazine.co.u k /latest-news/1117-green-light-for-halton-lea-gate

[4]

[5] Halton Le Gate Campaigners seek Judicial Review’ (The Journal, 24/8/12) @

[5] http://www.journallive.co.uk/north-east-news/todays-news/2012/08/25/halton-lea-gate-opencast-campaigners-seek-judicial-review-61634-31694089/

[5]

[6] Personal communication sent to me by Simon Cook, Deputy Operations Manager, The Coal Authority, 20/12/10.

[7] “Visit to opencast sites tests out buffer zone”, ( The Journal, 3/11/10 ) @

[7] http://www.journallive.co.uk/north-east-news/todays-news/2010/11/03/visit-to-opencast-sites-tests-out-buffer-zone-61634-27589655/

[7]

[8] Planning (Opencast Mining Separation Zones) Bill, 2011 @

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

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

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

[10] ‘ CCS axe threatens the future of coal’ (Process Engineering, original publishing date 1/11/11, put on the web 12/9/12) @ http://processengineering.theengineer.co.uk/environment/1011005.article?

[11] ‘ Biggest English Polluter Spends $1 Billion to Burn Wood: Energy’, (Bloomberg, 26/9/12) @

[11] http://www.bloomberg.com/news/2012-09-25/biggest-english-polluter-spends-1-billion-to-burn-wood-energy.html?

[11] ‘RWE seek to extend the life of biomass- converted UK Coal plant’, (Reuters, 26/9/12) @

[11] http://www.reuters.com/article/2012/09/26/britain-coal-biomass-idUSL5E8KQ80Q20120926?rpc=401&feedType=RSS&feedName=rbssEnergyNews&rpc=401

[11] ‘UK and Ireland Install Underwater Interconnector Cable to Boost Wind Energy’, (Oil Price, 26/9/12) @

[11] http://oilprice.com/Latest-Energy-News/World-News/UK-and-Ireland-Install-Underwater-Interconnector-Cable-to-Boost-Wind-Energy.html

[11]

[11]

[12] “ Development that is sustainable should go ahead, without delay – a presumption

[12] in favour of sustainable development that is the basis for every plan, and every

[12] decision. ”, Ministerial Forward, The National Planning Policy Fram e work, p i, Op Cit

[13] ‘ Road fears cannot thwart mine plan’ (Morpeth Herald, 9/8/12) @ http://www.morpethherald.co.uk/community/local-information/road-fears-cannot-thwart-mine-plan-1-4818501 )

[13]

[13]

[14] The National Planning Policy Framework, op cit

[15] Housing and Growth Statement, Eric P ickles, Secretary of State for C ommunities and Local Government, 6/9/12, @ http://www.communities.gov.uk/statements/newsroom/2211838

Prepared 18th October 2012