1 November 2013
Trevor Brown
Principal Planning Officer
Minerals and Waste Policy Team
Oxfordshire County Council
Speedwell Street
Oxford
OX1 1NE
Dear Mr Brown
Re: Restoration of sand and gravel workings in the functional floodplain
Oxfordshire County Council (OCC) officers have helpfully shared with the
Mineral Products Association (MPA) various items of correspondence between
the County Council, DCLG and the Environment Agency on the above subject.
That correspondence relates both to proposals for the Core Strategy and to
consideration of a planning application for sand and gravel extraction at
Caversham.
The Waste Working Group of the MPA have asked me to write to you as a
matter of urgency because it is evident from that correspondence that the
debate has national implications and that certain fundamentals are being
overlooked by both DCLG and OCC .
Any actions that would effectively be a ban on restoring sand and gravel
workings in the functional flood plain (Zone 3b) by infilling with inert waste
would sterilise the majority of resources of that material in the UK. It would
certainly significantly hamper the ability of the industry to deliver high
quality restoration schemes designed to improve biodiversity, establish
sympathetic landscapes, re-instate a range of highly valued after uses and to
address other concerns, such as birdstrike potential. The matter therefore has
very serious implications for the future of the aggregates industry and for the
achievement of the overall Government objective of ensuring a sufficient
supply of material to provide the infrastructure, buildings, energy and goods
that the country needs. Moreover, any restriction on the availability of
resources would inevitably result in greater pressures on other areas which
may be sensitive in planning terms. The MPA believes that a ban on such
restoration operations in Zone 3b was not the intention of the guidance when
it was introduced, is not in conformity with NPPF policy (Paras 100 to 104)
and is not necessary to ensure compliance with the Landfill Directive. The
Waste Framework Directive (Directive 2008/98/EC on waste1) and the
1
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste
and repealing certain Directives
Commission Decision of 18 November 20112 provides that the backfilling of
quarries may be regarded as a ‘recovery’ operation as opposed to
‘disposal’/landfill where the waste is ‘serving a useful purpose by replacing
other materials which would otherwise have been used to fulfil a particular
function...’ (Article 3(15) of Directive 2008/98/EC). Backfilling is typically an
integral part of a restoration scheme designed for beneficial purposes and to
satisfy planning criteria.
The reasoning behind those conclusions is as follows:
Point 1:
It is perfectly understandable that increasing flood risk by any form of
development is to be avoided. However, where a proposal is able to
demonstrate that it does not increase flood risk, then flooding issues should
not be a material consideration in any decision making process. The need to
demonstrate acceptable flood management credentials finds form in the
Exception Test (NPPF Para. 102).
Where the planning system in England stumbles on this matter in the context
of sand and gravel operations, stems from the wording of planning practice
guidance.
Table 2 of the NPPF Technical Guidance (taken from PPS25 and now
transposed into the Beta NPPG) classes “sand and gravel working” as “water
compatible development” and it is therefore (Table 3) appropriate in Zone
3b. From their response to the Caversham planning application it is clear that
the Environment Agency (EA) acknowledges that the restoration of an
extraction site is an integral part of the process of mineral working. Indeed it
is a requirement that restoration provisions are included in any proposal for
minerals development. However, from their correspondence with DCLG, it is
apparent that OCC are not clear on that point. The significance of that is that
Technical Guidance Table 3 does not appear to give sufficient flexibility to
allow the Exception Test to be applied to proposals for sand and gravel
extraction that incorporate restoration by backfilling. If backfilling is not part
of the “working” process and is classed as landfill, it is “more vulnerable “
development for which planning permission should not be permitted in Zone
3b. ‘Landfill’ and ‘sand and gravel working’ are not defined in the guidance,
and thus are open to interpretation.
The simple answer to these issues is that the wording of the current planning
practice guidance should be clarified. In view of the fact that the EA drafted
these important tables in the first place and their belief is that restoration
2
Article 1(6) of the Commission Decision of 18 November 2011 in respect of establishing rules and
calculation methods for verifying compliance with the targets set in Article 11(2) of the Waste
Framework Directive
activities are part of the mineral working process, a change to the wording is
fully justified and urgently necessary. The EA have raised no objection to the
Caversham application, but OCC have sought assurance from DCLG that such a
view is in accord with the Practice Guidance simply because that guidance is
unclear.
A change is also necessary to avoid conflict between the NPPF (para 100),
which says that inappropriate development in areas at risk of flooding should
be avoided and Table 3 which says that certain forms of development in those
areas “should not be permitted.” The MPA has commented to that effect in
their response to the NPPG Beta consultation and suggested a simple solution.
In any case, any form of development in Zone 3b should not be banned
outright, as the NPPG attempts to do. It should allow the flexibility to grant
planning permission for any form of development when an applicant can
demonstrate that their development will not increase, and may in fact
decrease, flood risk, is not vulnerable, and poses no unacceptable
environmental risk.
Point 2:
The second fundamental point that has not been considered by any of the
parties to the correspondence is that the troublesome wording mentioned
above appears in planning guidance (the Technical Guidance and the Beta
NPPG) and not planning policy (the NPPF). Having shown that they have taken
the Guidance properly into account, OCC is perfectly entitled to make
decisions on the formulation of core strategy policy and on individual
applications that do not accord entirely with Guidance. Significantly, the EA
has not objected to the Caversham application having considered the matter.
Further, as previously mentioned, the MPA believes that the NPPF and NPPG
are in conflict on this particular point and that policy should take precedence.
Point 3:
The Mineral Products Association maintains that the use of inert material to
restore mineral workings to a beneficial afteruse as part of an integral, site
specific restoration scheme is a recovery operation, not disposal or landfill in
the waste disposal context. In many cases the EA agree with that view and
recovery permits are issued for the backfill operation. There is no specific
category to cover infilling with inert waste as part of an engineering
operation. If all forms of infilling were to be considered as a separate element
of a larger scheme of development and “banned” by the NPPG in zone 3b then
it would almost certainly preclude most of the forms of “Water-compatible
development” listed in Table 2. The construction of docks, marinas, wharves,
defence installations etc., in the functional flood plain all requires excavation
and backfill. In the interests of sustainability and subject to meeting technical
requirements, inert waste materials would be “recovered” for that purpose.
The infilling phase of a sand and gravel working is an essential part of the
development in exactly the same way and like the forms of water compatible
development mentioned, does not constitute a separate activity.
The MPA would not normally comment on individual planning applications and
we are only doing so on this occasion because it raises issues of principle that
are fundamental to the future of the aggregates industry. Indeed, in forcing
consideration of the relative weight that should be given to planning policy as
opposed to guidance, it raises issues that are fundamental to the proper
functioning of the planning system itself.
We would be grateful if you would take these points into account and are
happy for you to bring this letter to the attention of anyone you feel would
find it relevant. I intend to copy the letter to appropriate officials at DCLG
and DEFRA.
Yours sincerely
Ken Hobden
Director of Planning
Mineral Products Association