PART 1
(OPEN TO THE PUBLIC)
ITEM NO.
REPORT OF THE DIRECTOR OF DEVELOPMENT SERVICES
TO THE DIRECTOR OF DEVELOPMENT SERVICES
ON 21st July 2004
TITLE : Breach of Planning Control-Peat Extraction- at Astley Moss East, Boothstown, Worsley,
Salford
RECOMMENDATIONS: That enforcement action be authorised to secure the cessation of peat
workings and to secure compliance with conditions
EXECUTIVE SUMMARY: Peat is being extracted without planning permission and
conditions imposed on a permission granted in 1988 have not been complied with. There is
increasing concern (given that a large area of the site has already lost its cover of peat) that
the continued unauthorized extraction of peat at the site, will reduce the depth of the
remaining peat deposits so as to prejudice the possibility of restoring them to a condition
capable of supporting bog species, and so will prevent the re-establishment of bog habitat
on the site. There is concern that this position is seriously undermining the new policies
relating to the Mosslands Heartland, within the Draft UDP Replacement Plan.
BACKGROUND DOCUMENTS: (Available for public inspection)
Planning file reference E/21114. City of Salford Unitary Development Plan; Revised Deposit
Draft Replacement Plan 2003-2016.
ASSESSMENT OF RISK LOW
THE SOURCE OF FUNDING IS Not Applicable
LEGAL ADVICE OBTAINED Counsel advice sought
FINANCIAL ADVICE OBTAINED: Not Applicable
CONTACT OFFICER: Martin Hodgson Tel: 0161 793 3626 (Planning and Building Control)
WARD(S) TO WHICH REPORT RELATE(S) Boothstown and Ellenbrook
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KEY COUNCIL POLICIES Community Plan and City of Salford Unitary Development Plan
DETAILS
Background (the position statement towards the end of this report outlines in more detail the
events that have occurred)
Unauthorised peat extraction began on this site in 1984. At that time the site was considered
a Grade A Site of Biological Significance (i.e. of county/regional significance). Greater
Manchester Council had at that time responsibility for minerals applications and discussions
took place to regularise the situation. However following abolition of GMC the City Council
(Planning and Development Committee) resolved to take enforcement action to control the
unauthorised peat operations via an enforcement notice and stop notice. This resolution
prompted the submission of the application in 1986. Whilst the wildlife significance had been
lost the site through appropriate restoration could regain its bogland characteristics.
Planning permission was granted in February 1988 for the extraction of peat. The permission
was subject to a number of conditions. Condition 1 provided that extraction of peat was to
cease on or before 31st December 2001 and that equipment and machinery was to be
removed from the site by that date. Condition 07 required that a minimum of a 1m depth of
peat remain on site to ensure restoration could take place.
Condition 08 required that a restoration scheme be to be submitted for the approval by the
LPA by the end of 1998. The scheme was to include details of how the site would be
returned to a natural wildlife habitat and a timetable for implementation. The scheme was
submitted after the due date but there has been no agreement reached as to the details of
the scheme, which the operator/landowner states, has been partially implemented. Legal
advice confirms that there are grounds for arguing a failure to comply with the condition.
Legal advice goes onto conclude that there are clear breaches of the planning permission.
Each shovelful of material excavated constitutes a separate act of development. There is
arguably a breach of planning control independent of the breach of the condition. In those
circumstances counsel advises that there are clear grounds for taking enforcement action
but the Council will have to decide whether it is expedient to take such action. Finally he
advises that the most appropriate way to undertake legal proceedings is via an enforcement
notice.
Is it expedient to take action?
Biodiversity Importance of Lowland Raised Bog
Lowland raised bog is considered to be extremely important in terms of biodiversity, and is
afforded `Priority` status under the EU Habitats Directive. This importance cascades down
through national, regional and local policy guidance, including the UK Biodiversity Action
Plan and the Greater Manchester Biodiversity Action Plan.
The mossland area within Salford has no remaining areas of `intact` lowland raised bog, but
does have large areas of `degraded` raised bog, lying within 3 existing / former peat
extraction sites. Advice from English Nature is that `degraded` raised bog is almost of as
much biodiversity importance as intact lowland raised bog because it is capable of
restoration to lowland raised bog.
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Existing UDP Policies
Policy EN6 indicates that on the mosslands, planning permission would not normally be
granted for proposals that would be detrimental to the wildlife of the mosslands, or which
would not provide an afteruse, which is of positive benefit to mosslands wildlife. The
reasoned justification indicated however, that in exceptional cases, the careful removal of
peat might create the right conditions under which lowland mosses can regenerate and
recolonise.
Draft Replacement UDP Policies
Given the importance attached to lowland raised bog habitat, Policy EN8 (which refers to a
Mossland Heartland covering the existing Twelve Yards Road peat extraction site, and the
Astley Moss East site) seeks a strong level of protection in order to accord with stated
international, national, regional and local objectives. The bare peat deposits within the
Mossland Heartland are considered to offer the greatest potential for a large area of primarily
lowland raised bog to be restored within the City Council area. The emphasis in the Draft
UDP is on ensuring that this restoration potential is protected, and therefore anything that
would prevent that restoration would not be permitted unless there were special
circumstances. Those special circumstances are that there are no less damaging
alternatives for the development and that there is an overriding public interest arising from
the development.
In terms of the sand and gravel extraction the point is that coupled with the over extraction
that has already taken place, the complete removal of peat over a much larger area will
make it almost impossible to restore to anything approximating a lowland bog habitat. This is
clearly contrary to current Review UDP Policy which states that development within or
potentially affecting the Mossland Heartland will only be permitted where it would not prevent
the restoration of any part of the Mossland Heartland to lowland raised bog habitat.The
current UDP has a minerals policy which is criteria based. This would need to be read in
conjunction with Mossland Policy, which is less explicit about the need to retain specific
depths of peat and the conditions needed to restore to lowland bog habitat.
In conferences with legal counsel for our UDP inquiry Vincent Fraser has made the point that
the continued extraction of peat without any intervention by the Council could undermine our
proposed policies on the moss.
Case For Legal Action
It has been established that peat working is still being carried out without planning
permission. We cannot rely on the conditions imposed on the original planning application
(e.g. to ensure 1m of peat is maintained) since the permission is spent. The landowner has
submitted details of peat depths remaining across the site. It is clear form these surveys that
more recent workings have gone below the minimum level of 1m (and not have the required
0.5m depth of bog peat) and accordingly restoration to a raised bog habitat is not possible.
The site is located in an environmentally sensitive area hence the need for an ES. Adjacent
is the Bedford and Astley Mosses SSSI (lies within Wigan) which has been identified as a
candidate for a Special Area of Conservation Interest. It is also close to Botany Bay Wood
proposed SSSI. It also provides a habitat for the breeding little plover a schedule 1 bird and
other breeding birds. In determining the scoping exercise both the GM Ecology Unit and
English Nature advised of the sensitive nature of the site and the potential for significant
impact on the ecology of the area in relation to continued peat extraction. Without an ES and
the safeguards that can be built in it is difficult to determine at this stage that no significant
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harm to nature conservation interests in the area would result from continued peat
extraction.
Case Against
The operator claims that cessation of peat extraction will result in significant job losses
locally. Two planning applications one for continued peat extraction and the other for peat
extraction plus sand and gravel extraction remain undetermined. In the case of continued
peat extraction alone the absence of the ES can only result in a refusal of planning
permission. In principle however the continued extraction of peat could be supported as long
as a satisfactory restoration scheme is agreed. The Council’s position on the latter
application is yet to be established and it needs to consider the further information submitted
on 28th June 2004, although it should be a position to come to a view (on the application) in
the next few months. Should the Council be minded to grant planning permission then the
serving of an enforcement notice could be seen as unreasonable behaviour and costs could
be awarded against the Council should the applicant go down the appeal route. But this
could still be justified if the unauthorised peat workings have meant that the proposed
restoration cannot be delivered.
The matter of the restoration of the site, in accordance with the original planning permission,
is disputed by the applicant. The legal position is clear in that a certain completed state has
to be reached on the site to comply with the condition (i.e. a natural wildlife habitat) but
following this it can be undone or not managed thereafter to maintain its state. The old
permission cannot secure in the long term a raised bog habitat, although this could in theory
be modified but at the risk/expense of the Council paying out compensation. The application
for peat and sand and gravel extraction is a compromise situation whereby parts of the site
are retained to form a raised bog and the remaining land as a lake and the provision of other
nature conservation interests. However achievement of the proposed restoration remain in
doubt-the dewatering effect of the lake coupled with the loss of large areas of in situ peat
across the site. The end result is the subsequent loss of peat land habitat.
Recommendation
1. That an enforcement notice be served to secure the cessation of the unauthorised
peat extraction.
2. That an enforcement notice be served requiring compliance with the restoration
condition 08 of planning permission E/21114.
3. That counsel advises on the drafting of the enforcement notices and also advises on
the serving of a stop notice and potential compensation implications for the Council.
4. That we meet with Peel to advise them of our intentions.
Impact: The serving of notices is likely to result in an enforcement notice appeal(s) with the
matter being considered at an inquiry. It may also trigger the Secretary of State to call in the
undetermined peat and sand and gravel application and hear them concurrently?
Position Statement
1. Purpose of Position Statement
The purpose of this statement is to set out the issues concerning the former Astley Moss
East site, which is currently subject to continuing unauthorized peat extraction. The peat
extractor at the site is Joseph Metcalfe, while the landowner is Peel Holdings.
2. Biodiversity Importance of Lowland Raised Bog
Lowland raised bog is considered to be extremely important in terms of biodiversity, and is
afforded `Priority` status under the EU Habitats Directive. This importance cascades down
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through national, regional and local policy guidance, including the UK Biodiversity Action
Plan and the Greater Manchester Biodiversity Action Plan.
The mossland area within Salford has no remaining areas of `intact` lowland raised bog, but
does have large areas of `degraded` raised bog, lying within 3 existing / former peat
extraction sites. Advice from English Nature is that `degraded` raised bog is almost of as
much biodiversity importance as intact lowland raised bog because it is capable of
restoration to lowland raised bog.
3. Existing UDP Policies
Policy EN6 indicates that on the mosslands, planning permission would not normally be
granted for proposals that would be detrimental to the wildlife of the mosslands, or which
would not provide an afteruse, which is of positive benefit to mosslands wildlife. The
reasoned justification indicated however, that in exceptional cases, the careful removal of
peat might create the right conditions under which lowland mosses can regenerate and
recolonise.
4. Draft Replacement UDP Policies
Given the importance attached to lowland raised bog habitat, Policy EN8 (which refers to a
Mossland Heartland covering the existing Twelve Yards Road peat extraction site, and the
Astley Moss East site), seeks a strong level of protection in order to accord with stated
international, national, regional and local objectives. The bare peat deposits within the
Mossland Heartland are considered to offer the greatest potential for a large area of primarily
lowland raised bog to be restored within the City Council area. The emphasis in the Draft
UDP is on ensuring that this restoration potential is protected, and therefore anything that
would prevent that restoration would not be permitted unless there were special
circumstances. Those special circumstances are that there are no less damaging
alternatives for the development and that there is an overriding public interest arising from
the development.
5. Previous Planning Permission for Peat Extraction (E21114)
(This application was determined prior to the mid 1990s changes in legislation and
planning guidance, which required more commitment to biodiversity and recognized
lowland bog as a UK Priority Habitat)
Under planning application E21114, approval for peat extraction was granted with a number
of conditions, including the cessation of peat extraction operations at the end of 2001,
retention of a one metre depth of peat across the site (with the results of an annual peat
depth survey supplied to the City Council each year), submission of a restoration scheme by
the end of 1998 (with appropriate details and timetable as to how this would be achieved),
and restoration of the site to `a natural wildlife habitat`. The conditions did not require
restoration to a specific `lowland raised bog habitat` and did not require provision for the
future management of the wildlife habitat created.
In January 1999, the City Council wrote to the peat extractor seeking a restoration scheme.
In response, Peel Holdings indicated that the delay in submitting restoration details was due
to some `sub surface exploration work`. A simple restoration scheme showing broad areas
of bog habitat, transplanted birch trees, and natural colonization was then submitted. The
restoration plan also indicated that a substantial area was now mainly devoid of peat, due to
over extraction by a former peat extractor. The City Council, English Nature, the GMEU and
the LWT were concerned at some aspects of the scheme, and that there were very few
details as to how the restoration scheme was to be secured.
In response to the submitted restoration plan, the City Council took legal advice from
planning counsel. The legal opinion indicated, that the condition requires a scheme for
returning the site to a natural wildlife habitat and implementation of that scheme. There is
nothing in the condition which governs what is to happen to the land, or requires anything to
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be done, or not to done, to the land once the site has been returned to the condition
specified in the scheme. Once the site has been restored to a natural wildlife habitat in
accordance with the scheme the condition has been satisfied. Whilst no further management
of the site can be sought it does require the site to be returned to that habitat and the
condition is not fulfilled until the site is returned to that state.
In the light of this opinion, the City Council requested more information on how the scheme
was to be implemented. There was then a delay until February 2001, during which time the
agent for Peel/peat extractor indicated that certain correspondence had taken place,
although the City Council was not in receipt of those letters. At a meeting between the City
Council and the agent for Peel / Joseph Metcalfe in August 2002, the agent indicated that
his clients had taken the view that the requirement for further details in relation to the
restoration scheme was “academic” given that the original planning approval had made no
requirement for the future management of any natural wildlife habitat created according to a
restoration scheme. In some circumstances the Council can seek to modify the planning
permission so as to impose a suitable aftercare condition. The use of these powers is
usually unattractive to LPAs because of the compensation consequences.
At present there is still an outstanding requirement for the applicants to submit further details
on how the restoration scheme is to be implemented. It is understood that peat extraction is
continuing without planning approval. The Council has served a Planning Contravention
Notice on the operator and landowner. It is not denied that further peat extraction has taken
place beyond December 2001 (confirmed extraction took place in 2002 and 2003), although
it is stated that this extraction has taken place on the site where remaining peat depths
exceed 1m and that they will comply with the conditions imposed on the original planning
permission. On the matter of non compliance with conditions the operator/landowner deny
any suspected breach.
6. Planning Application for Further Peat Extraction (01/43288/FUL)
(This application would need to be determined in line with the strengthening of
legislation and planning guidance to take on board European, national and regional
biodiversity commitments since the mid 1990s)
Prior to the August meeting referred to in the last paragraph above, Peel/Joseph Metcalfe
submitted a planning application seeking an extension of the period for peat extraction
beyond the end of December 2001, and up to May 2009. Given the type of development
proposed and the sensitive location of the site, especially in the vicinity of the Astley and
Bedford Moss, SSSI and cSAC, the City Council contacted a number of bodies and the
Secretary of State, with a view to determining whether an Environmental Impact Assessment
was required for the proposal. The Secretary of State directed that such an assessment was
required, and as a result the applicants were requested to submit an Environmental
Statement. At the meeting in August 2002 referred to above, the agent for Peel/Joseph
Metcalfe, indicated that there had been a delay in preparing information for the
Environmental Statement. The agent had been concentrating on the submission of a
planning application for the further extraction of peat, and for the extraction of sand and
gravel deposits lying under the peat (see Section 7 below).
At present there is an outstanding requirement for the applicants to submit an Environmental
Statement. In the absence of an ES the only decision the Council can take is to refuse the
application.
7. Planning Application for Peat, Sand and Gravel Extraction (02/45004/FUL)
(This application would need to be determined in line with the strengthening of legislation
and planning guidance to take on board European, national and regional biodiversity
commitments since the mid 1990s)
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In October 2002, the City Council received a planning application for the continued
extraction of peat, and for the new extraction of sand and gravel. The after-use of the
site would be a lake formed over the area of the sand and gravel extraction, bog
restoration of the remaining peat deposits around the new lake and a further water
body in the northern part of the site. In addition, there would be a shelf around the
new lake on which layers of peat won from other parts of the site would be placed.
Following initial consideration of the scheme, the bodies consulted had a number of
queries concerning potential impacts of the proposals. The most important of these
potential impacts were on the peat deposits on the following three sites (i) the
existing SSSI and candidate SAC within Wigan (i) the Twelve Yards Road peat
extraction site and (iii) the Astley Moss East site itself. The concern was that
extraction of the sand and gravel would draw down water levels from under all the
peat deposits on the above three sites. The concern was that this would either
damage existing bog habitat in the case of Astley and Bedford moss, or seriously
damage the potential for restoring peat deposits to bog habitat on Twelve Yards
Road and Astley Moss East. This is because bog habitat requires a high water table
throughout the year. . There was also concern that a “constructed bog cell” around
the lake was not feasible, given that it would be constructed from displaced peat, and
the peat within it would be in contact with the alkaline water within the lake. (The
advice from EN is that a bog habitat needs `acidic` as opposed to alkaline
conditions, and will not re-establish on displaced peat)
Following detailed consultations with environmental bodies such as the EA, EN, the GMEU
and the GMGU, it has now been accepted that the proposed method of sand and gravel
extraction is not likely to have an impact on the candidate SAC/SSSI. However there is still
concern that the extraction of the sand and gravel could still potentially impact on the Twelve
Yards Road peat extraction site, and on those peat deposits immediately around the
proposed sand and gravel extraction area. In the light of these ongoing concerns, the City
Council has requested further information from the applicants, in order to help it determine
the application. This information has now been submitted (received 28th June 2004).
8. Summary and Conclusions
There is increasing concern (given that a large area of the site has already lost its cover of
peat) that the continued unauthorized extraction of peat at the site, will reduce the depth of
the remaining peat deposits so as to prejudice the possibility of restoring them to a condition
capable of supporting bog species, and so will prevent the re-establishment of bog habitat
on the site. There is concern that this position is seriously undermining the new policies
relating to the Mosslands Heartland, within the Draft UDP Replacement Plan.
Up to now, the position has been that the City Council as local planning authority should only
take enforcement action, when it is in a position to be able to take a view as to whether it
was likely to approve the planning application for peat, sand and gravel extraction. Given the
ongoing nature of these issues, there is thought to be a need for the City Council to take a
view on the need for enforcement action.
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