Last reviewed 14 July 2014
On 3 June 2014, the Planning Inspectorate overturned the decision of a local planning authority and allowed an appeal for the variation of an existing planning permission governing activities at a coal pit in Aberdare, South Wales. The decision authorises surface coal extraction at the site with consequential land remediation and landscaping without the need to comply with a number of conditions imposed under the previous planning permission.
The application for variation of the planning permission was first made by the appellant, Tower Regeneration Ltd, in May 2013. The application was rejected by the local authority, Rhondda Cynon Taf County Borough Council, in December 2013 on the grounds that it would have a detrimental impact on residential amenity. Following this refusal, an appeal was lodged by the appellant under powers contained in s.78 of the Town and Country Planning Act 1990. The appeal was heard by Mr Emir Jones of the Planning Inspectorate who held a site visit and hearing on 21 May 2014 before issuing his decision to allow the appeal, and granting an updated planning permission.
The Inspector identified one main issue in finding in favour of the appellant, this being the impact of the proposed variation on residential amenity, particularly in terms of noise, dust and general disturbance.
Main issue: residential amenity
The appeal site is an active coal mine operated by the appellant under the terms of a planning permission issued by the local authority in December 2011. The previous permission was subject to a large number of conditions imposed to ensure that the site was run safely and with as little impact on local residents as possible.
The appellant’s application sought to remove four of these conditions, which imposed the following restrictions.
No operations to take place on site outside of the hours of 6am to 10pm Monday to Friday, and 8am to 12pm on Saturdays.
Noise emissions from the site not to exceed stipulated levels as measured using the criteria in Minerals Technical Advice Note (Wales) 2: Coal (MTAN 2) and as tested at numerous sites located near to the boundaries of the appeal facility.
The appellant’s application stated that the main practical effect of the variations would be to allow it to conduct site activities on Saturday afternoons between 12pm and 4pm. In explaining the need for this change, the appellant noted that it had rarely been able to operate the site at full capacity since the previous permission was granted, as a result of poor weather conditions. This meant that the appellant had only been able to operate the site at 60% capacity when compared against the 65-hour working week that was envisaged under the previous permission. Although the appellant had consequently scaled back its business plan for production at the mine to reflect this, it explained that the proposed variations would allow it to make up some of the lost capacity, while also providing much needed flexibility in working arrangements.
In rejecting the initial application, the local authority’s main objection had been on the basis that increased working hours would result in prolonged periods of time when noise would be generated at the site. The council contended that this would have a detrimental impact on local residents who had a reasonable expectation of being undisturbed by noise from the site during the weekend.
To support this argument, the council referred the Inspector to paragraph 33 of Minerals Planning Guidance: The Control of Noise at Surface Mineral Working (MPG11). This states that a working week should be treated as being Monday to Friday and Saturday mornings, with the remaining times and public holidays being regarded as times of rest. The council argued that it was possible to conclude from this paragraph that members of the public were entitled to view times that were outside of the working week as times when they would be undisturbed by operations such as those under consideration in the appeal.
However, the Inspector noted that paragraphs 31 to 42 of MPG11 had been disapplied in relation to coal mining activities by the provisions of MTAN 2. Instead, MTAN 2 focuses on imposing maximum thresholds for noise emissions during different times of the week. For example, MTAN 2 stipulates that noise levels should not exceed either background plus 10dB LAeq or 55dB LAeq (which is lower) during 7am and 7pm Monday to Friday. The latter limit is the threshold that it advises people will become seriously annoyed by. MTAN 2 also suggests that local planning authorities may wish to impose lower maximum thresholds where operations have been permitted between 8am and 12pm on Saturdays.
Although the Inspector acknowledged that no express provision was made for other times of the week (such as Saturday afternoons), he emphasised that this did not amount to a ban on activities taking place during these times. Instead, each application needed to be treated on a case-by-case basis to determine whether activities would be appropriate at the proposed time and, if so, what noise level restrictions should be imposed.
In terms of the appeal site, the Inspector noted that noise levels in the area are already high during Saturday afternoons as a result of traffic using the three main roads nearby. The Inspector also referred to the results of a Noise Impact Assessment commissioned by the appellant to assess the probable noise levels at seven noise-sensitive sites near to the appeal facility. The Assessment predicted that noise levels at each of these sites would be below both the 55dB LAeq and background plus 10dB LAeq thresholds imposed by MTAN 2. In the Inspector’s view, this suggested that increased working hours on Saturdays was unlikely to have a significant impact on local residents from this perspective.
A number of interested parties had submitted comments to the Inspector concerning the impact of dust pollution coming from the appeal site. In particular, local residents had complained about dust deposits covering garden furniture, cars and the outside of houses, and which required regular cleaning to avoid lasting damage. They consequently argued that if operations were allowed to take place over a longer timeframe each week, this would exacerbate the problems caused by dust.
In responding to this argument, the appellant provided evidence demonstrating that the dust complained of was mainly generated by vehicles using the local road network as opposed to dust generated by the mining activities. The appellant also argued that, while operations on Saturday afternoons would result in a longer timeframe for operations to take place, they would still be under the 65-hour working week permitted under the previous permission. The amount of dust generated would therefore still be in line with the amount envisaged under the previous permission.
Although the Inspector acknowledged the concerns of local residents on this point, he accepted the appellant’s evidence that much of the dust complained of was not generated at the site. In supporting this conclusion, the Inspector drew attention to MTAN 2, which states that dust from facilities such as that considered here does not usually disperse very far from the site due to its coarse features. MTAN 2 advises that the impact is usually more appreciable in locations within 100 metres of the dust source. In this case, the Inspector noted that the nearest residential properties were well beyond this 100-metre radius. This supported the appellant’s evidence that much of the dust was likely to come from other sources and that the impact of the site was unlikely to be significant in this regard. The Inspector also accepted the appellant’s argument that the extended timeframe for operations would not result in the 65-hour working week being exceeded, and thus there would be no additional dust generated as compared to such a week.
The Inspector further emphasised that dust emissions were already being monitored on a weekly basis and that the site would still be subject to the existing Strategic Environmental Management Plan if the revised permission was granted. This would allow dust emissions to be dealt with quickly should any issues arise in the future.
Although this had not been a reason for rejecting the initial application, the council argued before the Inspector that the increased working hours could cause light pollution in the area from the on-site lighting. However, the Inspector noted that it was unlikely that lighting would be needed before 4pm (at which time the extended operations on Saturdays would end) other than if weather conditions were bad, in which case it was unlikely that operations would be taking place anyway.
The Inspector agreed that the extension of operating hours to 4pm on Saturdays would result in a prolonged time over which disturbance could be caused to local residents in the area. However, he reiterated that the extended operational hours would only be used where the currently permitted 65 working hours had not already been carried out by 12pm on Saturday. In balancing the increased operational hours against the increased risk of disturbance, the Inspector held that it was unlikely that an additional four hours would result in any significant impact for local residents.
In weighing up all of the arguments on this issue, the Inspector stressed that the key element was to ensure that any decision did not have a detrimental impact on local residents. However, while local residents had a reasonable expectation to peaceful enjoyment of their weekends, free from industrial activities, the evidence provided by the appellant on each point had shown that the impact of removing the challenged conditions and increasing opening hours at the site was likely to be minimal.
The Inspector therefore found in favour of the appellant and proceeded to grant a new planning permission based on the terms of the previous permission, but with the exclusion of the challenged conditions.