In August 2008, North Yorkshire County Council approved Tarmac’s application to quarry Ladybridge East for the second time.
In a Judicial Review, it cannot be argued that a decision should be quashed because it was wrong, but rather that it was made in a manner which was improper or flawed. The claimant’s concern was with what evidence was brought into the decision making process – and what was withheld or not shown. Another grave concern was, and remains that, for as long as Tarmac quarried the setting of the Thornborough Henges, the company would continue to interfere with legitimate efforts to raise the profile of the surviving prehistoric landscape and that the County Council was not attaching due attention and diligence to the unique heritage of the Swale/Ure area.
Following the collapse of the NYCC’s Minerals and Waste Development Framework (MWDF) later in 2008, we sought information from the County Council, part of which was Landscape Character Assessments (LCAs) for the Preferred Areas. These were at serious odds with the advice in the Officers Report to the Planning Committee and Tarmac’s Environmental Statement. These were dated 07 and cost the County Council £19,500. The County Council is saying that these assessments are not material because they were produced for a MWDF which was abandoned and has not undergone inspection, however R (on the application of Kides) v South Cambridgeshire District Council and others, 9 October, 2002 (Court of Appeal). Paragraph 121 indicates otherwise: - "material considerations" ‘In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.’ Although the assessments were brief and not designed for the purpose of determining applications, they are nonetheless unbiased expert opinion which were used to bolster the County Councils case to refuse a permission.
To summarise our Concerns;
County Council Officers inferred that:
The Officers Report to the North Yorkshire County Council Planning and Regulatory Functions Committee dated the 26th of August 2008 C2/06/01616/CCC – Full Planning Application accompanied by an Environmental Statement for the extraction of sand and gravel and modification of Condition 2 of Planning Permission Ref: C2/92/500/53, Ladybridge Farm, Thornborough for Tarmac Northern Ltd (Hambleton Division) included several erroneous conclusions.
For years now there have been concerns regarding the cumulative effects on the landscape,
both from individuals, organisations and Statutory Consultees, the Officers Report stated: -
6.10 ‘The Countryside Agency – raises no objection in principle but has great concerns
regarding the change to landscape character……’
9.18 ‘A number of consultees have expressed concern with regard to the impact of the
workings and proposed wet restoration scheme on the landscape. Mineral working has
taken place in the vicinity of Nosterfield for a number of years and has led to a
patchwork of restored sites’.
The Report downplayed the character of the Landscape: -
9.20 ‘The landscape of Ladybridge Farm and the surrounding area remains an
agricultural landscape of large open fields. The area does not benefit from any
national or local landscape designation, but was within the area defined in the Hambleton District Local Plan (adopted in 1999) as being an area of ‘landscape
enhancement’ where it was considered that development can be used to bring about
improvements to the landscape. However, the Policy relating to this designation
(Policy L11) was not ‘saved’ under the Direction from the Secretary of State
in September 2007. The applicant contends that as a result of mineral working
at Ladybridge Farm, improvements can be made through the implementation of appropriate,
high quality restoration schemes’.
This assessment of quarrying at Thornborough was at odds with the (LCAs) for the area which show negative cumulative effects: - ‘Large areas of permanent standing water are out of character with the current landscape. Other quarries have been worked in the past to the SW of Nosterfield, further affecting local village setting and setting of Thornborough Henges’.
The (LCAs) and unambiguous written observations from English Heritage show that: -
Officers overplayed current restorations by stating in the report at paragraph 9.21 that the present quarry is designated as a Nature Reserve when it is not.
The Officers Report, at 9.23 it says that Hambleton has not complained about the effects of the proposal, but Hambleton hadn’t seen the LCAs. The character is agricultural; the LCAs say this, as do the Hambleton Planning documents.
The Defra report was dated 2006 which had the 2004 one attached to it. It advised that the loss of high grade land was not important in national terms. Since then the global situation has changed, a matter which the Regional Spatial Strategy (May 2008) advised to take that into consideration.
A senior representative of English Heritage, when hearing of the LCAs, said ‘Bearing in mind the controversial nature of the application, one would have expected the MPA to use the LCAs as evidence’.
If numerous objectors and Statutory Consultees had expressed concerns, as the report shows, one would have expected Officers to have left no stone unturned to find the evidence upon which they founded their claims, but instead of producing the evidence they chose not to.
There were many matters that could have been used to challenge the decision: setting, scale, landscape, biodiversity issues, cumulative effects, loss of agricultural land, Parish Plans not taken into account etc.
In the event it was decided: -
Ground 1: The extension was not ‘small scale’ under Minerals Planning Policy 3/4: -
“Outside preferred areas and areas of search, planning permission for aggregate mineral
working will normally only be granted for borrow pits and small-scale extensions
to existing sites.”
Ground 2: Setting
Ground 3: The Bird Management Strategy
Ground 4: The Environmental Statement. The June 2008 environmental statement was
deficient in failing to include a Bird Management Strategy, and the Officers Report
and subsequent decision of the planning Committee of 26 August were consequently
legally flawed.
Reflecting that, Policy 3/4 is as follows:
“Outside preferred areas and areas of search, planning permission for aggregate mineral
working will normally only be granted for borrow pits and small-scale extensions
to existing sites.”
The matter of what constitutes a small scale extension in geographical extent has not been properly resolved. To clarify the meaning of ‘small scale’, the criteria referred to by the Inspector in examining the policy are mineral quantity, working life, annual production and the geographical extent and scale in relation to the existing quarry area.
It is of great concern that the tonnage per hectare is very poor at Ladybridge and this is apparently not a consideration within the policy.
Like FoTH and the CBA, English Heritage expressed concerns: - ‘Whilst we continue to have reservations about the application site representing a small scale extension to the existing works we are content to leave clarification of this matter to the Mineral Planning Authority in line with relevant policy’.
FoTH maintains that a 33% extension to a 9 hectare site may be de minimis, but for instance a 33% extension of 200 hectares cannot be.
At Ladybridge the Officer Report advises: - ‘Geographical extent – the extended quarry area, that is the land take, equates to 33.6ha (31.7%) of the original 106 hectare permission’.
At the Judicial Review Ripon City Quarry was chosen as a precedent: -
'The Council’s decision is inconsistent with, and takes no account of, its decision
on the Ripon City Quarry that an increase in extraction area of 17.2 hectares
(35% of site area) for 850,000 tonnes of minerals was not a small scale extension.
This was based on legal advice (11th June 2002 committee report, para 6.2.6). We
have seen the legal advice (dated 22nd May 2002) which says that the Ripon City
Quarry increase is not ‘on any reasonable interpretation of the criteria cited in the
Local Plan “small scale”’. The Council’s legal advice was therefore that such an
increase could not be lawfully regarded as small scale'.<br>
‘The [Officer] report failed to refer to the Friends’ representations on the
Ripon decision, let alone enable councillors to evaluate the point’.
Further to that point, in the Brotherton Quarry decision in 2005 where a 10 hectare extension to a 42 hectare existing quarry was being sought was being sought, County Council Officers decided that ‘Due to the individual nature of mineral working, the Plan does not quantify the term "small scale" but indicates that proposals will be assessed against the criteria of mineral quantity, working life, annual production and geographical extent and scale in relation to the existing quarry area’. And ‘In my opinion these are material considerations which could justify the grant of permission, notwithstanding the scale of the proposal which, in my view, is marginal in terms of whether it may be considered to represent a small scale extension’. It is clear that on the matter of geographical extent alone those Officers did not think that 25% was ‘small scale’ regardless of the other factors.
If a 25% extension was considered marginal, the Ladybridge 32% is clearly 25% over that margin.
Part of the CC’s reasoning is that ‘To interpret Policy 3/4 otherwise would exclude all large quarries such as Nosterfield from consideration under Policy 3/4 thus restricting the flexibility that this Policy seeks to provide for all sites to have proportionate small scale extensions in appropriate circumstances’. Denying smaller quarry operators the opportunity to take a larger share of the market must be anti-competitive.
Our concern is exemplified in this expert planning and archaeological opinion from 2005: -
2.3.20 ‘Past destruction has been lamentable – including part of the central cursus,
the remains at Nosterfield Quarry, and ploughing – but it is clearly within the powers
of the planning authority to take these cumulative impacts into account on the current
application, as the application will further contribute to the destruction of important
archaeological remains if approved and damage the setting of nationally important
remains on the Thornborough plain’.
In August 09 Hickinbottom J based his Judgement that the ground 2 failed was based on false premises.
Permission to Appeal was refused by Sullivan LJ in November 2009 partly on the grounds that ‘there appears to have been no particularised suggestion that there would have been any other significant impact on the visual setting of the henges: e.g. “from point X on a footpath point Y of the henges would be adversely affected because the extended workings would also be in view”’ That summing up is wrong; it is based on Hickinbottom J’s Judgment of August 09 which was flawed (paragraphs 87-100). Hickinbottom J based his Judgement on the false premise that FoTH had not claimed expert opinion showing detrimental effects on the setting of the monuments; he wrote ‘The Friends contended that the impact of the extension on the setting for the henges was significant, on essentially “non-visual” grounds (see their representations of 0 July 2008, paragraph 2). However, that was an assertion that was misdirected (in that setting is a visual concept) and, perhaps for that reason, unsupported by any professional evidence’. FoTH always repeat expert opinion, as we did in the document to which he referred (which he clearly did not read properly). Many have commented, including Tanfield Parish Councilors, on the adverse impact on the setting of the henges when viewed from Well Bank, as have FoTH: Tarmac’s own Application shows that the impact on the landscape from that viewpoint will be ‘moderate to substantial’ - which must be ‘significant’. In his Judgement Hickinbottom J wrote ‘Therefore, all of the expert evidence was to the effect that the impact of the extension on the setting of the henges was not significant’.
Hickinbottom J correctly states that there is no statutory definition of ‘setting’, and clearly acknowledges that the approach adopted by PPG15 (in relation to listed buildings) is transferable to the setting of archaeological remains by stating the purely visual approach to setting of ancient monuments is supported by another High Court case: Revival Properties v Secretary of State [1996]. But such a conclusion is not warranted by that case (or any other case): the Revival decision was not concerned with defining all that ‘setting’ could be but that the extent (legally speaking) of setting in visual terms was wide to encompass that of the monument in question. However, if the revival precedent (PP15) was to be transferred to monuments and remains, then PPG15 offers much advice on the desirably of preserving certain features within the setting of, although not visible from the Listed Building.
One needs to look no further than PPG16 to see that policy makers have had more in mind than the purely visual when formulating archaeological policy. Paragraph 8 of PPG16 refers to the setting of archaeological remains, and is in fact in the part of the PPG dealing with the importance of archaeology. This is a term which is distinguished in the PPG from ‘monuments’ (especially ‘upstanding’ monuments, to which the PPG refers at paragraph 5); in the 1979 Act remains is defined to include ‘any trace or sign of the previous existence of the thing in question’. It would be difficult to conjure up a more abstract or all-encompassing definition than that. The point is that remains are not the same as a monument and errors are likely if, in planning cases with an archaeological element, one applies the concept of monument to setting when PPG16 is clearly aimed at something more comprehensive, namely ‘remains’. The concept of remains goes much wider than that of ‘monument’ and includes archaeology such as the henges, barrows/tumulae, and buried archaeological features such as those on the application site. How can remains which are buried have a setting in visual terms? They cannot and if PPG16 is to make sense setting must include more than visual considerations.
Below we have copied Hickinbottom J’s Judgement and highlighted sections for comment in yellow, and commented in blue font. He refers to Stephen Timms’ Witness Statement which is copied and treated in the same way below the Judgement.
Because of the errors in the Judgement it is noteworthy that ickinbottom J agreed to foreshorten the time he initially envisaged he would take over his deliberations in order to lessen the ‘pain and suffering’ claimed by Tarmac.
Case No: CO/1272/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24 August 2009
Before :
MR JUSTICE HICKINBOTTOM
Between :
|
The Queen on the application of Kimberley Miller |
Claimant |
|
- and - |
|
|
North Yorkshire County Council |
Defendant |
|
Tarmac Limited |
Interested Party |
Richard Harwood and James Burton of Counsel (instructed by Richard Buxton))
for the Claimant
Frances Patterson QC (instructed by North Yorkshire Legal & Democratic Services)
for the Defendant
Jeremy Cahill QC and Richard Kimblin of Counsel (instructed by Eversheds)
for the Interested Party
Hearing dates: 17-19 August 2009
87. Whilst not the focus of the main debates before me, the Claimant and other Friends of Thornborough Henges have a particular interest in this ground, as it concerns the henges and their setting.
88. Planning Policy Guidance Note 16: Archaeology and Planning (November 1990) states,
in paragraph 18 that:
“The desirability of preserving an ancient monument and its setting is a material
consideration in determining planning applications…”
Paragraph 27 continues:
“Where nationally important archaeological remains…and their settings are affected
by proposed development they should be a presumption in favour of their physical
preservation i.e. a presumption against proposals which would involve significant
alteration or cause damage, or would have a significant impact on the setting of
the visible remains.” (emphasis added)
89. ‘There is no definition of “setting” in this context, but it was common ground before me that it is a matter of judgment to be determined in visual terms, with regard being had to (i) the view from the monument towards the development ii) the view from the development towards the monument and (iii) any other relevant view which includes both the monument and the development (an approach adopted in Revival Properties Ltd v Secretary of State for the Environment [1996] JPL B86). In other words, the setting of a monument has to be considered “in-the-round”’. The matter of non visual setting was not contested; the matter was that the Members of the Planning Committee were not advised that they needed to take an overview of the whole site.
91. Mr Harwood submitted that the report failed correctly to advise the Planning Committee to consider setting in-the-round - it restricted itself to views from the henges - and the suggestion was that both English Heritage and the Council’s own Countryside Service Heritage Section considered there to be no effect “as” (i.e. because and only because) the site would not be visible from the henges at ground level. That, he submitted, would have led the Committee to leave out of account consideration of views from the site to the henges, or of both site and the henges from elsewhere, all of which were material to setting. English Heritage did not refer to inter-visibility in its letter dated 1st July 08. Of interest, regarding the ‘scale’ of the extension, EH express concerns twice in the letter.
93. First, the extract above from paragraph 10.14 of the POR must be seen in its proper context. Tarmac carried out a comprehensive assessment of setting, the results of which were set out in the June 2008 environmental statement (at paragraphs IV.133 and following). The extensive field work was supplemented by a computer-based exercise, the results of which were set out in the report of Mike Griffiths and Associates Ltd, expert archaeological assessors retained by Tarmac. That assessment did expressly consider, in some detail, (i) views out from the monument towards the site, (ii) views out from the site towards the monument and (iii) views from the side including the monument and site. The Environmental Statement does not state this. Those results are summarised in the environmental statement, which concludes (at paragraphs IV.137 and IV.140) that:
“… there will be a negligible impact on the setting of the schedule of ancient monuments on Thornborough Moor… The revised application will therefore not have a significant impact on the setting of the Thornborough Henges or other scheduled monuments and listed buildings in the area”.
94. Second, Mr Bob Sydes (of the Council’s Heritage Section) also considered that
there would be no significant impact. In his memorandum dated 7 December 2006,
he indicated that the Friends of Thornborough Henges’ objections on setting grounds
were misconceived, because they relied upon non-visual matters and setting was a
visual concept. Sydes memo 7 Dec 08: - Archaeological Setting.
‘The Friends
of Thornborough object on the grounds that the application area falls within the
"non-visual" setting of archaeological remains of national importance. In planning
terms setting is a visual concept, although in archaeological terms, buried remains
can and do form part of the setting of a landscape, although this is not yet
recognised in planning case law’.
It is recognised in the various conservation plans, Draft PPS15 , PPG15 and EH advice.
He considered there was any adverse impact of the development on the henges’ setting
was “insufficiently significant or adverse to warrant refusal of permission”,
and that there were “no archaeological grounds for refusing this application”.
Setting was also raised with Mr Sydes at the 29 August 2008 Committee Meeting,
where he said that, although the impact “can be seen as significant”, it was his
opinion that it was not significant. Which is it then? His view (that any impact
on setting was not significant) accorded with that of English Heritage, a statutory consultee. Mr Stephen Timms (an archaeologist with Mike Griffiths and Associates,
who had performed the assessment to which I have referred) was also of the view
that there was no significant impact. Therefore,
all of the expert evidence was
to the effect that the impact of the extension on the setting of the henges was
not significant. Dr Harding is considered a ‘specialist’ by the County
Council: - News Communications Unit, County Hall, Northallerton www.northyorks.gov.uk
Henges conservation plan for public consultation
‘The group consists of landowners, representatives from local parish councils and
interest groups, including the Friends of Thornborough, as well as representatives
from national organisations such as English Heritage and specialists such as
Dr Jan Harding from Newcastle University’.
The Yorkshire Archaeological Trust and the council for British ArchaeologyAT and
the CBA are specialists too, particularly the former who are listed as government
consultees, they disagree.
An assessment of the cumulative effects was not made, but this is a requirement
under MPS2 and EIA – an addition of 25ha of water to the 70ha or so adjacent,
is cumulative, significant and negative – as evidenced by other consultees and
Landscape Character Assessments commissioned for the County Council’s Minerals
and Waste Development Framework.
95. Third, the Planning Committee members would have had their own knowledge of the area.
A Member of the Planning Committee when contacted later said that Members were not taken to a point where they could take an appropriate overview of the setting of the monuments.
Yes, members had knowledge, but it was one sided and had been spoon fed over the years. In a letter to the CPRE the NYCC’s head of planning said that ‘Indeed the Members of the Planning Committee were very impressed when they undertook a site visit to both Marfield and Nosterfield during the summer and met field personnel’.
Further the Member contacted remembered clearly having the benefits of shallow water impressed upon him, therefore he expected that to be a key element of the restoration on: - 2008 Application, The Restored Site – Habitat Distribution ES II.61. The proposed habitat distribution on final restoration is shown on Drawing LO93016-D. The predominant restoration land use would be open water of varying depths with particular emphasis on the development of shallows,
When asked to comment on the lack of interest in an archaeological conference
on the henges organised by the Council for British Archaeology, County Council
leader John Weighell, (on the general question of the conference being attended
by members who would be called on to make important decisions), said: "If they
are briefed too much, members like those on the planning committee could put
themselves in the position of having to declare an interest under the rules by
which we have to operate today."
In addition, at the Committee meeting, they were
shown photographs to put the
discussion at that
meeting in context. The Planning Committee was not shown a photograph of an
appropriate overview. At the meeting, the Committee members were told in
terms that, “It is almost impossible to see the henges from the quarry
or vice versa” (Stephen Timms First Statement, 21 February 2009,
paragraph 22). Here Timms refers to assessments in the 2005 Application
which were not before the Committee in 08.
Furthermore, Mr Sydes expressly
told the meeting that he agreed with Mr Timms’ assessment, which was based
upon all relevant views. That advice was given of a full and proper appreciation
and interpretation of setting. It was not pointed out that areas out of sight
of monuments can be part of setting and that a view from the side showing the
hidden area is part of the consideration of setting. (See comments on Timms’
statement immediately below regarding being shown an inappropriate image)
96. Of course, lay persons can have an opinion on setting. Agreed, that is part of landscape assessment. The Friends contended that the impact of the extension on the setting for the henges was significant, on essentially “non-visual” grounds (see their representations of 20 July 2008, paragraph 2). FoTH did not say that, see note 6 and 7 of FoTH’s representations referred to. However, that was an assertion that was misdirected (in that setting is a visual concept) Setting is not only a visual concept, it is none visual too. See letter from Steven Bee (link to letter?), the concept adopted in PPG15, Hadrians Wall plan and now made clearer in Draft PPS15. and, perhaps for that reason, unsupported by any professional evidence. FoTH refers to professional evidence where it comes to archaeological and landscape matters. Although others had made representations on landscape context (the Council for British Archaeology, the Yorkshire Archaeological Society, Heritage Action, a Senior Lecturer in Archaeology and several individuals), the Claimant does not suggest that any of this amounts to professional evidence as to setting in the relevant sense. Yes we do, See note 6 and7 of FoTH’s representations. Harding is acknowledged by the CC as being a ‘specialist’. Because setting is a visual concept, particular views have to be considered. That is exactly what the professional advice obtained did. The professional advice in the Landscape Character Assessments referred to above observed detrimental and cumulative effects. In the event, there was no professional advice that the impact on setting would be significant: all such advice was that it would not be significant. Landscape Character Assessments showed ‘high negative’; the Countryside Agency complains of ‘a sea of lakes split by roads’.
97. There had been an earlier concern, in relation to the refused 2004 Application, that the setting of the henges would be affected: but that concern was alleviated by a restriction on the extent of the site in the 2006 Application. English Heritage referred to the setting of the henges in the earlier more extensive Application, but curiously did not refer to ‘setting’ in the 2008 one. It is unclear as to whether or not it has a remit to comment on setting at some distance from Scheduled Ancient Monuments, if that is the case then the matter should have been down to the County Council’s own expertise (and the advice it had in the form of Landscape Character Assessments).
Paragraph 10.14 has to be read in context: in the light of the fact that the Committee would have been aware of that earlier concern.
99. But, in any event, even if, contrary to my firm view, the Committee did not consider the issue on the correct legal test, on the basis of the evidence before it, I am confident that its decision could not sensibly have been different. In relation to setting, at the 26 August 2008 meeting, the Planning Committee had before it all relevant evidence. There was no professional advice that the development would have any significant impact on the setting of the henges. That advice was based upon consideration of all relevant views. It was tested at the Committee meeting. The Friends’ representations were wrongly focussed. Even now, the Claimant has not put forward any compelling evidence that setting would be significantly affected by the development: nor any particularised submission to that effect. Again this proves he did not read the documents, otherwise he could not have written this.
100. For those reasons, Ground 2 fails.
IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
CASE NUMBER:CO/1272/2009
Between Kimberley Millar and North Yorkshire County Council
Interested party Tarmac Ltd
FIRST WITNESS STATEMENT OF STEPHEN ALAN TIMMS
21 February 2009
I, Stephen Alan Timms will say as follows:
Ground 2- That NYCC made an error of law and failed to have regard to material considerations by construing the settling of the Thornborough Henges as solely concerned with views from the Henges rather than including views from the application site to the Henges and the views of the quarry and the Henges
2.3.17 ‘The Stonehenge WHS Management Plan includes in the setting of that monument: the different regard in prehistory of areas around ceremonial monuments and beyond (where settlement beyond the monument is needed to support those involved in the ceremonies), and the concentration of sites with grave goods in vicinity of Stonehenge. These considerations are in addition to views of Stonehenge and views from Stonehenge, in the latter case meaning views from the monument to other archaeological sites, e.g. burial mounds sited on distant ridge lines (Part III, 3).
The Hadrian's Wall WHS Management Plan provides that as well as ‘visual setting’ the Setting (of the WHS) ‘was also seen as a suitable area for the targeting measures for positive landscape management to maintain and enhance the landscape of the WHS. It should also be considered that the Setting contains the archaeological context within which the Wall was built and adapted, including intact historic landscapes of both pre- and post-Roman date’ (page 45, paragraph 2.3.1)’.
Apparently, the plans of views from the application site are missing from the evidence supplied for the Judicial Review, because these views are not referred to, i.e. Plan No 22.
The plans he refers to are in a document dated 2005 for a rejected application, which was not before the Planning Committee in August 08.
The relevance of the Atkins figures
Over the years EH’s stance has shifted considerably. On the 15 May 2003 English Heritage Advisory Committee (EHAC) was very much concerned about the effects of extraction on setting, it advised : ‘Thornborough Henges (HSLAC 2001/10) 9.5 The focus of debate about this group of henge monuments had changed from interpretation and promotion to protection of their settings from the impact of gravel extraction in their vicinity’ - to which there is no contrary advice prior to the 23rd February 09 (see email below), or later for that matter. In 2004 at another EHAC Meeting ‘It was noted that the landscape (leached of its archaeological content) could not be returned to its original appearance; slight fluctuations in the topography could not be restored, whilst the creation of a lake after proposed extraction at Ladybridge Farm and around the southern henge would be a radical departure’ , but by 2009 EH was implying that setting was a lesser consideration than remains, and that no threats remained to the landscape except for deep ploughing around the henges. Those revised views are wrong. For instance even Natural England’s advice states not to have trees cutting views of monuments and tree roots damaging remains ‘with a particularly important historic landscape around Thornborough Henges’ and ‘avoid planting on or near archaeological features, and avoid obscuring historic landscapes’ - ‘Issues considered included whether planting would obscure or damage historic sites, or whether it would affect the setting or integrity of a historic site. It is important to note that historic remains are extremely widespread and many have not been fully recorded’. In responses to Consultations at Thronborough, EH has not commented on these matters, even though roots are clearly tunnelling into internationally importanty remains and permanent screening trees are cutting views as a result of mineral Permissions.
Deep cultivation continues farther afield than the immediate vicinity of the henges, this is largely unnecessary and costly; it amounts to wrecking tactics. Tarmac uses the argument that if it doesn’t destroy and record the archaeology through extraction it will be destroyed by ploughing. Reference is made to the ‘factor of minerals hope value at Thornborough’ in EHAC minutes Feb 06.
Bear in mind the following extract from EHAC minutes:
EHAC 15 May 2003: - 9.5 ‘The focus of debate about this group of henge monuments had changed from interpretation and promotion to protection of their settings from the impact of gravel extraction in their vicinity’.
EHAC 8 JANUARY 2004: - 8.2 ‘Members affirmed the enormity of the site’s archaeological significance. The northern henge was possibly the best preserved of its kind in the UK. As a group, comparisons of size and importance could be made with the landscapes at Cranborne Chase and Stonehenge. The three henges were outside the area proposed for mineral extraction and were some distance from Ladybridge farm, and so would not be likely to suffer direct physical damage as a result of the proposals. However, evidence relating to the henges in time or space very probably would be damaged, and the extraction proposals were emerging in a context where understanding of the deposits, the evolution of the ceremonial landscape, and the palaeo-environmental significance of the neighbourhood were all subject to large uncertainties. The impact of the proposals on the archaeological environment and on the setting of the henges would be substantial. It was noted that the landscape (leached of its archaeological content) could not be returned to its original appearance; slight fluctuations in the topography could not be restored, whilst the creation of a lake after proposed extraction at Ladybridge Farm and around the southern henge would be a radical departure’.
EHAC 3 February 2006: - 7.8 ‘Members were extremely concerned about the piecemeal approach to what they considered an exceptional landscape and which had resulted in its gradual eating away’.
On the 23rd February 2009 EH was asked: - ‘If EH had the Landscape Character Assessments and the present Application (BMP) to consider in July last year, both of which were available then, is it likely that EH’s recommendations would have been different to the ones made’?
EH responded ‘It is unlikely that our response would have been different as the revised application continued to address our primary concerns on the nationally important archaeology by omitting the area to the south of the application’ This stance is inconsistent, for instance, why comment on setting (without actually mentioning the word) in 2008 if it didn’t really matter?
One would have thought that ‘setting’ should be of equal concern to the ‘primary’ one of archaeology (remains). ‘Setting’ should be of equal concern; on the 3rd February 2006 EHAC Members patently thought it was. ‘A broader vision was needed to make the landscape meaningful. The Thornborough area was thought to be a stunning example of a prehistoric and later landscape which includes several scheduled monuments and other distinctive landscape features. Not enough had been done to make people aware of its magnificence and outstanding importance’. And ‘EH considers that the archaeological deposits discovered in the southern portion of Ladybridge Farm are of national importance and are further convinced that the larger archaeological landscape is also of national importance’ etc.
PPG16 confers equal protection for remains and setting: - PPG16 Paragraph 8, bold as in the original: ….. ‘With the many demands of modern society, it is not always feasible to save all archaeological remains. The key question is where and how to strike the right balance. Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation…………….’
(Paragraph 27): … ‘As stated in paragraph 8, where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation in situ i.e., a presumption against proposals which would involve significant alteration or cause damage, or which would have a significant impact on the setting of visible remains.’
Further to this point, in a letter to NYCC ref P00034158 Notifications under Circular 01/2001 & GDPO 1995 16th April, 2008 EH advised: - ‘We have received amended proposals for the above scheme, English Heritage is the Government's statutory adviser on all aspects of the historic environment including historic buildings and areas, archaeology and the historic landscape and has a duty to promote public understanding and enjoyment’.
And EHAC Minutes Friday 3 February 2006: -
‘EH considers that the archaeology and the landscape are nationally important and therefore, by extension, also at Ladybridge Farm. The Farm cannot be separated from the
monuments’.
The LCAs, the Countryside Agency, the County Council’s Principal Landscape Architect (cf Upsland Officer Report to Planning Committee 26th May 2009) local and wider opinion confirms the landscape and setting of villages and monuments have been adversely affected by mining.
To demonstrate an example of further inconsistency in EH’s approach, in its June 05 response to the Ladybridge Application (relating to the earlier, larger, proposal) attention was drawn to the accumulated bodies of water: - ‘Although the Conservation Plan currently being produced for the Thornborough landscape will consider setting issues in detail, the proposed after-use of the site as a body of water (comprising one large and two smaller units) would significantly affect the visual setting of the henges from the air, from the top of the henges (which may become accessible to the public) and from important viewpoints north east of Ladybridge Farm and from the Well / West Tanfield road’.
In January 06:- ‘English Heritage further advises that the proposed after-use strategy is an inappropriate landscape treatment with regard to the setting of the monument complex, particularly with regard to the accumulated impact of another body of water on the visual setting of the henges’.
But in July 08, ‘The proposed reduction in the extraction area has a concomitant reduction in the extent of standing water areas - which is welcomed by English Heritage. However, the Environmental Statement makes much of the benefits and enhancement of bio-diversity (particularly in the peripheral areas and in the wider landscape) but does not make the connection between these improvements and the greater benefits which would gained by amalgamating natural and cultural themes and interpretation. Making this connection would provide a more robust framework for after-use proposals. English Heritage accepts the landform model presented by Tarmac Northern Ltd to the effect that there is a higher landmass surrounded by wetland which would have been heavily exploited and used: a model that has been clarified by fieldwork. The reduction in scale and extent of standing water and its replacement by smaller units of water and wetland (to the north of areas previously proposed for wetland restoration) and the sustainable management of the area to the south of the extraction zone, will aid the presentation and interpretation of the prehistoric landscape without the philosophical problems now associated with ‘recreation’’. (Our emphasis on above three paragraphs)
There are important points here: -
The Bird Management Plan (available in 2007) indicated that the restoration would be much ‘harsher’ than the one shown in the Application documents, with steep sides and little by the way of shallows. The restoration will not aid interpretation, but give a false impression. That is why it was suggested to EH that it should have been a consideration in the email to EH dated 23rd February 2009.
Defence Estates’ letter dated the 29th August 06 is of particular interest because the planting of reeds would have softened the visual effects of the restoration: -
b) ‘A site specific bird management plan being incorporated into a section 106 agreement. This must include all of the conditions outlined in my letter of 19 July 2005 and naming Starling as one of the species to be managed.
This is because the species of reed to be planted (Phragmites australis) will be vulnerable to the development of a Starling roost’.
Tarmac’s 2006 Application showed: - ‘Reed Beds Planting 0.0 - 1m depth of water Common reed (Phragmites australis)’. The 2008 Application doesn’t refer to australis on Ladybridge, but does refer to the benefits and extent of reed beds. The 2007 Application refers directly to australis.
Similarly, in 19 July 2005 Defence Estates advised: - ‘b) The water should be as deep as possible and the bank sides as steep as possible to minimise the aquatic diversity of the water body (to help to reduce any exploitable feeding opportunities for many 'hazardous' species)’. Again this is the opposite of what the Planning Committee (and other Consultees) were given to decide upon which was gently sloping sides with reedbeds and shallows. We think it’s a fundamental point that some Officers and obviously Tarmac knew all about the condition about the reeds, yet allowed the Planning Committees to think otherwise.
When these conditions are met, and the BMP largely complies with DEs’ conditions, then we will be left with a steep sided water filled hole in the ground which will neither fit into the existing landscape nor help ‘interpret’ the prehistoric landscape.
EH and the County Council quote the EU Landscape Convention to support their strategy on landscape; the document is about landscape character and the effects of development upon it: EH, the Convention, and all relevant government guidance advises the use of character assessment, but here, where it could have been used to bolster a case, EH is apparently saying it wouldn’t have made any difference because it is not particularly bothered about the loss of landscape character and setting. It is of particular concern when the LCA’s referred to earlier were used by the County Council to strengthen its opposition to the Upsland Application when it is both further away from the henges than Ladybridge and out of sight of the henges.
To demonstrate our point on setting, we quote elements concerning a recently rejected planning application for wind turbines near the Duddo stone circle, Northumberland, where it was decided that even temporary adverse impact on the setting of a monument was unacceptable: -
Secretary of State decision letter extracts Ref: APP/P2935/A/08/2078347;
APP/P2935/A/08/2079520;
APP/P2935/A/08/2077474
Appeal C: made by Npower Renewables Ltd against the decision of the Council to refuse planning permission for the erection of 7 wind turbines, together with associated infrastructure and services at Land at Toft Hill to the south west of Grindon in accordance with planning application reference 06/B/1001 dated 31 October 2006.
16. ‘ The Secretary of State has had regard to the Inspector's comments in respect of the Duddo Stone Circle SAM at IR338-349. He agrees with the Inspector, for the reasons she gives at IR344-346 that the site of Appeal C is well within the setting of the Duddo Stone Circle (IR346). He also shares the Inspector’s view that the proposed windfarm would have a significant adverse impact on the setting of this SAM (IR348) and that the scheme would conflict with national policy in PPG16 and also with LP policy F26 and with RSS policies 16 and 32 (IR349)’.
20. ‘The Secretary of State has carefully considered the other matters raised at the Inquiry. He agrees with the Inspector's reasoning and conclusions in relation to grid connections (IR381). Given the very considerable life-span of the schemes, the Secretary of State does not consider that the reversibility of the schemes is a matter which weighs in their favour. He has not taken account of the possibility identified by the Inspector (IR380) that future planning permissions might be granted, allowing the turbines to remain’.
24. ‘In the case of Appeal C, the Secretary of State agrees with the Inspector's balancing of factors at IR393-395. Like the Inspector, he considers that the harms of the Appeal C scheme would outweigh the benefits, principally because of the significant adverse impact that the turbines would have on the setting of the Duddo Stone Circle SAM. In common with the Inspector (IR349 and 395) the Secretary of State attaches substantial weight to the harm which Appeal C would cause to the historic environment. He also shares the Inspector’s view (IR395) that, as the scheme would be located where environmental impacts could not be satisfactorily addressed, it would be contrary to Key Principle (i) of PPS22’.
30. ‘In the case of Appeal C, as set out at paragraph 24 above, the Secretary of State attaches substantial weight to the significant adverse impact this scheme would cause to the setting of the Duddo Stone Circle SAM. He has also concluded at paragraphs 16 and 24 above that the proposals are contrary to RSS policies 16 and 32, LP policy F26, and national policy in PPG16 and PPS22. He concludes therefore that the scheme would conflict with the development plan and he has found no material considerations of sufficient weight to justify his determining this appeal other than in accordance with the development plan’.
Appeal C
34. ‘The Secretary of State hereby dismisses the appeal and refuses planning permission for the erection of 7 wind turbines, together with associated infrastructure and services at Land at Toft Hill to the south west of Grindon in accordance with planning application reference 06/B/1001 dated 31 October 2006’.
Inspector's Report extracts by Ruth V MacKenzie BA (Hons) MRTPI.
Report: APP/P2935/A/08/2078347; APP/P2935/A/08/2079520; APP/P2935/A/08/2077474
21. ‘The Duddo Stone Circle stands on the top of a small knoll. It consists of 5 stones, about 2m high, and it is thought to have been built about 4000 years ago. The whole wind farm would be clearly visible from the stone circle. The nearest turbine would be about 1.7km away to the west’.
341. ‘In my view, the stone circle has high evidential, historical, aesthetic and communal value; the 4 categories of “value” set out in English Heritage’s Conservation Principles (page 28, CD14.4). [47,169]’
English Heritage’s Conservation Principles. Policies and Guidance for the
Sustainable Management of the Historic Environment
Consider the contribution made by setting and context
76 ‘‘Setting’ is an established concept that relates to the surroundings in which a place is experienced, its local context, embracing present and past relationships to the adjacent landscape. Definition of the setting of a significant place will normally be guided by the extent to which material change within it could affect (enhance or diminish) the place’s significance’.
77 ‘‘Context’ embraces any relationship between a place and other places. It can be, for example, cultural, intellectual, spatial or functional, so any one place can have a multi-layered context. The range of contextual relationships of a place will normally emerge from an understanding of its origins and evolution. Understanding context is particularly relevant to assessing whether a place has greater value for being part of a larger entity, or sharing characteristics with other places’.)
THE CASE FOR NORTHUMBERLAND COUNTY COUNCIL (summarised para 47 -57 of the report, including detailed consideration of archaeology).
49. ‘The 7 turbines at Toft Hill would radically alter, and adversely affect, the experience of visiting the Duddo Stone Circle. When approaching on the footpaths from the north and south, the prominence of the turbines would increase as the stones got nearer. From the stones there are views across the Tweed Valley to the north and north west, views of the Eildon Hills to the west, and views of the Cheviots to the south and south west’.
53. ‘The Council’s views about the harm to the setting of the stones are corroborated in a report by Professor Richard Bradley (CD14.18), an academic who is widely recognised as the leading expert in the UK on Neolithic and Bronze Age monuments. Further support comes from English Heritage’s policies and guidance in Wind Energy and the Historic Environment (CD14.2), Climate Change and the Historic Environment (CD14.3) and Conservation Principles (CD14.4). Wind Energy and the Historic Environment advises that consideration should be given to the reversibility of developments, but it does not advocate the approval of all developments simply because they are reversible’.
54. ‘Npower decided to press ahead with its proposal regardless of the conclusion in its own ES (Chapter 11, CD7.3) that there would be a significant adverse impact on the setting of the stones. Npower later commissioned a report, The Setting of Duddo Stones (CD4.7). The report contradicted the conclusions in the ES by arguing that the setting of the stones was extremely limited and did not extend as far as the Toft Hill site. This change of view, and the inconsistencies in the evidence given by Npower’s cultural heritage witness, does not inspire confidence’.
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On the 3rd of September 09 Dr Simn Thurley, EH’s Chief Executive, was asked to comment on the August 09 Judgement, because it was clearly wrong: -
‘As you will see, it flies in the face of all advice on setting and sets a dangerous precedent; which is most surprising because the judge had before him Steven Bee’s advice on setting. There are about a dozen factual errors in the Judgment, but I am most concerned about his assertion that setting is only a visual concept.
I would be grateful therefore if either you or another member of EH could comment, as soon as possible, not on the decision itself; but on the rationale in reaching it, and clarify EH’s position on the matter’.
On the 18th of September Dr Thurley replied: -
‘Thank you for your email of the 3rd September regarding the outcome of the Judicial Review at Ladybridge Farm, Thornborough, North Yorkshire.
The concept of setting, as enshrined within legislation, has been the matter of considerable debate within the historic environment sector. As set out in Steven Bee’s letter to John Lowry in March 2008, which you refer to in your email, there is still no formal definition of setting. But English Heritage (in connection with the draft Planning Policy Statement 15 – now out for consultation) has been working towards the publication of guidance on this subject. However, this piece of work has not yet been concluded, and it will not be completed until the consultation of the PSS has ended and a final draft has been prepared.
English Heritage is content with the decision made on this application. It would not be appropriate for us to express any detailed views on the Judgement.
Yours sincerely’,
Dr Simon Thurley
Quite where this leaves English Heritage’s strategy for the conservation of this archeologically significant area remains to be seen.
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Bird Management Plan and concomitant implications for the landscape setting of the henges. The main consideration in the decisions made over the years at Ladybridge was ‘did the value of the mineral plus the after-use outweigh the damage caused to landscape, higher grade farm land, archaeology and the setting of monuments etc, in a historic landscape singled out as being of special interest in the Regional Spatial Strategy ? The after-use was said to be so good that it did, although it was said by Officers that there was an inconsistency between attracting birds into the site and then having to discourage them on military bird strike grounds.
According to expert opinion on BBC Nature, nature reserves have a role. They help over-winter bird survival, but they might not be as helpful in the breeding season if there is no breeding habitat. Where do they go to breed when the site has been specifically designed to stop breeding? They bring birds into breeding condition, but they have nowhere to go. It is stated that the bigger the reserve the better, but no matter how big it is, if it is specifically designed to discourage certain birds this must apply.
The conditions on August’s permission stated that there should be a Bird Management Plan (BMP). We claim that County Council Officers were aware of the BMP and were concerned about its effects on landscape and biodiversity, but did not insist that it should be a material consideration put before the Planning Committee. An earlier version of the BMP had been seen by Officers in 2007, and the later version was dated April 2008, prior to the Planning Meeting in August 2008. Great concern was expressed in County Council internal memos about the effects on landscape and that the after-use would not achieve the benefits to nature conservation proposed. Much later, in April 2009 the Principle Ecologist decided that ‘I am generally satisfied with the bird management strategy (BMS). There are still some areas of potential conflict between this strategy and the nature conservation restoration, particularly in terms of water depth and shoreline treatments’. The visual effects ‘water depth and shoreline treatments’ to which the Principle Landscape Architect expressed alarm earlier, was apparently not considered material later.
At least two Members of the Planning Committee raised concerns about the dichotomy of the benefits of bringing birds into the area to feed and breed and that of having to prevent birds flocking and risking bird-strike. At one Planning Meeting a Senior Minerals Officer spoke for a few minutes on the matter and agreed there was a dichotomy, but said it would all be sorted out later as part of the S106 agreement.
If the BMP and the Landscape Character Assessments had been available at the relevant times the decisions would have been different.
To explain FoTH’s concerns in more detail, it is necessary to refer to the Application of 2004 where Defence Estates set out its criteria for bird control, and then much later the publication of the BMP which says it will discourage the BAP priority birds which the application sought to attract. This plan was available in April (dated April 08) and should have been shown in the Application (Dated June 08) and considered by the Planning Committee in August 08. The Applicant states in all of its Applications that the MPA has been consulted throughout, and indeed, this is recommended procedure. An earlier version of the BMP was available in 2007 and had been received with consternation by Officers, why then didn’t someone say ‘hadn’t we better let the Planning Committee see the BMP’.
The quashed 2007 Permission states "The GRANT OF PLANNING PERMISSION shall be subject to a section 106 legal agreement to cover the following matters:
(e) Bird Management Plan."
At the Planning Meeting of the 16th January 2007, the after-use of attracting local and national Biodiversity Action Plan bird species onto the restored quarry and landscape enhancement was said to be good, although it was recorded by Officers at the Meeting that there was a contradiction between attracting birds into the site and then having to discourage them on military bird-strike grounds. The 2007 permission stated that there should be a Bird Management Plan (BMP) as part of the S106 agreement. Members of the Planning Committee expressed concerns over the contradiction of attracting birds on the one hand and deterring them on the other.
FoTH did not raise the matter as an objection because they had taken advice that it was feasible, through passive means, to deter ‘hazardous’ birds whilst allowing for good numbers of other species. The expert advice was that, to achieve this would need subtle handling of the local environment. Note that the applicant's approach was not subtle, it did not consult experts who may have helped, and it adopted a policy to shoot the birds and deter them by steep quarry sides and no shallow water.
Shooting birds is what the land owners do for their recreation and financial gain.
The Minerals Officer reported verbally to the Committee that there was a dichotomy, but it could be worked around to satisfy the requirements of DE and the after-use proposal.
On the 26th March 2007 a Draft S106 was submitted to the County Council. This occasioned the comments in the memo dated 26th March 2007 from the Principal Ecologist to the Environment Manager on the proposed Bird Management Plan (Note that this was not the actual BMP, only reference to some of what the BMP should include.) : -
……. ‘This could result in more significant gains for nature conservation and I feel that we should push this to the absolute limit, as some of the bird management procedures can be diametrically opposed to the other natural environment objectives we are trying to achieve. Why is the timing for the Bird Management Plan different to that of the other plans? This plan should be prepared in conjunction with the other plans so that it can be sensibly applied to the site’……………
On the 3rd October 2007 the S106 agreement was signed by all parties without the inclusion of the BMP.
Following the signing of the s106 agreement, pursuant to paragraph 6.1, Schedule 2 of the agreement signed on 3rd October 2007, the BMP dated the 31st July was submitted On the 21st November 2007 to the County Council for consideration. The BMP recommended steep sides, deep water and no shallows for the lakes and active bird control measures including egg oiling and shooting. The plan stated at 2.2.6 ‘Where appropriate, the provisions outlined in this document would be applied to the restoration and long term management of the Ladybridge Farm Extension site’.
Note the BMP referred to Ladybridge only.
On 5 December 2007 the County council was issued with a Judicial Review Pre-action protocol letter based on FoTH objections.
These were, briefly...
On the 11th January 2008 the County Council conceded that the decision on this application issued in October was unlawful.
There was no further consideration of the BMP. (Except that there is an overlap between the CC conceding and the Memo dated 29 January 2008 below.)
On the 17th January 2008 the County Council signed the consent to Judgment order.
On the 25th January 2008 Eversheds (Tarmac's solicitors,) signs consent to Judgement order.
On the 29th January 2008, referring to the Bird Management Plan, an internal NYCC memo dated 29 January 2008 was sent from the Principal Ecologist to the Heritage and Environment Manager: -
In April 2008 Glen Kemp consultants produced a Bird Management Strategy Tarmac - confirming the "shoot the birds" plan, but worse - retrospectively attempting to extend it to the Nosterfield Quarry which already had an approved after-use of nature and recreation - so this required annulling the agreed terms but no application was made to do this.
On the 11th of June 2008 Tarmac submitted a further Ladybridge application and it was sent out for consultation. A "Shoot the birds" BMP was not shown within the application, neither was it mentioned that a plan had existed - any reference to a bird management strategy implied that it would be worked out later. BUT NYCC was aware of the 2007 "Shoot the birds" BMS as applied to the previous application. Whilst this did not come to the fore due to the quashing, they cannot deny awareness of its existence. Under 1.32 NYCC argue that "Since the application is essentially a re-submission" no further consultation is necessary, and "shoot the birds" is slipped under the wire again. This material consideration which was an essential part of the EIA was not picked up by the statutory consultees and was not presented to the public for consultation or the Minerals Planning Committee for consideration. This led to the decision on 12th June 2009 by NYCC to allow development to commence.
The April 2008 BMP stated: - 2.2.6 ‘Where appropriate, the provisions outlined in this document could be encompassed in a restoration and long term Management Plan of the Ladybridge Farm Extension site / Nosterfield Quarry site’.
2.2.3 ‘The habitat design and management provisions set out within this document should enable active bird management tools (e.g. bird scarers, shooting, etc) to be avoided in normal circumstances. However, such active management measures would be introduced if subsequent site monitoring of flocking bird numbers indicated a problem requiring positive action. In this respect, It should be noted that the landowner has specifically retained (and exercises) the shooting rights over the existing restored wetland areas at Nosterfield quarry to the west of Moor Lane’
There are vested interests who favour the "shoot the birds" BMP. Perhaps this was the plan all along and the North Yorkshire Minerals Planning Committee, consultees and the public have all been fooled as the applicant has known throughout that the terms laid down by the MoD must, in the end, prevail. Could this be why they have never allowed the promised public access?
On the 13 November 2008, in response to the Draft s106 agreement submitted to the CC on the 6th November 08 NYCC’s Heritage Manager sent an email to Catriona Gaterel of the CC’s legal department dated 13 November 2008 09:37. At this stage he had not seen the April 2008 BMP (because it followed the signing of the S106), he was responding to text in the S106 when he commented: - ‘The revised wording in 5.5.1 represents a significant step forward to achieving an after-use strategy that meets a variety of outcomes and is expressly designed to ensure that we don't just end up with large bodies of open water’.
Apparently when the Heritage Manager gave that advice he had forgotten all about the grave concerns expressed in the memos dated 26th March 2007 and 29 January 2008 by the Principal Ecologist and the Principal Landscape Architect to the BMP which was part of the quashed permission.
The BMP was submitted to NYCC on 2nd December 2008. On the 27 January 2009 the BMP was put out for consultation. This was the first time the public and (we think,) Statutory Consultees had seen it. We have to ask why NYCC sat on it for seven weeks.
It was essentially the same as the version submitted to the County Council on the 3rd October 2007 except that it now applied to Ladybridge plus the present quarry (which had been given permission based biodiversity and encouraging nature). Proposing shooting and egg oiling of priority species on 33ha is bad enough, but on an additional 106ha is clearly much worse, as all non aquatic life is sterilised. The 2007 and the 2008 versions of the secret BMP had the same restoration plans attached showing deep water and steep banks – the opposite of the plan upon which Members resolved to grant permission in August 2008.
The Target date on the Online Planning Register for its consideration was the 20th of March 2009, but in the event, the application was determined on the 3rd of March thus allowing little time for consultation on this crucial matter. One is forced to question why the delay in putting the BMP out to consultation and undue haste to put he matter before the Planning committee.
On the 20 July2008 FoTH objected to the Application which was due for determination on the 26th of August, to summerise all of our objections relate to North Yorkshire County Council's lack of adherence to policies and guidelines.
These policy contraventions include:
NYCC has a history of disregarding its own and national policies when considering mineral planning applications, causing concern to both statutory consultees and ratepayers. Legal opinion is that the 1994 decision that precipitated the sequence of quarrying close to Thornborough Henges was fundamentally flawed. Decisions made by local government must be lawful, and the authority’s Monitoring Officer has a duty to ensure adherence to the law, to policies and to guidelines. Yet permission C2/92/500/53 was criticised as unlawful on eight different counts, forcing its voluntary quashing by NYCC. Whether this was the result of institutional incompetence or under-resourcing, the authority must put its house in order, starting with this re-submission, or be subjected to external scrutiny.
The following are material considerations.
Conclusion.
All of these objections are supportable by law or by the attached policies and guidelines. Sufficient time should be allotted for due weight be given them by the minerals planning authority and its consultees.
"The planning permission granted following the (2007) meeting has now been quashed owing to administrative errors in the Decision Notice". (This is untrue as legal objections were the cause of the quashing.)
"These can be summarised as follows: Two additional conditions regarding hydrology/hydrogeology as recommended by the Environment Agency were not set out in the decision notice.
1. Although identifying relevant development plan policies the decision notice did not set out a summary of these policies.
2.
A copy of the proposed S106 Agreement was not placed on the statutory planning register."
‘A number of consultees have expressed concern with regard to the impact of the workings and proposed wet restoration scheme on the landscape’.
It reminded Committee Members that the site in question was previously a ‘landscape enhancement area’ under the obsolete Hambleton District Wide Plan (so it follows that it must be in need of improvement), and although it had been changed through mineral extraction, the benefits to nature conservation and biodiversity mitigated the change. To emphasise the point paragraph 9.24 advises that ‘Part of the existing Nosterfield Quarry is already designated as a Local Nature Reserve’, which is not true.
The report goes on to say that ‘Both English Nature and the County Council’s Ecologist are of the opinion that the proposed development will not have any significant adverse effect on ecology’.
Officers failed to refer to Landscape Character Assessments which the County Council Commissioned as part of the process of determining which Mineral and Waste sites to propose for inclusion or rejection as preferred areas in the Minerals and Waste Development Framework. These were contrary to the suggestion that the landscape was in need of enhancement through remodelling.
Members resolved to grant permission subject to the S106 agreement referred to in the report and the draft agreement was shown below the report.
At the time there was no reason for concern or alarm over the tension between the BMP and the after-use plan because the ‘Proposed lake shorelines, residual water body configurations and lake marginal planting are designed to minimise their attractiveness to large flocking birds’. It is reasonable to assume that Members had been persuaded that this meant little by way of remodeling of the pit lakes, but more in the way of planting – passive control. There can be little doubt that they were mislead.
The restoration proposals for the 2008 application were essentially the same as the previous application submitted in 2006. No mention of deterring birds.
The restoration drawing in the June 2008 application was the same as the 2006 one, except that it had a different suffix letter in its title and had a different sluice outfall level. The difference in levels is of no consequence to this case.
The restoration plan showed large areas of shallow water and gently sloping banks providing good habitat for many species. The broad thrust of the restoration and after use was to create a wildlife haven.
There was no mention of the "Shoot the birds" BMP, although there was discussion on the MoD recommendations.
The documentation to this application and previous ones makes considerable play on consulting with the Swale and Ure Washlands Project (SUWP) and how the proposal will not impact detrimentally on the Nosterfield Nature Reserve. However Mr Simon Warwick who is the leading player in the SUWP, in charge of the Nosterfield Nature Reserve and a Trustee of the Lower Ure Conservation Trust states categorically that he has not been consulted throughout all of the Ladybridge proposals including the BMP.
On the 29 March 08 he wrote: - ‘Indeed, I should add that I have never set eyes on the Ladybridge planning application(s) documents, let alone read or commented on them – I have no doubt that we would have done if invited to do so’.
And, on Feb 18th 2009, relating to the BMP: - ‘Whilst we have not been party to the current planning application, we understand that the thrust of this is based on a Bird Management Plan; clearly this is a disappointing outcome, reflects the lack of strategic guidance and presumably indicates what the applicants feel are in their best interest.’
2008 13 November. In response to the Draft s106 agreement submitted to the CC on the 6th November 08, Bob Sydes, the NYCC’s Heritage Manager sent an email to Catriona Gaterel of the CC’s legal department dated 13 November 2008 09:37. At this stage he had not seen the April 2008 BMP (because it followed the signing of the S106), he was responding to text in the S106 when he commented: - ‘The revised wording in 5.5.1 represents a significant step forward to achieving an after-use strategy that meets a variety of outcomes and is expressly designed to ensure that we don't just end up with large bodies of open water’.
Apparently when the Heritage Manager gave that advice he had forgotten all about the grave concerns expressed in the memos dated 26th March 2007 and 29 January 2008 by the Principal Ecologist and the Principal Landscape Architect to the BMP which was part of the quashed permission.
On the 10th June 2009 the County Council issued a notice that the BMP had been approved despite all of the reservations, thereby allowing the development of further quarrying to commence. This was precipitated by the knowledge that in the interim between the granting of Planning Permission and the serving of the Decision Notice, objectors could add grounds to their case. Serving the notice was NYCC's way of attempting to close this door.
At the Judicial Review hearing on the 11th June 2009 two additional grounds are permitted by the judge despite rigorous attempts by defendant (NYCC) and interested party (Tarmac) to block this. The JR was adjourned and the defendant agreed not to attempt further development without application to the Court.
The CC’s Minerals Planning Officer in her statement to the court claims that FoTH did not object at any stage to the BMS. As the above shows that the "shoot the birds" BMS was kept secret, then how could we object to it? Our own expert advice was that with subtle management, the MoD requirements could be incorporated in the biodiversity plan put before us and the Planning Committee; there was no need to comment. Sadly Tarmac does not understand subtle management and the "shoot the birds" BMS was the result.
The reason for keeping it secret was that they knew that they would not get permission if the system knew of it.