On 24 March 2014, the Planning Inspectorate upheld the decision of a local planning authority and rejected an appeal for the variation and extension of a previously granted planning permission for a mineral excavation and processing plant in the Buckinghamshire Green Belt.
The application for a variation of the permission was first made by the appellant, Lafarge Aggregates Limited, in August 2012. The application sought to vary the terms of a (then valid) planning permission to remove a condition requiring all activities to stop at the site by 30 September 2012, thereby allowing the excavation and/or processing work to continue beyond this date. The application was rejected by the local authority, Buckinghamshire County Council, in November 2012 on the ground that it would conflict with relevant planning policy.
Following this refusal, an appeal was lodged by the appellant under powers contained in section 78 of the Town and Country Planning Act 1990. The appeal was heard by Mr Geoffrey Hill of the Planning Inspectorate who held a site visit and hearing on 11 March 2014 before issuing his decision to reject the appeal and to refuse to grant a variation.
In finding against the appellant, the Inspector identified four main issues.
Whether the development constituted inappropriate development in the Green Belt.
The impact of the development on the amenity of local residents and visitors to the area.
If the development did amount to inappropriate development, whether there existed any very special circumstances to justify granting planning permission.
Whether granting planning permission in this instance would set an undesirable precedent for future similar cases.
Before turning to consider the main grounds of appeal, the Inspector first identified the key planning policies relevant to the appeal. While the National Planning Policy Framework (NPPF) (including the recently published guidance for the NPPF) is the primary source of policy for developments in the Green Belt, the local authority had also relied on a number of other sources of policy when rejecting the application.
These included the Buckinghamshire Minerals and Waste Local Plan 2004–2016, the Wycombe District Local Plan, the Buckinghamshire Minerals and Waste Core Strategy and the Wycombe Core Strategy 2008.
In considering the relevance of these, the Inspector noted that both of the Core Strategy policies had been recently adopted and could be considered to be an accurate reflection of the current policy objectives for the area and consistent with the NPPF. With regard to the Local Plan policies, these had been adopted nearly 10 years previously and it was arguable that they were not an accurate reflection of current policy objectives for the region.
The Inspector highlighted that paragraph 215 of the NPPF states that the test to be applied when considering the relevance of older planning policies is to review how consistent these are with the provisions of the NPPF. The more consistent a policy is with the NPPF, the greater weight it should be given when determining any application.
Applying this test to the provisions of the two Local Plans, the Inspector stated that both were in line with the NPPF and should therefore be attributed full weight in considering the appeal.
Issue 1: Inappropriate development
The NPPF states that the essential characteristics of the Green Belt are its openness and its permanence. In order to protect these qualities, the NPPF takes the position that any development in the Green Belt is inappropriate unless it falls within one of the limited categories of development set out in paragraphs 89 and 90 of the NPPF. The NPPF further states that if a development amounts to inappropriate development, it is by definition to be considered harmful to the Green Belt.
Applying these rules to the appeal case, the Inspector noted that the original planning permission had been granted on the basis that the appellant’s proposed excavation activities would fall within the exception for mineral extraction in paragraph 90 of the NPPF. As such, the appellant’s facility did not amount to inappropriate development under the NPPF.
The Inspector also highlighted that the exception in paragraph 90 would also cover ancillary operations connected with the mineral extraction activities, such as the appellant’s existing mineral processing facility.
However, the Inspector stated that this did not mean that the same analysis could be applied to the appellant’s application for variation without further consideration. As such, it was important to review whether the appellant’s proposed operations would be the same or similar to those authorised under the previous permission in order to decide whether the paragraph 90 exception would still apply.
In making the application for a variation of the then existing permission, the appellant had submitted that it no longer wished to carry out mineral excavation at the site but instead wished to continue using the facility as a mineral processing plant. However, the minerals processed at the facility would now be sourced from another site run by the appellant at a nearby location rather than processing minerals from the existing site.
In the Inspector’s view, the appellant was now essentially seeking permission to operate a standalone mineral processing facility as opposed to the previous mineral excavation facility with ancillary processing operations. In his view, these changes had a significant impact on the analysis as to whether the paragraph 90 exception applied.
In coming to this view, the Inspector emphasised that the paragraph 90 exception applies primarily to mineral extraction and will only cover developments such as mineral processing plants where these are connected with mineral extraction activities. Given that the appellant had acknowledged that no further mineral extraction would be carried out at the site, this cast serious doubt as to whether the mineral processing plant would be covered by the exception.
However, even if the exception could be stretched to accommodate mineral processing activities when excavation activities had ceased, this would likely only be the case where the minerals processed were sourced on site. In the Inspector’s view, it would not be possible to rely on the exception in paragraph 90 where, as here, there was a standalone processing facility which was processing minerals excavated from other sites.
Following this reasoning, the Inspector held that the new operations would not be covered by paragraph 90 and the appeal development would amount to inappropriate development within the Green Belt.
Consequently, this meant that the appeal proposal was by its nature harmful to the Green Belt. The burden was therefore on the appellant to show that there existed very special circumstances to justify granting planning permission as discussed in Issue 3 below.
Issue 2: Local amenity
In considering the impact on local residents and those visiting the area, the Inspector observed that the appeal proposal would likely have the same or a similar impact as the operations under the previous permission. The Inspector noted that there had been no evidence provided to show that these operations had given rise to any concerns or complaints from local residents whether in relation to noise, dust, odour or other nuisances.
On this basis alone, the Inspector stated that it would appear that there would be a minimal impact on the amenity of local residents and of those visiting the area. This would be in keeping with policies 28 and G8 of the Buckinghamshire Minerals and Waste Local Plan 2004–2016 and the Wycombe District Local Plan (respectively). These policies stipulate that planning officers must ensure that proposed developments in the area do not have an unacceptable impact on local residents, particularly in relation to noise, dust, odour and other nuisances.
However, the Inspector held that these policies also have a broader application and are intended to safeguard a wide meaning of public amenity. In the context of the appeal, the Inspector noted that there was an expectation that the appeal site would be restored to a country park once the excavation activities had stopped. Given that these had stopped by the end of 2012, the expectation was that the site would now, or would soon, be available again for recreational purposes.
The Inspector emphasised that the use of land in the Green Belt for recreational purposes is one of the objectives of the NPPF and, as such, significant weight had to be given to achieving this outcome. Viewed in this light, the Inspector held that granting a variation of the previous permission, thereby allowing for activities to continue at the site and delaying its restoration to a country park, would have a negative impact on the amenity of both local residents and those visiting the area.
The appeal proposal would therefore be contrary to the provisions of the Local Plans and the Inspector found against the appellant on this issue.
Issue 3: Very special circumstances
The NPPF states that permission may still be granted for inappropriate development in the Green Belt where very special circumstances exist to justify doing so. Paragraph 88 of the NPPF states that very special circumstances will exist where any potential harm is “clearly outweighed” by other considerations. The Inspector emphasised that the wording of this paragraph establishes a very high threshold to be met with the burden on the appellant to meet this threshold.
The Inspector noted that the appellant particularly needed to address the Inspector’s earlier finding that the development was in essence a standalone processing facility and that there was a good reason for it to be located on the appeal site.
In addressing these points, the appellant submitted three arguments. The first argument made was that the processing facility was needed at the appeal site as it was not possible to locate it at the appellant’s second site where the minerals would be excavated. This was because the second site was located close to a marina along the flood plains and was unsuitable for this type of development. The appellant also stressed that the planning permission for this second site expressly referred to minerals excavated from it being processed at the appeal site.
In considering this argument, the Inspector accepted that no evidence had been provided to contradict the appellant’s submission that the second site was located in an area unsuited to a facility such as that proposed under the appeal. The Inspector also accepted that the planning permission for the second site had envisaged a connection between the two sites with regard to the processing of minerals from the second site at the appeal site.
However, the Inspector also stated that this connection was established on the basis that the appeal site was still operational under the previous planning permission which was no longer the case. Furthermore, the fact that the second planning permission envisaged using the processing plant at the appeal site did not mean that this was the only facility where minerals could be sent to be processed.
While the Inspector agreed that sending minerals from the second site to the appeal site would be cost and time efficient for the appellant, he also stated that these were commercial benefits for the appellant rather than very special planning circumstances.
The Inspector similarly dismissed the appellant’s second argument that processing minerals from the second site at the appeal site would encourage sustainability and reduce carbon emissions from transportation. Although the Inspector acknowledged this was true in respect of the appellant’s operations, he held that this was taking too narrow an approach to the question of sustainability.
It was important to consider not only the question of transportation of the minerals from the point of excavation to the appeal site but also from the appeal site to the end customer. The appellant had failed to demonstrate that any of the other processing facilities available for use in the area were inadequate or incapable of providing the same services as it proposed for the appeal facility.
The appellant’s third argument was that, by allowing for an extension of time for operations at the site, this would also give the local authority an opportunity to improve the agreed restoration plans for the site once operations had stopped. In making this argument, the appellant identified a number of areas where improvements could be made in the previously agreed restoration plans and that it was willing to carry out. In order to show its commitment to carrying out such improvements, the appellant provided the Inspector with a section 106 planning obligation that would be binding if the permission were granted.
In considering this argument, the Inspector agreed that the previously approved restoration plans had a number of weaknesses that could be remedied under the appellant’s new proposal. However, the Inspector also noted that changes would need to be made to the approved plans anyway as a result of sewer works carried out on the site which made implementation of the approved plans difficult at best.
Furthermore, while improved restoration works were desirable, the Inspector held that the appellant had failed to show that prolonging operations at the site was the only way these could be achieved.
In concluding on this issue, the Inspector acknowledged that having the processing facility on the appeal site would bring some commercial and operational benefits to the appellant and could help improve sustainability. However, the Inspector also emphasised that commercial and operational benefits did not amount to very special planning circumstances and that the sustainability benefits (if any) had not been sufficiently evidenced to meet the high threshold required by the NPPF.
On this basis, the Inspector held that there did not exist very special circumstances to justify granting planning permission and found against the appellant on this issue.
Issue 4: Precedent
The final issue raised by the council was whether granting planning permission for this development would set a precedent for deciding applications for other proposals at other sites. In considering this issue, the Inspector emphasised that each case had to be judged on the basis of its own set of facts and circumstances. While previous decisions could be referred to, they would only be of relevance where there were similarities between the developments under consideration in terms of type and size of the scheme, location of the site, extent and duration of the operations and likely impact on the surroundings. Even where these similarities existed, this did not mean that the relevant planning officer was bound to follow the previous decision but rather that it would be a relevant factor to take into consideration.
Having found that the appeal development amounted to inappropriate development for the purposes of the NPPF, and having concluded that there were no very special circumstances to justify granting planning permission, the Inspector proceeded to uphold the decision of the local authority and to dismiss the appeal.
For further information, see:
http://bit.ly/SA8cYQPlanning Inspectorate decision
Last reviewed 8 May 2014