Teigngrace Planning Inquiry: Proof of Evidence
by Chris Woodford
Relationship of the proposed development to Government planning policy
14th June 1998.
Government planning policy 4
Economic issues 4
National importance of ball clay
Prejudicial effect on inward investment: tourism 7
Sustainable development 9
Miscellaneous planning issues 14
Consultation areas 16
Environmental impacts 17
General considerations 17
Agricultural land 18
Archaeology and cultural heritage 20
Highways and traffic 22
Water environment 26
Tips and tipping 29
After-use and reclamation 29
Bonds and financial considerations 31
Appendix 1: List of Planning Policy Instruments 34
Planning Policy Guidance (PPG) Notes 34
Mineral Planning Guidance Notes 34
Regional Planning Guidance Notes 35
Appendix 2: References 35
1. My name is Chris Woodford.
2. Although I raised an individual objection to WBB's planning application, I have since decided (for the convenience of the Inquiry) to combine my objections with those of Teigngrace Parish Council and the AQUA campaign. I will be represented at the Inquiry by Mr Charles Hopkins and Mr Peter Roderick, the TPC/AQUA lawyers.
Scope of this proof
3. I have chosen to direct my proof of evidence at the second of the items raised by Hon. Richard Caborn MP, the Minister for Regions, Regeneration, and Planning, in the DETR press release of 14th October 1997: "The relationship of the proposed development to the Government's planning policy, particularly with regard to proposed mineral development within the countryside as set out within MPG1, PPG7, PPG9, and PPG13." 
4. My proof of evidence attempts to relate the details of this planning application (as indicated by WBB in its Environmental Statement and its various other public statements) to the national mineral planning framework, as set out in the PPGs and MPGs and in Regional Planning Guidance for the South West (RPG10). I have done this by first reading through the entire collection of PPGs and MPGs, then grouping different parts of each document by topic area (e.g. Conditions, Sustainability, etc.), and then relating each topic area back to WBB's statements. To avoid repetition, I have arranged my proof on a topic basis, rather than going through each MPG and PPG in turn. I have quoted the relevant paragraph of each document in full; although this makes for a lengthy proof, I believe it will save everyone's time, and I believe it is important to establish the context of a quote.
5. To avoid duplication, my proof does not contain details of the Devon County Structure Plan, the Devon Minerals Local Plan, or other documents that refer to planning issues at the County level or "below"; I have concerned myself purely with the national policy framework.
Conventions used in the text
6. I have adopted the following conventions. When I quote from an MPG or PPG note, I preface the quote with the MPG or PPG number, followed by the paragraph number. Thus, MPG7: "14..." refers to paragraph 14 of MPG7, and I shall use this shorthand format: MPG7/14 to mean the same thing. MPGs, PPGs, and RPGs are printed in italic font. I have included a full list of MPGs and PPGs at Appendix 1.
7. I have listed references to other documents in Appendix 2 and indicated them by square brackets in the text. Thus,  means reference number 14.
Government planning policy
8. MPG1: 52. The Courts have... held that the Government's statements of planning policy are material considerations which must be taken into account, where relevant, in decisions on planning applications. These statements cannot make irrelevant any matter which is a material consideration in a particular case. But, where such statements indicate the weight that should be given to relevant considerations, decision- makers must have proper regard to them. If they elect not to follow relevant statements of the Government's planning policy, they must give clear and convincing reasons (E C Grandsen and Co Ltd V SSE and Gillingham BC 1985).
9. MPG1: B1. The Government's statements of planning policy may be found in White Papers; Planning Policy Guidance Notes (PPGs); Minerals Planning Guidance Notes (MPGs); Regional Planning Guidance Notes (RPGs); Departmental Circulars; and Ministerial statements. PPGs, MPGs and RPGs are now the principal source of policy guidance on planning matters and planning circulars will tend to focus on legislative and procedural matters.
10. The Government's minerals planning policy relevant to this application is set out in the twenty-four Planning Policy Guidance (PPG) notes, the fourteen Mineral Planning Guidance (MPG) notes, Regional Planning Guidance for the South West (RPG10), various circulars, and various other ministerial statements. I note that the DETR press release of 14th October 1997 mentions MPG1, PPG7, PPG9, and PPG13 as areas the Secretary of State considers "particularly" (but not exclusively) relevant.
11. WBB's Statement of Case  confines itself purely to these documents and I assume this means WBB thinks the remaining documents are not particularly relevant, although they mention MPG11 elsewhere in their evidence. WBB's Statement of Case (p13) concludes: "In summary, MPG1, PPG7, PPG9 and PPG13 contain no indication that the type of development envisaged is anything other than appropriate". My evidence contradicts this overly literal interpretation of what the Secretary of State asked for.
12. I will demonstrate here that many of the Government planning policy documents have relevant things to say about this application (not just MPG1, PPG7/9, and PPG13) and I will argue that, on balance, Government policy does not support the application.
National importance of ball clay
13. MPG1: "B17. The UK is a leading world producer and exporter of china clay and ball clay and the industries make an important contribution to the national balance of payments. Both minerals have a very limited occurrence and it is important that adequate reserves are maintained for long term use. In each case the national importance of the mineral has been recognised by the establishment of China and Ball Clay Consultation Areas designed to ensure that clay bearing land is not unnecessarily sterilised by other forms of development..."
14. The "national importance" of ball clay has never been specified in terms sufficiently precise for anyone to understand quite what it means, or whether it means anything useful at all compared to other minerals, other goods, or other industries. After all, most industries, from pop music to tourism, plead national importance and demand special consideration from Government.
15. I suggest the "national importance" of ball clay is a truism, a received wisdom. Richard Caborn's announcement asks about "the need for the proposed development bearing in mind the national importance of ball clay", which is something of a loaded question .
16. The "national importance" of ball clay seems to date back to the 1946 Enquiry , which identified the state of the ball clay industry as a major impediment to the growth of the UK pottery industry after World War II: "It would be difficult to find any industry in this country where there has been so marked unawareness and lack of initiative on the part of many of the producers to modern industrial trends."  If ball clay became nationally important at that time, that was because the expansion of the UK pottery industry was considered to be a matter of national importance for the immediate post-war regeneration. This led to the 1949 ball clay standing conference, which, in turn, led to the drawing up of ball clay consultation areas and procedures that have remained largely unchanged for nearly 50 years, despite considerably changed environmental priorities [3, 16].
17. Despite its "national importance", trade data for ball clay was lumped in with other potters clay prior to 1962. Since 1988, overseas trade (Office for National Statistics) figures have not been separately recorded for ball clay; it is lumped in with kaolin (china clay) -- a market some five times larger (by �million of mineral produced) employing three times as many people [3, 5]. D.E. Highley (s 8.4) is curiously vague on this point. Why, if ball clay is so special, is it not monitored separately? If it is not separately accounted for, how can anyone state with any confidence what contribution it makes to the national balance of payments -- for the ONS figures represent the UK's import/export account? I return to the question of imports and exports in paragraph 21.
18. Is ball clay nationally important in terms of employment? In terms of the employment created directly by the industry, I would suggest not. The UK Minerals Yearbook 1996 states that 509 people are employed in ball clay extraction out of the 43339 people who work in the UK minerals industry, which is about 1.2% . I shall consider indirect employment in the next section.
19. In truth, the matter of "national importance" has not been re-examined since 1946. Dorset County Council's 1994 Minerals and Waste Plan has pointed out the much greater importance of environmental protection in the 1990s ("It would be surprising if 50 years later priorities were not somewhat different") and has suggested it may be appropriate now to consider "re-opening the debate" .
20. These arguments relate to ball clay as a whole, not to WBB, Southacre, or the clays sought through this application. WBB frames many of the arguments in its Statement of Case in terms of ball clay as a whole, rather than the particular clays it suggests it can gain through this application. Most of the arguments in section 4.4. of its Environmental Statement ("The Economic Value of the Mineral") are framed in this way too .
21. MPG1: "3. In addition minerals and mineral-based products contribute to the balance of payments through exports and import substitution. The minerals industry also provides a market for other goods and services thereby stimulating competitiveness elsewhere in the economy and providing opportunities for employment, sometimes in remote rural areas, where there are few alternatives. It is essential, in order to contribute to the improvement in the long run performance of the economy, that there is an adequate and steady supply of minerals."
22. Most of these statements are considered in the AQUA campaign's proof of evidence on geology (Gerard Edwards). I agree with Mr Edwards' analysis, but I would point out that the issue of exports and import substitution needs much closer scrutiny than WBB has offered. Specifically, let's consider the question of how ball clay became "nationally important" -- as a means to expand the UK pottery industry and increase exports.
23. Following the Report of the Enquiry on the Ball Clay Industry in 1946, export restrictions were set on the mineral. In The Mineral Resources of Britain, John Blunden writes that this was "to ensure adequate supplies for the home market since the export of finished ceramics was argued to be of greater national value than that of the raw material" . Exports increased to present levels only after these restrictions were later withdrawn and following considerable growth in the west European ceramics industry . WBB says it now exports 80% of its clay (by tonnage) to 67 countries worldwide . Meanwhile, the UK ceramics industry is no longer protected by restrictions on ball clay exports, and it has probably never been under so much pressure from foreign imports. In other words, this is a complete reversal of the conditions that apparently led to ball clay's "national importance" and the original export restrictions.
24. In The Economic Importance of Ball Clay, D.E. Highley documents a fall of one third in UK ball clay consumption between 1979 and 1994 and attributes this to "the rising competition that the UK whiteware industry has been experiencing" . Why is it experiencing this competition? The Keynote Market Reports have established themselves as a definitive source of information on questions such as this. What do they tell us about market trends in the UK ceramics industry?
* The 1997 Keynote report on "China and Earthenware" tell us: "In the earthenware and other ceramic domesticware sector, for example, an influx of cheap imports has pushed import penetration to over 70%... UK manufacturers are likely to come under increasing pressure from imported goods and from a range of sources, including the Far East, other western European countries and eastern Europe." 
* In the tiles market, the 1996 Keynote Market report "Bricks and Tiles" informs us: "British manufacturers are particularly affected in their home market by the strength of demand for imported wall and floor tiles, mainly supplied by European Union countries, particularly Spain, Italy, and Portugal. Other sources, for example Turkey and Brazil, are also making an impact on the UK market. These imports are vastly in excess of exports." 
* The UK sanitaryware makers have maintained a trade surplus since 1990, partly because of the protected market enjoyed by the UK's unique design of siphonic flush toilet. But Keynote's 1996 report on "Baths and Sanitaryware" points out that "Foreign competition remains a constant threat for UK sanitaryware manufacturers..." , and as a recent review in Industrial Minerals concluded, the outlook may not be good: "The mature markets of western Europe are unlikely to remain the major consumer of the sanitaryware or be one of its main producers, the shift to eastern Europe is likely to continue for reasons of lower labour costs and a growth in the market of these countries... Not only is Eastern Europe growing in terms of market consumption, unlike the mature markets of the west, it also has the lowest wage costs of the region; just 10% of that of Germany. So it is no surprise that many companies are investing vast sums of money into eastern Europe."  The abolition of the British siphonic flush toilet, which is expected to be prompted by the expiry of some of the UK's water byelaws in 1998, will make it easier and more worthwhile for foreign companies to attack the British sanitaryware market.
25. This suggests a steady decline and loss of jobs in the UK ceramics industry. D.E. Highley offers data on this (see his Table 5) and confirms: "This industry has faced severe competition from overseas producers in recent years" . Ironically, this is partly because ball clay exported by WBB to 67 countries is made into finished ceramic goods overseas and reimported to the UK at prices cheaper than those UK manufacturers can sell at. To give just one example, Highley claims UK tile makers have reduced ball clay consumption by 50% in the last 15 years partly due to overseas competition [3, 8.3]. But Spain is a "major market for UK ball clays" [3, 5.19] and also a major exporter of tiles to the UK in a market where imports are "vastly in excess of exports" (see paragraph 24 above).
26. Unlike WBB, English China Clays (ECC) supplies most of its Dorset ball clays to the home market: "Although a significant proportion of UK ball clay is exported, the majority worked in Dorset is used in home markets. It is the Devon clays which form the greater proportion of clay exported."  In other words, ECC is supplying most of its raw materials to home producers who perform the "value added" part of ceramics manufacture in the UK before the finished goods are sent abroad, thereby contributing much more to the UK economy. By contrast, WBB exports 80% of its clay as a relatively unprocessed raw material. Not only does this deprive the UK of extra "value add" in places such as the Stoke potteries, it also supplies a raw material to foreign manufacturers who export their finished goods to Britain, and thereby undermine British manufacturers.
27. Having said all this, I believe I am justified in suggesting that WBB's Environmental Statement (4.4) 3ii) is grossly misleading when it says
The mineral contributes to the economy in four main ways:
* Earning over £30 million worth of exports each year (£31.5 million in 1993).
* Providing the raw material for the UK whiteware ceramics industry, with sales of some £1000 million in 1992 and supporting around 30,000 employees.
* Sustaining a local extraction and processing industry with annual ball clay sales of £29 million in 1995, with some 600 direct Watts Blake Bearne employees.
* Providing a base for the expansion of British companies overseas. Watts Blake Bearne is now the world's leading producer of ball clays with operations in Germany, USA, France, South East Asia and the Ukraine." 
28. Considering these bullets in turn:
29. The first bullet makes no mention of how much of this £30 million is reimported in the form of finished goods that could have been produced in the UK. In the tiles market alone, imports are running at £115 million a year .
30. The second bullet suggests WBB is holding up the UK ceramics industry single-handed. As I have already considered, ECC might be able to argue this point; WBB is actually exporting most of its material and, I contend, undermining the 30,000 jobs in the UK ceramics industry with every tonne of ball clay it exports.
31. The third bullet is considered elsewhere in AQUA's case (see the proof of evidence by Nick Banwell).
32. The fourth bullet is untrue. At the time of writing (14th June 1998), WBB is 52.8% owned by SCR Sibelco SA, a Belgian company. So more correctly, the British mineral contributes to the expansion of Belgian companies overseas . I ask this inquiry to note that WBB "Devon Clays" is now owned and controlled by a foreign company.
Prejudicial effect on inward investment: tourism
33. PPG21 emphasizes the importance attached by the Government to tourism.
34. PPG21 3.13 "The Government is committed to encouraging tourism in Britain while at the same time conserving those qualities in the environment that are a major attraction for tourism."
35. PPG7: 3.12 "Rural tourism makes a major and growing contribution to rural economic activity and the rural labour market. It needs to develop in a way which draws on the character of the countryside and does not destroy the very asset on which its popularity depends. Given that guiding principle, a wide variety of tourist developments, in terms of nature and scale, can be acceptable in the right location..."
36. RPG10 7.1: Tourism is one of the most important employers in the South West and visitor spending supports many jobs in businesses which provide goods and services to the tourist industry. Tourism can also contribute to achieving conservation and regeneration objectives.
37. Other proofs submitted by the AQUA campaign (David Cox, Zak Kipling, and others) describe the special quality of life enjoyed by residents of the towns and villages that make up the "Bovey Basin". In opposition, the current Government proposed a 10-point plan on Opencast Coal mining, the fourth point of which was to "allow the rejection of planning applications for opencasting where they may prejudice efforts to attract other investment". According to the DETR's Opencast Coal Consultation Paper, which considers how the 10-point plan can be incorporated into Mineral Planning Guidance: "This would require a change in the law. However, where there is clear evidence that opencasting would prejudice other inward investment bringing jobs to an area, this is already a material consideration which MPAs may take into account in deciding applications."  [emphasis added]
38. The ugly moonscape of the worked-out sections of the Bovey Basin surely does nothing to promote tourism in the key corridor between Teignmouth and Dartmoor that includes Teigngrace Parish and the Templer Way long-distance, amenity footpath/trail  ; the alpine waste tips of Newbridge are the first thing most drivers see when they approach Newton Abbot on the A38 from the north. I suggest the opencasting of the Bovey Basin inhibits inward investment from hi-tech service industries who particularly look to areas of high environmental quality when they are relocating.
39. More importantly, perhaps, I suggest the application is in direct conflict with any attempt to attract more tourism to the Templer Way; indeed, that it would detract from the considerable amenity use already made of that route. As far as the Templer Way corridor is concerned, I believe the application would indeed "destroy the very asset on which its popularity depends" -- the unspoiled beauty of the river-side walks.
40. The South West Regional Planning Conference (SWRPC) confirms the importance of increasing both tourism and inward investment: "Tourism is the most important industry, along with agriculture and fishing and service industries. On average the population is growing, attributed to net inward migration, in response to the quality of life the two counties can offer... Devon and Cornwall have long been in the lead within the UK, currently attracting 8.3 million visitors to the region, of whom 700,000 are from overseas, including 365,000 from countries of the EU." 
41. According to RPG10:
42. RPG10 5.5: The South West attracts more than twice as many British tourists as any other region and tourism is an important part of the economy. However, the long term decline in traditional tourism has affected many coastal resorts and other areas. Many financial and service sector companies are reviewing staffing levels and shedding jobs. Agriculture remains an important employer throughout the Region but, together with other primary industries such as mineral working and fishing, is employing fewer people. Between 1981 and 1991, regional employment in agriculture, forestry, and fishing fell by 13%.
43. This was published in 1994 after several bad years for tourism. But according to the Western Morning News, July 1997 was the best summer for 30 years and one of the best tourist seasons since the late 1970s, with the number of visitors "soaring": "After a number of years when the recession and uncertain weather played havoc with visitor numbers, the region has bounced back with a run of good seasons... There is no getting away from the fact that the Westcountry's biggest single industry is tourism. It also happens to be the fastest growing business in the world, so we are in good company." 
Tourism in the South West brings in £2.2 billion each year, twice as much as London. The industry employs 70,000 people in Devon and Cornwall and supports some 8000 businesses . This suggests RPG10's assessment of tourism as a declining sector may have been somewhat premature.
44. Mining and quarrying is, nevertheless, a sector in long-term decline. In 1994, Foundations for the Future: The Economic Assessment of Devon and Cornwall reported that employment in mining and quarrying has fallen from 7000 to 4000 in the last 15 years and "job prospects... particularly for young people, will remain limited for the time being." . As RPG10 states:
45. RPG10 5.7: Economic growth and business competitiveness in the Region must be encouraged in order to generate employment to meet the needs of the future workforce and to reduce unemployment. Development plans should take into account the need to diversify the employment base in order to reduce reliance on declining sectors, both in the areas affected most by such changes and in the Region as a whole.
46. The amenity value of the application area is another aspect of tourism:
47. PPG7: 3.13 Increasing opportunities for people to enjoy the countryside for sport and recreation provides new uses of land in the countryside and is an important source of income and employment. PPG17 advises on providing for the needs of residents and visitors while respecting the rural environment. Footpaths, bridle-ways, byways, cycle routes and tow paths increase opportunities to enjoy the countryside. When deciding planning applications, authorities should take account of the effect of the proposed development on public rights of way, and draw the attention of developers to the separate consent provisions for diverting rights of way. Development should avoid interfering with the rights of way network where possible. Horse riding is increasingly popular in the countryside...
48. Elsewhere in AQUA's case, other objectors argue that this application would have a major effect on the amenity value of the area for local people who walk (or walk their dogs) around the river site and tourists exploring the Templer Way. The Ramblers opposed the original application because it would destroy the footpath network and provide an uncongenial environment for walkers. The application was also opposed by the British Horse Society and the Byways and Bridleways Trust on similar grounds.
49. What is the "opportunity cost" of destroying the application area? According to RPG10, this is something that needs careful consideration:
50. RPG10: "The South West has considerable potential for the development of recreation based on natural amenities, such as rivers, lakes and the coast. However, this should be consistent with the principles of sustainable development and the need to conserve and enhance such features. Plans should set out policies for conservation and development along the routes of national trails (formerly long distance footpaths), such as the South West Coast Path, which show a coordinated approach, developed in conjunction with neighbouring planning authorities. Leisure uses provide one way of diversifying farming activities, and policies should give clear guidance on what will be acceptable.
51. Developing the recreational use of the Templer Way footpath matches this objective entirely; destroying part of it does not.
52. Although the importance of sustainable development is reflected in numerous PPG and MPG notes (and therefore in Government policy) WBB's Statement of Case (p12, para 6) acknowledges it in the most limited possible sense -- as a synonym for ecological protection.
53. What does Government policy say on this important topic? The very first sentence of the very first PPG note makes the Government's intentions clear:
54. PPG1: 1.A key role of the planning system is to enable the provision of homes and buildings, investment and jobs in a way which is consistent with the principles of sustainable development.
55. PPG1: "4. Sustainable development seeks to deliver the objective of achieving, now and in the future, economic development to secure higher living standards while protecting and enhancing the environment. The most commonly used definition is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs" (World Commission on Environment and Development, 1987). The Government is committed to the principles of sustainable development set out in Sustainable Development: The UK Strategy (1994)."
56. For the South West specifically, RPG10 says:
57. RPG10 3.2: Sustainability should be the cornerstone of the Region's development plans and planning decisions. Environmental appraisal of all development plans should ensure that they encompass and promote sustainability objectives as well as showing how environmental and other effects have been appraised in arriving at the plan's policies and proposals.
58. Some would argue that minerals extraction is inherently and unavoidably unsustainable, but the MPG notes nevertheless acknowledge the importance of sustainable development:
59. MPG1: "1. Since MPG1 was first published in January 1988 there have been a significant number of changes to planning legislation. There has also been an increasing awareness of the importance of environmental matters and the benefits of sustainable development."
60. MPG1: "4. The Government White Paper "This Common Inheritance" (Cm 1200) stresses the importance of combining economic growth with care for the environment in order to attain sustainable development. The Government's strategy for sustainable development "Sustainable Development: The UK Strategy" (Cm 2426) sets out an agenda for Government, businesses, organisations and individuals. Government intends the goal of sustainable development to guide future policy."
61. What exactly does sustainable development mean in terms of mineral planning? MPG1 attempts a clarification:
62. MPG1: "35. In decision making, all the costs and benefits of a development including the environmental costs and benefits, need to be taken into account. In particular the objectives for sustainable development for minerals planning are:
(i) to conserve minerals as far as possible, whilst ensuring an adequate supply to meet needs;
(ii) to ensure that the environmental impacts caused by mineral operations and the transport of minerals are kept, as far as possible, to an acceptable minimum;
(iii) to minimise production of waste and to encourage efficient use of materials, including appropriate use of high quality materials, and recycling of wastes;
(iv) to encourage sensitive working, restoration and aftercare practices so as to preserve or enhance the overall quality of the environment;
(v) to protect areas of designated landscape or nature conservation value from development, other than in exceptional circumstances and where it has been demonstrated that development is in the public interest, (see paragraphs 47-49 below); and,
(vi) to prevent the unnecessary sterilisation of mineral resources."
63. These are evaluated in the AQUA campaign's geological proof of evidence (Gerard Edwards) and I agree with Mr Edwards' analysis. I suggest that WBB's Environmental Statement fails to detail a number of "costs", and not just environmental ones. As I have already considered, there is the "opportunity cost" of the scheme to consider -- more specifically, the lost "value add" to the ceramics industry prompted a policy of high exports and the prejudicial effect on inward investment, including lost tourism.
64. Considering the listed items one by one:
65. Point (i): This is a key feature of the Dorset County Council Minerals and Waste Plan, which states:
"6.23 The scarcity of ball clay both nationally and locally, and the conflicts which its extraction generates with nationally important designations such as AONB and SSSIs, have already been referred to. It is therefore essential that, when it has to be worked, it is only used for the most appropriate end-uses for which there are no reasonable alternatives. This is a key aspect of encouraging sustainable development. The industry is clearly conscious of this and indeed it is in its own interests to market its product for its most 'value added' end-uses. Nevertheless, in some manufacturing situations, the blend of clay used may be driven by customer preferences rather than technical need. The use of white firing clays for kiln furniture may be such an example. Whilst it is outside the remit of land-use planning to monitor how materials are used, it is a matter which could be taken into account in assessing the need for a development at the application stage.... it is important to ensure as far as practicable that scarce, high grade materials that occur in sensitive locations are used sparingly and in only the most appropriate end uses. This principle is set out in policy 40." 
Devon County Council has no comparable policy; I suggest it should have.
66. WBB's policy of exporting 80% of its Devon clays seems to conflict with the objective of conserving ball clay. WBB claims "The clay seams which run under the river have very special properties. This means they can be blended with other clays which are already available to make best overall use of the resource ensuring its long term sustainability"  But I have seen no statement from WBB to the effect that, if it were to gain permission for this application, it would cease to work "less valuable" clays elsewhere in its reserves; in other words, WBB wants to have its cake and eat it. WBB has, however, stated that it can manage without the clays it claims this application will release. In its Statement of Case (p17) it says: "The level of inclusion of these clays in blends has had to be reduced to a minimum as a consequence of the currently restricted availability of these clays in the existing quarry, caused by delays in obtaining the planning permission." . This suggests to me that WBB has not been conserving "minerals as far as possible, whilst ensuring an adequate supply to meet needs".
67. Point (ii): This statement is very much the crux of this inquiry, and the fundamental point of contention is what each party means by "acceptable minimum".
68. Point (iii): WBB contends that high quality ball clays allow "minimisation of customers' screened and fired waste through the use of low carbon or refined clays..." . But the second part of point (iii) is about using high quality materials appropriately and efficiently; a key issue for this inquiry is to decide whether WBB is indeed doing this. If the clays are as special as WBB argues, I would argue that a great deal of care needs to be spent in deciding whether WBB is exploiting them properly; if WBB argues that the clays are suitable for all sorts of end-uses, or that determining the end use is a consideration best left to the market, I suggest this undermines WBB's argument about the particular importance of these clays and the need for this application.
69. Point (iv): This is the essence of the AQUA case. I contend that WBB is not encouraging sensitive working, has not specified the restoration or aftercare of the quarry site at all, and will not "preserve or enhance the overall quality of the environment"; indeed, quite the reverse.
70. Point (v): I shall return to this issue in paragraph 103. I would point out here that PPG1/5 indicates that it is not simply designated areas (AONBs, SSSIs, SAMs, etc) that should be considered. I would also point out that areas of nature conservation value include undesignated areas that are the habitats of designated species.
71. Point (vi): WBB makes much of the need to prevent sterilisation of mineral resources; indeed, it fought a public inquiry in 1971 to prevent the sterilisation of the land between the application area and Stover Park by housing. Yet it has told us nothing of the area underneath the proposed Brocks Lane tip site, which is within the Bovey Basin Minerals Consultation Area. Would this tip sterilise mineral resources? If so, how can the tip be allowed; surely it must be rejected for precisely the same reasons that WBB asked nearby housing to be rejected in the 1970s. Unless, of course, WBB intends to remove the tip at some later stage and work this area too, which would involve immense additional disruption to the local community. I return to this issue in paragraph 182.
72. MPG7: "1. Minerals make an essential contribution to national prosperity and in improving the quality of life. However, their extraction can have significant environmental effects and abandoned sites have, in the past, been one of the country's major causes of dereliction. The Government is committed to minimising the adverse environmental consequences of minerals extraction, and have published a sustainable development framework for minerals in "Sustainable Development: The UK strategy" (Cm 2426 January 1994). An important element of this framework is to ensure that land taken for minerals is reclaimed at the earliest opportunity, and to a standard suitable for the intended use."
73. The implicit point here is that minerals working is not, and should not be seen, as a permanent land use, which is explicitly stated in MPG1/5 (quoted in full in paragraph 187); sustainable development means reusing land, rather than allowing it to be permanently taken out of circulation. I shall return to the question of afteruse and restoration later.
74. PPG7: 1.3 "Sustainable development is the cornerstone of both the Government's rural policies and its planning policies. It means managing the countryside in ways that meet current needs without compromising the ability of future generations to meet theirs. This entails accommodating necessary change in rural areas while maintaining and, where possible, enhancing the quality of the environment for local people and visitors. Wealth quality and environmental quality are increasingly connected. The appeal of the countryside is central to its economic prosperity, and healthy economic activity in rural areas facilitates investment to protect and improve the countryside. New development should respect, and where possible enhance, the environment in its location, scale, and design."
75. I suggest WBB's application is completely incompatible with this point. Elsewhere in the AQUA case, other objectors argue that this application would not maintain and would certainly not enhance "the quality of the environment for local people and visitors"; a number of local people will appear at the Inquiry to confirm their fears in this respect. I suggest this application would lessen the appeal of the countryside in this part of Devon and therefore its economic prosperity. WBB's type of economic activity, as I have already argued, may actually be a disincentive to other companies to invest in or protect the countryside. I don't think anyone can convincingly argue that this application will "respect and, where possible, enhance the environment..."
76. PPG7: 1.4 Sustainable development includes integrating the Government's objectives to:
* meet the economic and social needs of people who live and work in rural areas, by promoting the efficiency and competitiveness of rural businesses, and encouraging further economic diversity to provide varied employment opportunities (especially in areas still heavily reliant on agriculture);
* maintain or enhance the character of the countryside and conserve its natural resources, including safeguarding the distinctiveness of its landscapes, its beauty, the diversity of its wildlife, the quality of rural towns and villages, its historic and archaeological interest, and best agricultural land...
77. On the first bullet, I suggest this application does nothing to further economic diversity or provide varied employment; according to WBB's Planning Application form, no new jobs would be created . I believe the loss of several fields of agricultural land might lead to job losses at one of the tenant farms affected. As for the second bullet, I believe the sum of AQUA's case shows that this application is in direct conflict with every one of the listed items: it would not maintain or enhance the countryside; it would not conserve natural resources (it would help to send 80% of them abroad); it would urbanise the landscape and turn a unique natural river system into something managed and artificial; it would devastate biodiversity; it would devastate life in Teigngrace village; it would destroy areas of historical and archaeological significance and disrupt the setting of other important areas that have now been removed from the application area (against the presumptions in PPG16); it would destroy several fields of best agricultural land (see paragraph 115).
78. PPG12: 6.4 "Policies for land use must weigh and reconcile priorities in the public interest. Some priorities are purely economic and social:...
[whole list follows, including]
- growth in the national, regional, and local economies;
- the best use of mineral resources.
79. I have already queried whether this application is in the best interests of the national and regional economy, partly because most of the mineral will be shipped overseas, and partly because of the prejudicial effect on inward investment. I have also queried whether WBB will be making the "best" use of mineral resources, though I accept that "best use" is not defined by PPG12.
80. PPG12: 6.5 "Other priorities have conservation and the environment as their common flavour...
[whole list follows, including...]
- reserving use of high grade mineral resources for the most appropriate use, wherever practicable..."
I have already argued that WBB's application contradicts this policy.
81. The strongest statement of sustainable development in Government policy that I have found occurs in PPG15 (Planning and the Historic Environment):
82. PPG15 1.3 "The Government has committed itself to the concept of sustainable development -- of not sacrificing what future generations will value for the sake of short-term and often illusory gains..."
83. MPG1: 41. The demands made on the extractive industries are often cyclical and the commissioning of extraction sites can take a number of years. It is therefore desirable to ensure continuity of production for mineral extraction, having regard to the provisions of the development plan. A landbank is a stock of planning permissions which relates to non-energy minerals and which provides for continuity of production. Policies providing for the maintenance of landbanks are an important feature of minerals planning because they enable the industry to respond speedily to increases in demand. However when planning consents expire at extraction sites and fresh applications for extraction are made, MPAs will still need to consider the environmental implications of granting planning permission and all other material considerations including the need to maintain a landbank.
84. WBB has given no real details of its current landbank of ball clays, although its Environmental Statement (5.4.1) suggests extraction at Southacre will be "continuing in 100 years" without this application, that White Pit has reserves workable until 2010, that John Acres Lane has at least 15 years workable reserves, that WBB already has permission to divert the B3193 Chudleigh Road and link White Pit to Southacre, and that an eastern expansion of Lower Marsh was planned to begin in 1996. Industrial Minerals carried a report on the current application in mid 1996, prompting Dr Graham Lawson, WBB's Chief Executive, to write a stern letter to the magazine: "Your statement that 'reserves at the Company's Southacre Quarry are about exhausted' is incorrect" . All of this suggests a considerable landbank. In AQUA's geological proof of evidence, Gerard Edwards suggests that considerable amounts of the specific clays WBB seeks are available outside the application area.
85. In Industrial Minerals magazine, March 1996 (pp39-41), it was reported that: "80% of WBB Devon Clays products are exported, and worldwide demand for its clays continues to grow. To meet this growing demand, the company is planning to integrate its South Devon operations to form a single put, thus allowing the efficient extraction of higher levels of ball clay. This expansion will be achieved by close cooperation with local planning authorities and environmental bodies." Although this was not a direct quote from WBB, the context of the article makes it very clear that WBB's intentions were accurately reported, and they have never, to my knowledge, denied that they plan to create a "super pit".
Soon after this article was published, the current plan to expand Southacre became public knowledge and I suggest, therefore, that the Southacre expansion is an intimate part of the "super pit" apparently planned by WBB. Turning Southacre into a super pit implies both horizontal and vertical expansion, and the creation of a considerably greater landbank.
86. What is the appropriate size of a ball clay landbank? Dorset County Council's Minerals and Waste Plan (para 6.13) states: "There are no national guidelines on future ball clay demand or landbank requirements" and "... in view of the fact that ceramic manufacturers seek continuity of supply over the 10-15 year 'life' of production runs, it is considered that it would be appropriate to allocate, if possible, a 15-year provision of resources through the plan period" . In other words, Dorset plan for a 15-year landbank.
87. I have written to Devon County Council's Mineral's Planning Officers asking for details of ball clay applications, consents, and refusals in recent years. At the time of writing, I have had no reply. According to the General Development Order (GDO), councils are required to keep this information:
88. MPG2: 20. The GDO requires local planning authorities to maintain a register of all planning applications made in respect of land in their area. Particulars of any decision given by them or by the Secretaries of State must also be recorded and an index must be provided. Where there is a conditional grant of permission, the conditions should also be recorded in the register of local land charges, in view of the possible need to enforce them against any subsequent owner of the land. The index should include a separate minerals subject index for applications where the proposed development consists of or includes mining operations. It is also advisable, for administrative purposes, for county planning authorities to maintain a register of mineral applications, decisions and the conditions imposed on any conditional grant of permission.
Miscellaneous planning issues
89. The relationship of this application to the development plan for the area (the third point identified by Mr Caborn for special consideration) is considered elsewhere in AQUA's evidence. What does Government policy say, generally, about this topic?
90. MPG1: 21. It is important that plans are as up to date as possible and that they continue to address current issues. The extent to which a plan is up to date is a material consideration in the determination of planning applications. Further advice is contained in paragraph 27 of Planning Policy Guidance Note 1, "General Policy and Principles", (PPG1)."
91. MPG1: 26. In drawing up policies and proposals for their development plans, MPAs should appraise the policy options in terms of the social, environmental and economic effects. They should be able to demonstrate that all the options have been assessed and that those selected represent the best balance of social, environmental and economic costs and benefits, through full consideration of all resources and the principles of sustainable development and the need to maintain an adequate and steady supply of minerals. The process of preparing and reviewing development plans provides an opportunity for local policies to be tested in the light of Government guidance. Further advice is contained in section 5.52 of PPG 12 and in the "Environmental Appraisal of Development Plans: A Good Practice Guide" published by HMSO in November 1993."
92. I would argue that the Devon County Council development plan (Minerals Local Plan) fails by not making similar attempts to formulate a sustainability test similar to that included in Dorset's Minerals and Waste plan. I have argued already that this application falls short on "full consideration of all resources and the principles of sustainable development and the need to maintain an adequate and steady supply of minerals".
93. MPG7: "31. Before granting planning permission and drawing up conditions, mineral planning authorities are advised to consider not only the reclamation and after-use of an individual site but also, where applicable, to relate these to a strategic plan for the area. This will be particularly important where there is a concentration of mineral workings, or where the reclaimed landform will result in a permanent change in the local landscape. Policies and guidance in Minerals Local Plans, Part II of UDPs and other local plans should assist in these considerations."
94. PPG1: 47. Questions of prematurity may arise where a development plan is in preparation or under review, and proposals have been issued for consultation, but the plan has not yet been adopted or approved. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity. This may be appropriate in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. A proposal for development which has an impact on only a small area would rarely come into this category; but a refusal might be justifiable where a proposal would have a significant impact on an important settlement, or a substantial area, with an identifiable character. Where there is a phasing policy in the development plan, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.
95. PPG1: 48. Other than in the circumstances described above, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging development plans which are going through the statutory procedures towards adoption (or approval). The weight to be attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached. For example:
* where a plan is at the consultation stage, with no early prospect of reaching deposit, then refusal on prematurity grounds would seldom be justified because of the lengthy delay which this would impose in determining the future use of the land in question;
* where a plan has been deposited but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted (or approved) and replace those in the existing plan. The converse may apply if there have been objections to relevant policies. However, much will depend on the nature of those objections and also whether there are representations in support of particular policies;
* where an Inspector has recommended in favour of relevant policies to which objection has been raised, refusal on prematurity grounds is unlikely to be justified for an application which is consistent with these policies.
96. PPG1 49. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the development plan process."
97. The Bovey Basin Strategy is considered elsewhere in AQUA's evidence. I argue that MPG7/31 strongly suggests that an application of this sort should not be considered before the Bovey Basin Strategy has been drafted, let alone finalised. I suggest this would amount to prematurity of the kind identified in PPG1/47-49.
98. Perhaps more importantly, Devon County Council was proposing to grant permission for this application before the Devon Minerals Local Plan (which has been in Consultation form for four years) had been finalised. I suggest this application is "individually so substantial... [and its] cumulative effect would be so significant, that to grant permission would prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context", and that it is therefore premature as defined in PPG1 47-49.
99. The application area lies within the Bovey Basin Minerals Consultation Area, though the two river corridors are excluded from the areas of search.
100. MPG2: 26. Consultation area procedures exist to ensure that district planning authorities who are not mineral planning authorities do not unduly sterilise important mineral resources by permitting surface development. County councils are empowered to declare mineral consultation areas by virtue of Section 86(2)(c) of the Local Government, Planning and Land Act 1980. When a district planning authority receives a planning application for any development within an area which the county have notified as one in which development would affect or be affected by the winning and working of minerals (other than coal) the district must consult the county council as mineral planning authority. The district may not determine the application until the expiration of a 28 day period from the time when they consulted the mineral planning authority, or such longer period as they may agree. Mineral consultation areas do not in themselves constitute a land use policy; there is no presumption for or against mineral development in the notified areas. However any development plan policy on the safeguarding of minerals found within such areas would be a material consideration. [emphasis added]
101. MPG2: "27. Special procedures exist for the establishment and operation of mineral consultation areas for china and ball clay. Counties consult the district, the industry and the British Geological Survey before establishing mineral consultation areas for these minerals. If subsequently there is a disagreement between the county, the district and the industry over whether a particular non-mineral development should be permitted, the application should be referred to the Secretary of State for the Environment. In certain circumstances the development proposal may be called in by the Secretary of State for his own determination."
102. The Minerals Consultation Areas for ball clay are largely unchanged since World War II and reflect none of the important land-use changes in the Bovey Basin in the last 50 years. Dorset County Council has argued that it may be time for "reopening the debate" .
103. I do not propose to go into detail here about the ecological/nature conservation impacts of the scheme, except where specific points are made in the Government planning policy documents that I feel the Inquiry should consider; I will leave that to other objectors.
104. Government policy on nature conservation is set out principally in PPG9:
105. PPG9 2: The Government's objectives for nature conservation are to ensure that its policies contribute to the conservation of the abundance and diversity of British wildlife and its habitats, to minimise the adverse effects on wildlife where conflict of interest is unavoidable, and to meet its international responsibilities and obligations for nature conservation. Sound stewardship of wildlife and natural features is not a task of Government alone. It depends also on the decisions made by local planning authorities, landowners and others who influence the development and use of land.
106. According to WBB's Statement of Case, PPG9 "refers to SSSIs, SPAs, SACs, RAMSAR sites, NCR and GCR sites, NNRs, AOSPs, and LNRs - none are present within the application area". It is true that the site holds none of these designations, and I understand the relevance of that will be tackled by other objectors (notably the Devon Wildlife Trust). The two rivers are known otter habitats (see Environmental Statement, s8.0, Ecological Assessment river corridor survey map 5) and the site contains many mature trees are expected to contain bat roosts. Otters and all species of bat are listed in annex IV of the European Habitats Directive (92/43/EEC, transposed into UK law as the Conservation (Natural Habitats etc) Regulations 1994) and their "breeding sites and resting places" are "strictly protected" from destruction and disturbance. The lack of a wider designation on the site (SSSI, SAC, pSAC etc) does not matter, for these species are strictly protected in their own right whether a site is designated in this way or not.
107. I expect Devon Wildlife Trust to discuss the relevance of SSSI designation in this case, but I will touch on it briefly in case they do not. SSSIs are specifically designed to conserve biodiversity. They are chosen to be representative, rather than all-inclusive; a site can be of SSSI quality without being designated as an SSSI. According to English Nature, over 40% of SSSIs are in an unfavourable state and 21% are under threat ; this suggests to me that great care should be taken to conserve areas of SSSI quality, as well as SSSIs. I believe DWT will argue that the application area contains sites of SSSI quality.
108. It is worth pointing out that designation is a matter of attaching additional weight to a material consideration; the lack of designation does not mean the lack of a material consideration, as PPG1 makes clear:
109. PPG1 5: ...conserve both the cultural heritage and natural resources (including wildlife, landscape, water, soil and air quality) taking particular care to safeguard designations of national and international importance [emphasis added]
110. This is confirmed in RPG10:
111. RPG10 4.17 Policies concerning all forms of development should take account of nature conservation interests. Plans should seek to support sites of nature conservation interest by promoting the conservation of features important to wildlife, such as hedgerows and river banks, to prevent sites from becoming isolated. There are many sites, other than those protected by law, which make an important contribution to sustaining the abundance and diversity of the Region's wildlife. Policies should seek to protect habitats of county-wide or local significance, but the greatest weight should be given to the protection of nationally and internationally designated sites.
112. More generally, RPG10 sets out the particular importance of the environment in the South West:
113. RPG10: 3.3 The South West is a Region of outstanding environmental quality and diversity which is a national asset and should not be put at risk. Development plans should ensure that nationally and internationally designated areas and features are protected from damaging development and change. They should also recognise the importance of features which contribute to the Region's attractiveness for tourism and recreation - the undeveloped coast, historic cities and towns such as Bath, Salisbury and Cheltenham and some areas which adjoin those of national importance. These assets also need to be positively managed.
114. RPG10: 4.8 The South West encompasses a diverse range of landscapes including the uplands of Exmoor, Dartmoor and the Wessex Downs, the rolling hills of the Cotswolds and Blackdowns, the Dorset heathlands and the lowlands of the Somerset levels. The diversity and quality of the landscape is a major regional asset which is valued by residents and visitors alike.
115. PPG1: 29. Agriculture is the major use of land in the countryside. In accordance with the principles of sustainable development, the best and most versatile agricultural land is a national resource for the future. Considerable weight should be given to protecting such land against development." [emphasis added]
116. PPG7: 2.17 Within the principles of sustainable development, the best and most versatile agricultural land should be protected as a national resource for future generations. This is defined as land in grades 1,2, and 3a... local planning authorities should therefore give considerable weight to protecting such land against development. They should bear in mind that once agricultural land is developed, even for 'soft' uses such as golf courses, its return to best quality agricultural land is seldom practicable. [emphasis added]
117. According to WBB's Environmental Statement (Figure 13.1), most of the application area is either grade 1, 2, or 3a land; the tip site appears to be entirely grade 1 land. According to WBB's Statement of Case, MAFF withdrew its objection to this "subject to any planning permission containing MAFF's prescribed conditions relating to soil stripping, storage, and replacement". MAFF's position seems to contradict PPG7. How can a clay-waste tip ever again be used as best quality agricultural land? Crops won't be grown on it, as they are grown in those fields today. And the best quality agricultural land on the east side of Brocks Lane will be lost forever.
118. MPG1 might appear to contradict this, for it suggests reclamation can take place:
119. MPG1: 50. The Government's policy is set out in PPG 7. The best and most versatile agricultural land (Grades 1, 2 and 3a of the MAFF Agricultural Land Classification) is a national resource for the future and considerable weight should be attached to protecting such land because of its special importance. However, unlike most other forms of development, land from which minerals have been extracted can be restored either to its former use, or to a beneficial new use. Therefore when considering the allocation of land for minerals development and in deciding any application for planning permission affecting agricultural land, the agricultural implications must be considered together with the environmental and economic aspects of the proposal and the feasibility of a high standard of reclamation to an appropriate after-use. Further advice on this is contained in Minerals Planning Guidance Note 7, "The Reclamation of Mineral Workings", (MPG 7).
MPG7: 13. On many sites, the ability to achieve high standards of reclamation should enable mineral extraction to occur without the irreversible loss of land quality. Where minerals underlie the best and most versatile agricultural land it is particularly important that restoration and aftercare preserve the long-term potential of the land as a national, high quality, agricultural resource.
120. But it doesn't alter the fact that half the best quality agricultural land within the application area will be quarried away entirely, while the other half will disappear under the proposed tip; this surely does preclude a high standard of reclamation and an agricultural afteruse. According to WBB's recent Factsheet, "6 hectares of the tip site will comprise of tree planting to screen the tip, floodplain of new riverine trees, grassland and seasonal wetland..."  Although this may eventually be an ecological benefit, it is nevertheless still a loss of 6 hectares of grade 1 agricultural land that will never be returned to production.
121. MPG7: A2. Restoration and aftercare should be seen as an integral part of the working of the site. The protection, for example, of the soil resource at all stages during the life of the site is of paramount importance to the success of reclamation, as is the need to work towards a final landform (with or without the use of fill), which is in keeping with the natural character of the area, and suitable for the intended after-use of the site."
122. Consultation with MAFF appears to have ensured the conservation of soil, but not the appropriateness of the afteruse. What is the purpose of this consultation? According to MPG2:
123. MPG2: 36. Consultation requirements with the Minister of Agriculture, Fisheries and Food (MAFF) (in Wales the Secretary of State for Wales) under the GDO will be amended during 1988 to reflect national policy, which is concerned with protecting significant areas of the best and most versatile agricultural land from irreversible development. At present before a mineral planning authority grants planning permission, consultation is required where a proposed development does not accord with the provisions of the development plan and where it entails either the development of four hectares or more of agricultural land, or would entail a smaller initial loss which is likely to lead to farther loss of agricultural land in the future. These size limits will be amended to require consultation on applications involving the initial or progressive loss of 20 hectares or more of Grades 1, 2 or 3A agricultural land. Irrespective of the size of the site or the land quality, the mineral planning authority is required to consult MAFF (or the Secretary of State for Wales) under Section 30A of the 1971 Act before imposing an aftercare condition which specifies an agricultural use for the restored land as to whether or not it is appropriate to specify such a use. Consultation is also required on whether the steps to be taken to achieve the desired end use should be specified in an aftercare condition or in an aftercare scheme, on the steps or scheme itself and on whether the specified steps are being taken. (DOE Circular 1/82 (WO 3/82) gives farther advice. More details on aftercare will be contained in a future MPG 'The Reclamation of Mineral Workings'. DOE Circular 16/87 (WO 25/87) advises on the safeguarding of agricultural land, relevant procedures and technical guidance on agricultural considerations including the land classification system). It is expected that these two types of statutory consultation will cover most of the applications on which mineral planning authorities will wish to seek advice from MAFF (or the Secretary of State for Wales). In addition paragraphs 5 and 6 of Annex A to DOE Circular 16/87 (WO 25/87) give guidance on non-statutory consultations which may be sought either on the initiative of the Agriculture Departments, or by the authority seeking advice on matters of technical detail.
124. The withdrawal of MAFF's objection seems to me to be inconsistent with this stated aim of "protecting significant areas of the best and most versatile agricultural land from irreversible development".
Archaeology and cultural heritage
125. A separate proof of evidence is being submitted by the AQUA campaign about the archaeological and heritage aspects of the application area and its setting. What does Government planning policy say about this? The relevant documents are PPG15 (listed buildings and conservation areas) and PPG16 (archaeology).
126. The two most important paragraphs of PPG16 are:
127. PPG16: 6. Archaeological remains should be seen as a finite, and non-renewable resource, in many cases highly fragile and vulnerable to damage and destruction. Appropriate management is therefore essential to ensure that they survive in good condition. In particular, care must be taken to ensure that archaeological remains are not needlessly or thoughtlessly destroyed. They can contain irreplaceable information about our past and the potential for an increase in future knowledge. They are part of our sense of national identity and are valuable both for their own sake and for their role in education, leisure and tourism. [emphasis in original]
128. PPG16: 8. With the 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. Cases involving archaeological remains of lesser importance will not always be so clear cut and planning authorities will need to weigh the relative importance of archaeology against other factors including the need for the proposed development... [emphasis in original]
129. This application has already been considerably amended to remove archaeologically important sites from the application area, specifically an important Mesolithic (mid Stone age) site east of Brocks Farm. But the proposed quarry and tip would nevertheless affect the settings of these sites. PPG16 also makes it clear that there should be a presumption against development of nationally important sites, whether scheduled or not; in AQUA's archaeological proof, it is argued that Twin Yeo farm is just such a site. Preservation in situ is regarded as a controversial practice by the archaeological profession, but as far as Twin Yeo farm is concerned, that doesn't matter; preservation in situ is clearly impossible in the middle of an opencast quarry.
130. MPG2 sets out the considerations that would apply if any site on the application area should turn out to be worthy of designation as a Scheduled Ancient Monument (SAM).
131. MPG2: 43. Mineral workings, both surface and underground, may damage or destroy structures and remains that are of importance to the national heritage. Ancient monuments, both above and below ground level, may be scheduled by the Secretaries of State under Section 1 of the Ancient Monuments and Archaeological Areas Act 1979, as amended by the National Heritage Act 1983. The fact that a monument is scheduled means that any operator intending to carry out works likely to affect it requires scheduled monument consent from the appropriate Secretary of State. Where he grants consent for operations which will destroy the monument he will normally specify conditions to ensure that satisfactory arrangements are made for fall prior excavation and recording of the site.
132. MPG2: 44. Local planning authorities are generally aware of scheduled monuments and may take these into account when handling planning applications. Nevertheless, the existence of a planning permission (or any other right to do the works) does not do away with the need to have scheduled monument consent. Developers may find it helpful to hold discussions with English Heritage, or Cadw: Welsh Historic Monuments in the case of monuments in Wales, before a formal application for scheduled monument consent is made. It is also suggested that they plan their operations as far as possible in conjunction with the local archaeological unit wherever an archaeological site, even if unscheduled, is likely to be affected by a proposal for mineral working.
133.MPG2: 45. Part II of the Ancient Monuments and Archaeological Areas Act 1979 allows for the designation of 'areas of archaeological importance'. Within these areas archaeological investigating authorities appointed by the Secretaries of State are given a right of access to land subject to impending development. That right of prior access can extend for as long as six months in all from the date when a developer serves notice of his intention to disturb or cover the ground concerned, to allow investigation and excavation before the planned development can proceed. In order to enhance the co-operation between mineral operators and archaeologists Government Departments have agreed a 'Code of Practice for Mineral Operators' with the Council for British Archaeology and the Confederation of British Industry to cover all sites in England, Scotland and Wales, whether designated or not. While mining operations carried out in accordance with this Code of Practice are exempt from the statutory provisions of Part II of the Ancient Monuments and Archaeological Areas Act 1979 by virtue of the Areas of Archaeological Importance (Notification of Operators) (Exemptions) Order 1984, scheduled monuments remain outside these arrangements and the scheduled monument consent procedure of Part I of the Act will still apply. The Code of Practice, which has also been adopted by the British Coal Corporation, applies to all mineral bearing land and sets out the agreed procedure for the liaison between the minerals operator and the relevant archaeological body for the county concerned.
134. I suggest it would be highly premature to permit the destruction of sites within the application area that may turn out to be nationally important and worthy of designation as Scheduled Ancient Monuments (SAMs) before a proper archaeological investigation of that area has been carried out. WBB's Statement of Case makes no mention of PPG16, but states simply: "It is intended that by the time of the Public Inquiry the Company will have agreed with the County Archaeologist the appropriate treatment of the identified areas." 
135. RPG10 makes it clear just how important the historic environment is in the South West:
136. RPG10: 4.21 The Region is rich in areas, sites and structures of historic importance which contribute to the distinctive character of the South West. These include settlements and individual buildings of considerable historic or architectural quality as well as ancient monuments and historic landscapes. The quality of the built environment in the South West is an important factor in the Region's popularity as a place to live and as a tourist destination.
137. RPG10: 4.23 The South West contains an impressive range of archaeological features and remains, from individual sites to extensive historic and prehistoric landscapes such as Dartmoor and Bodmin Moor. Stonehenge/Avebury and associated sites are internationally important, having been designated a World Heritage Site by UNESCO. Development plans should carry forward the advice in PPG16 on the protection of nationally important archaeological remains and their settings. In the case of remains of lesser importance, policies should seek to balance preservation against the need for development. Where policies are aimed at protecting remains in an extensive area, the area covered should be based on clear evidence of its likely archaeological importance.
138. I understand other objectors (including members of the AQUA campaign) will provide details of the considerable personal nuisance they suffer from dust that originates from the Bovey quarries and tips. The detailed s106 conditions agreed in private between WBB and Devon County Council have still not been made public. Government policy on dust from minerals working can be found in MPG2:
139. MPG2: 86. Where the statutory powers of control discussed below do not apply, or could not be applied effectively, it may be desirable to impose planning conditions requiring the adoption of recognised methods of suppression and control of dust, such as the spraying of materials with water at suitable stages in their handling and transport, the watering of those areas of the site regularly used by vehicles (to prevent the raising of dust) and the use of dust extractors. In all cases the practicability and the cost of the methods must be considered carefully and professional advice sought.
140. MPG2: 87. When considering the need to impose planning conditions it should be borne in mind that dust, smoke and fumes are subject to control under several statutes:
141. The Health and Safety at Work etc. Act 1974 provides that at prescribed premises the 'best practicable means' must be used to prevent the emission into the atmosphere of noxious or offensive substances and for rendering harmless and inoffensive any substances which may be emitted. Cement works, lime works and mineral works (defined as works in which metallurgical slags, pulverised fuel ash or minerals other than coal or moulding sand in foundries are processed) are prescribed for the purposes of the Act [See the Health and Safety (Emissions into the Atmosphere) Regulations 1983]. In addition these works are required to be registered under the Alkali etc. Works Regulation Act 1906. A condition of registration is that the plant must be approved before work can be carried out. Enforcement of this legislation falls to Her Majesty's Inspectorate of Pollution whose headquarters are located within the Department of the Environment.
142. * Other statutes which may apply to emissions from mineral working are the Clean Air Acts 1956 and 1968 and the Public Health Act 1936. The Clean Air Acts control, in particular, the emission of smoke, grit and dust from furnaces and the emission of smoke and fumes from colliery spoil banks. Where neither of these Acts, nor the 1974 Act apply, a nuisance from mineral working may be dealt with under the Public Health Act 1936 or by action at common law. These Acts are enforced by local authority Environmental Health Departments in relation to those mineral workings which are not prescribed premises for the purposes of the 1974 Act.
Highways and traffic
143. The effect of WBB's quarrying traffic on local residents and communities is detailed elsewhere in the AQUA evidence. Government policy has a number of things to say on this:
144. MPG2: 33. Where the proposed development involves the formation, laying out or alteration of any means of access to a highway which is not a trunk road and the local highway authority concerned are not the authority making the decision, the local planning authority are required under the GDO to consult that local highway authority.
145. Presumably this means that Devon County Council's Development Control Committee should have consulted its highways/transport committee?
146. MPG2: 78. Many matters concerning the use of highways can be dealt with under the Highways Act or other statutes. The transport of excavated mineral material constitutes one of the heaviest types of traffic. Rural roads are, sometimes inadequate for the purpose; surfaces can also be liable to break up under the strain. Section 59 of the Highways Act 1980 provides for the recovery of any extraordinary expenses which have been or will be incurred by the highway authority on maintenance due to excessive weight or extraordinary traffic. Section 278 of the Highways Act 1980 permits the highway authority to enter into agreements with others who would especially benefit from such road works, for them to contribute towards the cost of modification works and may extend to maintenance payments. Such works might include the widening of approach roads, the provision of passing places or the improvement of road junctions. Planning permission cannot properly be made conditional on such an agreement being made but such an agreement may be made conditional on planning permission being granted. Mud deposited on roads by quarry traffic may be dealt with under the general provisions of Sections 148 and 149 of the Highways Act 1980 but, unless the roads in the immediate vicinity of a quarry can be seen to be consistently muddied, identification of the source of soiling could prove difficult. Prevention of environmental damage at source is preferable to action through the courts after the event. The imposition of a condition requiring the installation and use of wheel and perhaps body washing equipment near the site exit or the provision of concrete roads leading to the exit are alternative ways of dealing with the problem."
147. WBB Statement of Case says: "The routing of traffic will also continue as currently occurs between the Preston Manor complex and Teignmouth docks. There are therefore no implications for highways interests over and above those which already exist." Elsewhere in AQUA's case, it will be demonstrated that these "highways interests" amount to an intolerable burden on local residents, particularly those in Kingsteignton.
148. RPG10 confirms the importance of this point:
149. RPG10: 8.11 It is important that plans seek to minimise the adverse effects on the environment and on communities caused by the transportation of minerals. Use of the rail network to transport minerals should be encouraged and, where this is not possible, road routes which minimise the impact on communities should be provided, improved and maintained, through developer contributions where appropriate. Mineral planning authorities should, jointly or individually, in their development plans make every effort to identify, safeguard and, where necessary, make provision for suitable rail depots to receive and distribute imported aggregates. Plans should also consider the extent to which minerals can be transported through the Region's ports.
150. MPG2: 91. It is recommended that in the majority of cases a condition should be imposed stipulating the noise levels (in dBA terms) which should not be exceeded at the boundaries of the site or outside key nearby buildings. Exceptionally noisy short term operations, such as the construction and removal of earth banks and blasting, may need to be excluded or provided for separately. Advice on the prediction of noise levels from plant associated with (among other things) mineral extraction and guidance on how to reduce noise disturbance, has been published by the British Standards Institution in BS 5228:1984 - 'Noise Control in Construction and Open Sites:' Part 3 (which should be read in conjunction with Part 1) is specifically about noise control applicable to surface coal extraction by opencast methods.
151. PPG24: 21. Detailed guidance on assessing noise from construction sites can be found in BS5228, parts 1-4. In particular, Part 1: 1984, "Code of practice for basic information and procedures for noise control" will be useful because as well as giving general advice it describes a method of predicting noise from construction sites.
152. MPG11: 15. BS5228 provides basic information and a code of practice for procedures for the control of noise on construction and open sites. It has been applied to the prediction of noise emissions from mineral sites, and gives advice on how monitoring should be carried out...
153. MPG11: 10. In preparing applications for the winning and working of minerals, developers should bring forward proposals for the control of noise. To do this they will need to carry out two steps in order to establish the existing noise climate of the locality and the likely future noise climate with the proposed development. These are:
i. a survey of background noise to determine the existing noise level (LA90T) 2 in the area, including that at nearby properties affected by the noise;
ii. an estimation of the predicted likely future noise which would arise from the development, and its effects at nearby properties.
154. MPG11: 14. While many disagreements between mineral operators, MPAs and community groups can be overcome if there is a standard approach to predicting the likely level of noise from a proposed development, the circumstances of individual cases must be taken into account...
155. The Noise Assessment in WBB's Environmental Statement (11.0) by A.P. Mayne  raised several questions in my mind:
i) It does not take account of the fact that WBB intends to remove the trees that currently screen Teigngrace and nearby areas from the noise generated by Southacre Quarry.
ii) It doesn't properly allow for the current depth of Southacre Quarry compared to the shallowness of the workings in the application area. Noise from the current workings is effectively screened by them happening some considerable distance below ground level, whereas the proposed workings -- the initial quarrying as well as the river diversion works -- will happen at ground level.
iii) The background noise assessment was carried out during the daytime between 8am and 4pm, but the draft s106 conditions suggest working hours may stretch from 7am to 6.30pm  and that work may happen at weekends too.
iv) Every scientist knows that measurements are never 100% accurate -- there is always a margin of error. I am a scientist, and it was not clear to me from the assessment what margin of error should be attached to each of the measurements and estimates. This is standard scientific practice; indeed, it is something even A-level students are expected to carry out routinely as part of their practical work. BS5228 part I annex E.1 suggests attaching error estimates and a confidence level to noise measurements made by regular and single sampling, and it suggests a range from ñ1.5 dB to ñ5 dB. As I shall argue in paragraph 159, this is a most significant omission .
156. MPG11: 34. The Government takes the view that during the working week, except in the circumstances below... the daytime nominal limit at noise-sensitive properties used as dwellings should normally be 55 dB LAeq,1h (free field) where 1h means any of the one hour periods during the defined working day. This is roughly equivalent to the noise made by a person talking normally and is generally agreed to be a tolerable noise level; above this level, continuous noise level could well cause annoyance. The night-time nominal limit should be 42 dB LAeq,1h (free field) at noise-sensitive dwellings. "Free field" means at least 3.5 m away from a facade.
157. WBB's Statement of Case says: "The conclusions drawn from this study [by Mr Mayne] show that the requirements of MPG11 (para 34) will be complied with and that a planning condition imposing a maximum daytime noise limit of 55 dBLAeq,1h will be capable of compliance."  I suggest any condition needs to define "daytime" clearly, given the discrepancy I have highlighted above. Mr Mayne's calculations show that weekends are quieter than weekdays and suggest it may be appropriate to impose a different condition covering working times outside the 8am-4pm period when the background noise levels were estimated.
158. MPG11: 37. A lower nominal daytime limit might be appropriate in quieter rural areas if a limit set at 55 dBLAeq,1h for noise from the proposed development would exceed the existing background noise levels by more than 10 db(A). In these circumstances, MPAs and operators should have regard to how the noise from the development would relate to existing background levels and to the likelihood of complaints arising from the proposed development; and there may then be a need to modify the nominal daytime limit to a lower level in the light of local circumstances.
159. Anyone familiar with Teigngrace might suppose that it qualifies as a "quieter rural area" and that a noise condition of 55 dBLAeq,1h would be inappropriate. MPG11 suggests a lower limit might be appropriate if background levels were 45 dBLAeq,1h or lower. WBB has not supplied this information in its noise assessment. Its background noise measurements are expressed in dBLAeq,8h (the equivalent continuous sound level of a notionally steady sound having the same energy as a fluctuating sound over 8 hours), rather than dBLAeq,1h (the equivalent continuous sound level of a notionally steady sound heaving the same energy as a fluctuating sound over 1 hour). The background LAeq,8h measured at Ventiford Cottages is 49 dB for a weekday, which is 6 dB quieter than the 55 dB noise condition proposed, and 4 dB noisier than the definition of a "quieter rural area". If using an eight hour equivalent measurement results in a background noise level 4 dB greater than using a one hour equivalent measurement, this would move Ventiford Cottages into the "quieter rural area" category. Alternatively, if the margin of error of the measurements and estimates was greater than or equal to ñ4 dB, that would also move Ventiford Cottages into the quieter category. These may seem like small quibbles in the numbers, but as decibels are measured on a logarithmic scale, a difference of 10 dB corresponds to a doubling in loudness: the currently proposed noise condition would be, subjectively, twice as noisy as the current environment of Ventiford Cottages, where Mr Mayne describes WBB's current operations as "inaudible". Finally, MPG11 (paragraph 31, note 4) does acknowledge, in rather small print, that: "The World Health Organisation's publication 'Environmental Health Criteria 12; Noise' states that general daytime outdoor noise levels of less than 55 dBLAeq are desirable to prevent any significant community annoyance.
160. MPG2: 117. Every effort should be made to maintain and protect existing trees. Section 59 of the 1971 Act makes it a duty of the local planning authority to ensure, whenever it is appropriate, that in granting permission for any development adequate provision is made, by imposing conditions, for the preservation and planting of trees. Also Section 60 of the Act empowers a local planning authority to protect trees by making tree preservation orders (TPOs) which bring under the control of the authority the felling, lopping, topping and uprooting of specified trees and woodlands. However, planning permission, granted or deemed to be granted, overrides any existing tree preservation orders on the site and enables trees to be lopped or felled without specific consent if this is necessary in order to carry out the development authorised. This does not apply where the development is permitted under the GDO. Therefore, if trees - including those covered by a TPO - are to be retained, special provision should be made by condition, to afford the trees sustenance and protection from damage, or to require their replacement if damaged.
161. WBB's Environmental Statement (8.0, Ecological Assessment) details the loss of very many mature trees. The draft s106 condition 12 states: "The existing trees, shrubs, and hedgerows within the site not required to be removed for the diversion shall be retained and shall not be felled, lopped, or topped, or grubbed out until the season prior to that phase commencing, without the previous written consent of the Mineral Planning Authority." This does not entirely make sense, for it suggests even unaffected trees are to be felled if WBB should require that. The draft condition further recommends planting new trees to replace mature trees, shrubs, or hedgerows that may be lost "as a result of operations hereby permitted", which implies the equivalence of the newly planted trees and mature trees lost; I expect other objectors to tackle this point in more detail. I would simply note here that the draft condition does not make provision for the preservation and planting of trees, as MPG2 recommends. I suggest the condition should preclude the felling of certain trees and require the planting of other trees, irrespective of whether mature trees are felled.
162. The relationship of this point to WBB's application is tackled elsewhere in AQUA's evidence.
163. MPG1: 52. There is a substantial body of legislation in relation to water supply, pollution and land drainage. The legislation includes national legislation to implement the 1980 EC Groundwater Directive (80/68/EEC); and in particular the provisions of the Water Resources Act 1991 which includes the powers and duties of the National Rivers Authority. MPAs and the industry should take into account the need to protect the flow and quality of surface and groundwater supplies in accordance with the legislation and ensure that changes in the water table as a result of mineral extraction do not cause unacceptable changes to the water environment, particularly water resources.
164. I would argue that WBB's application is incompatible with this stated aim not to cause "unacceptable changes to the water environment", particularly the flow and quality of the Teign and Bovey.
165. MPG1: 53. The potential of certain mineral developments to affect aquifers and groundwater, individually or cumulatively, may therefore need to be considered in defining areas for mineral development in MLPs, as well as being material considerations in determining planning applications for individual sites.
166. MPG2: 35. Mineral workings or the disposal of mineral wastes may have an adverse effect on surface and underground waters, both as regards quality and quantity, and drainage and water courses may be silted up, polluted or otherwise affected. Tipping on the banks of streams or rivers or on their flood plains may precipitate flooding whilst the possibility of saline infiltration of aquifers or inundation by the sea when workings are on or near the coast must be considered. For these reasons mineral planning authorities should consult the relevant water authority before determining applications which consist of or include mining operations.
167. Although the Environment Agency made representations about this application, I believe it did not have the opportunity to consider the links between WBB's application and ECC's proposed expansion of the Newbridge tip. The probability of this leading to flooding was not considered by the Newbridge tip Inquiry last year, or by the Devon County Council Development Control Committee. It is a matter of great importance and I believe it must be considered by this inquiry.
168. MPG2: 101. The EEC directive on the protection of groundwater (80/68/EEC) requires: prevention of the introduction into groundwater of certain highly dangerous substances; and limitation on the introduction of certain less toxic substances so as to avoid pollution of groundwater.
169. In order to comply with these requirements all activities giving rise to discharges to groundwater either directly or indirectly (for example by the leaching out of these substances) must receive prior authorisation. Water authorities have been appointed the competent authorities to implement the directive. Under Part II of the Control of Pollution Act 1974 (the 1974 Act) the consent of the water authority is required for any discharge of effluent made direct to groundwater. Discharges of effluent to land, which may reach groundwater indirectly, also require consent if made from buildings or from fixed plant. However water authorities' powers of control in this area are limited; for example leachate from spoil tips is not controllable. Similarly since wastes from mines and quarries are not normally subject to the licensing control under Part 1 of the 1974 Act the water authorities will rely upon the planning authorities to ensure that appropriate conditions are attached to the planning permission for the disposal of such waste to prevent the pollution of groundwater. Under Section 18 of the 1974 Act the Secretaries of State have the powers to bring mining waste within the provisions of Part 1 of the Act on a selective basis. This would, in effect, transfer to the waste disposal authority the responsibility for the disposal of waste at a particular site. The waste disposal authority would need to consult with the water authority before setting conditions under which waste disposal would proceed and, if it decided not to implement the restrictions required by the water authority, then the matter could be referred to the appropriate Secretary of State for decision. It is anticipated, however, that any differences between a water authority and a mineral planning authority over conditions on a planning permission will be satisfactorily resolved by negotiation and that the Secretaries of State's powers under Section 18 of the 1974 Act will rarely be exercised.
170. MPG2: 109. Mineral working may lead to problems of water supply, pollution and land drainage. The use of water by an operator may diminish the flow of a river. The discharge of effluent, the removal of filtering strata and the contamination of surface or rainwater from contact with disturbed strata may lead to the pollution of rivers or underground supplies. The disturbance of land may interfere with the natural flow of springs. Drainage problems include the disposal of effluent and the disruption of field drainage systems. The deposit of waste on the washlands of a river may give rise to flooding and in certain circumstances excavation may interrupt drainage systems well beyond the limits of the worked area.
171. WBB's record of discharge through the controlled outlet SD8 is less than impressive; the Environment Agency's record show that the discharge consent for suspended solids has been exceeded regularly over a period of years. WBB's Environmental Statement (5.5.4) states that the catchment area for SD8 will increase from 14 hectares to 36 hectares (due to the increased size of Southacre Quarry) and that "Water pumped from the additional quarry area will discharge via the existing consented discharge point, and will therefore have to meet the same requirements for suspended solids and pH which already apply to that consent." As WBB regularly fails to meet the consent now, what guarantee is there that it will do so in future with a catchment area twice the size? The Environment Agency shows no readiness to prosecute discharges from Southacre that are illegal under the Water Resources Act 1991. WBB's Statement of Case says: "... the Company has met the requirements indicated thus far by the Environment Agency, with respect to land drainage issues..." But as far as the existing consent is concerned, this is simply untrue.
172. Another key question is whether the planned removal of Chudleigh Road and the joining of Southacre Quarry to White Pit has any form of modified discharge consent attached. If not, that additional catchment area will also be draining through discharge point SD8.
173. MPG2: 110. Where the statutory powers of control discussed below do not apply, or could not be applied effectively and, in the view of the mineral planning authority after consulting the water authority, permission for the mineral working ought not to be granted without special safeguards, it will be necessary to attach conditions to the permission indicating precisely the steps to be taken, or the activities to be prohibited, in order to safeguard water supplies. Conditions in general terms, such as those which specify that 'no interference with or pollution of local water supplies shall be permitted; would be difficult to enforce and should not be imposed.
174. As the Environment Agency seems unable or unwilling to implement its discharge consent on SD8 effectively, I suggest MPG2/110 could be used to strengthen WBB's commitment to safeguarding water quality by attaching a specific condition referring to discharges into the Teign.
175. MPG2: 111. There is a substantial body of legislation specifically concerned with water supply, drainage and pollution including the Water Resources Act 1963, the Water Acts of 1945, 1948 and 1973, Part II of the Control of Pollution Act 1974, the Salmon and Fresh 'Water Fisheries Act 1975 and the Land Drainage Act 1976 (and bye-laws made under this and earlier Drainage Acts) and the private acts of some county councils and water undertakings. The protection of water courses against pollution is the concern of the statutory water authorities set up under the Water Act 1973. A general supervision over land drainage is also exercised by the water authorities under the 1973 Act and the Land Drainage Act 1976 but the discharge of all drainage functions other than financial is delegated to their regional drainage committees, with differing but essentially similar arrangements in the London area.
176. MPG2: 112. Pollution of underground supplies may take place as a result of the removal of filtering strata. Where this is likely it may be necessary to attach a condition that a layer of filtering material of a given minimum thickness shall be left unworked. Also, there may be some possibility of pollution of local water supplies by seepage from wet pits, particularly if unsuitable material is used for filling, and it may be necessary to impose a condition requiring that only material acceptable to the water authority shall be used for filling. Where controlled waste (as defined in the Control of Pollution Act 1974) is to be the fill material, however, the waste disposal licence will make such provision as is necessary to protect water from pollution including, if necessary, the exclusion of certain types of waste. Water authorities are consulted on all proposals to issue waste disposal licences and may refer disagreements over proposed licence conditions to the Secretaries of State.
177. MPG2: 113. The risk of silting up drainage systems by solid matter in effluent from mineral workings may be covered by the powers available to the water authority and planning control should not normally be used. But where the discharge of large quantities of water is an essential part of the mineral operations, and serious silting might otherwise take place, it will be necessary, to the extent that other legislation does not cover the matter, to impose conditions requiring the water to be passed through settling tanks or silt beds.
178. MPG2: 114. The creation of spoil heaps or the deposit of overburden on the washlands of a river can in certain circumstances cause serious drainage problems by increasing both the incidence and the duration of flooding. In certain circumstances water authorities have power to control the deposit of mine or quarry waste near rivers.
179. RPG10 confirms this:
180. RPG10 4.33 Flood risk is an issue in many locations along the coast and inland. Such locations include estuaries, such as the Severn, Exe, and Tamar, low-lying areas adjacent to major rivers, and narrow upland valleys, such as those found on Exmoor and Dartmoor, where water levels can rise rapidly. Development plans should not provide for inappropriate development in areas which are at risk from flooding or where it could affect such processes.
181. I would argue that WBB's proposal is just such an inappropriate development, and the other evidence submitted by AQUA will support this.
Tips and tipping
182. MPG2: 93. Most mineral workings produce some waste and conditions controlling the way such waste is to be disposed should always be included in a planning permission. They should aim to prevent the disfigurement of the countryside, the sterilisation of unworked mineral deposits on agricultural land and any interference with other natural resources, such as water supplies and fisheries or important ecological habitats. Conditions can sometimes ensure that waste is turned to a positive use. In many quarries, for example, waste can eventually be disposed of in the quarry itself and can often be used to raise the floor of the quarry to make it more suitable for some form of after-use. It may also be possible to deposit the waste in nearby excavations or hollows or use it to raise the level of other nearby land, which may be useful for the prevention of flooding. The advice of the water authority must always be sought before drawing up appropriate planning conditions. Waste may be used as bulk-fill for roads. DOE Circular 20/87 (WO 36/87) advises that highway authorities, in consultation with the mineral and local planning authorities and waste producers, should identity at the earliest opportunity whether suitable waste material is likely to be available within a radius of about 10 miles of the prospective routes of the new road. In underground mines, waste can sometimes be stowed underground in worked-out galleries, but the difficult engineering problems involved may make this impracticable.
183. Other objectors at this inquiry will argue that the proposed tip will disfigure the countryside and that it may interfere with natural resources (the rivers, the high-quality agricultural land, the fisheries, and the habitats) and heritage resources (archaeological sites WBB proposes to bury under the tip, and the setting of important sites outside the application area, deemed by PPG16 to be a material consideration). This inquiry must also consider the land underneath the tip and whether the tip itself would sterilize mineral resources. If the ultimate intention is to remove the tip and use it to backfill a worked out quarry, we must also consider the additional disruption to local residents.
184. MPG2: 94. If none of these alternatives is feasible, the land to be used for tipping should be carefully chosen. For reasons of cost and practicability the site will usually have to be reasonably near the workings but considerations of amenity, the current and future use of the land, the land drainage and water supply systems of the area and the need to avoid sterilising mineral reserves by badly sited waste tips are all factors which should be taken fully into account when drawing up conditions stipulating where the waste should be tipped. Use of the evaluative framework for the assessment of alternative colliery spoil disposal options prior to the submission of a formal planning application can help identify realistic choices for tipping locations (see paragraph 47 of MPG 1 and DOE Circular 15187 (WO 20/87)).
185. It is not clear from WBB's Environmental Statement (5.4.1) that it has properly evaluated all the options for waste tipping and backfilling. According to WBB, its other quarries contain such substantial reserves that they must not be sterilized by tipping at this time; but if that is the case, just how much of a landbank does WBB currently hold? It seems appropriate to scrutinize WBB's policy of concurrently holding many separate quarries and tips, while continuing to open more quarries and tips, and while arguing that it cannot backfill without sterilizing minerals.
186. We should note in passing that MPG5/27-28 removed the existing rights to tip remote from a mine or quarry.
After-use and reclamation
187. MPG1: 5. The winning and working of minerals has a number of special characteristics:
(i) minerals can only be worked where they naturally occur - extraction sites are limited;
(ii) although working often takes place over a long period of time, it should not be regarded as a permanent land use;
(iii) working often has adverse effects, e.g., local disruption to the community. All costs and benefits need to be considered and adverse environmental impacts mitigated or controlled during the process of extraction; and,
(iv) when work stops at a site, the land requires treatment to make it suitable for beneficial after-use and to avoid dereliction.
188. MPG1: 71. Land taken for mineral extraction or the depositing of mineral wastes should not become derelict and should be reclaimed to a standard suitable for beneficial after-use as soon as possible. After-uses may include agriculture, forestry, nature conservation, public open space, recreation or other development.
189. MPG1: 75. MPAs should also pay particular attention to the need for and importance of the mineral, the potential for the reclamation of the deposits after reworking and the proposed arrangements (including transport to the processing plant and waste disposal), when formulating policies for these minerals. MLPs should include policies for encouraging recycling of waste material and construction waste, including use as aggregate material wherever possible. Plans should provide the future framework for identifying acceptable areas for future mineral waste disposal. They should also set out criteria which would be used in development control decisions on individual sites.
190. Although WBB specifies the after-use of its proposed Brocks Lane tip site, its Environmental Statement contains no specification of the after-use of the main quarry site. Indeed, on the accompanying Planning Application form, Mr John Briggs, WBB's Planning and Estates Manager, wrote: "No part of the proposed quarrying area will be exhausted within a 50 year timescale. It is therefore considered premature to decide on the afteruse at this time."  This suggests to me that WBB is regarding Southacre Quarry as a permanent land use.
191. MPG2 underlies the importance of early reclamation:
192. MPG2: 121. Among the most important conditions are those which seek to ensure that the land from which the minerals have been extracted is reclaimed at the earliest opportunity to facilitate a beneficial after-use of the site. The 1981 Act enables mineral planning authorities to impose an aftercare condition requiring that the restored land is planted, cultivated, fertilised, watered, drained or otherwise treated for a specified period so as to bring it to a required standard for agriculture, forestry or amenity use. Detailed advice on restoration and aftercare conditions will be given in the forthcoming MPG 'The Reclamation of Mineral Workings'. [emphasis added]
193. That MPG, MPG7, was properly in force at the time WBB submitted its application, and it states:
194. MPG7: 15. Irrespective of the time limit for a site, the applicant needs to demonstrate that the site can be reclaimed satisfactorily.
195. I suggest WBB's Planning Application form directly contradicts this and that WBB's failure to specify the after-use of the quarry site is a material consideration to which considerable weight should be attached.
196. In passing, I note that a new MPG7 was issued shortly after WBB submitted its application. This statement in paragraph 15 has been removed, but there are three new relevant paragraphs:
197.MPG7: 3. The overall standards of reclamation have continued to improve over recent years, and with the development and implementation of appropriate reclamation techniques, there is potential for land to be restored to a high standard suitable for a variety of uses. Consistent and diligent application of the appropriate techniques will ensure that a wide range of sites are restored to appropriate standards. This may lead to the release of some areas of land which would not otherwise be made available for mineral working, for example, the best and most versatile agricultural land. Conversely, where there is serious doubt whether satisfactory reclamation can be achieved at a particular site, then there must also be a doubt whether permission for mineral working should be given. [emphasis added]
198. MPG7: 27. To demonstrate that a site can be reclaimed to an acceptable standard and after-use, the applicant is advised to prepare, at the outset, a working plan which includes restoration proposals and is based upon findings from the site investigation. This should be in sufficient detail for the MPA and any statutory consultees to form a judgement as to its feasibility. For after-uses which involve some form of plant growth (e.g. for agriculture, forestry or amenity including some forms of nature conservation), the plan will usually involve a number of key stages...
199. MPG7: A4. A formal reclamation scheme should accompany the planning application for the mineral working. It should indicate how the restoration and aftercare of the site is to be integrated with the working scheme, and should demonstrate the suitability of the proposals for the proposed after-use. [emphasis added]
200. In other words, a formal reclamation plan is apparently now required by MPG7.
201. RPG10 confirms the importance of after-care and restoration:
202. RPG10 4.19: "Parts of the Region suffer from a poor environment because of dereliction, the effects of mineral workings or tipping. The extensive area of china clay workings in central Cornwall is a notable example of an area affected by such problems. Development plan policies should encourage the reclamation and re-use of derelict land, particularly where its re-use for employment, housing or leisure uses would reduce pressure on green-field sites, or where it will result in environmental enhancement in or near scenically important areas. In some parts of the Region, reclamation of dereliction from former mineral activities may provide both strategic and more local environmental and other benefits. Plans should include policies to improve the environment generally by setting a framework for developing, protecting and enhancing built-up areas and the countryside. The inner parts of some urban areas require active regeneration, but there are also problems to be addressed in coastal resorts and on the urban fringes.
203. RPG10: 3.4 ... there is a need to promote regeneration and enhancement of urban and rural areas which have been damaged by earlier economic activities or are suffering from current problems, such as congestion. Plans should pursue positive measures to restore and enhance degraded areas in order to improve the quality of the environment for residents and visitors, as well as enhancing the Region's economic attractiveness.
Bonds and financial considerations
204. The draft s106 conditions contain no guarantee that any part of the site will be reclaimed at any time in the future. This seems particularly important now that a Belgian company, SCR Sibelco SA, has been progressively increasing its holding in WBB to the point where it now owns 52.8% of the company. I suggest some form of financial bond, attached in the form of a condition, might be an appropriate way of securing a guarantee from WBB on this point.
205. After all, why should we accept the word of a company that agrees discharge consents on its quarries that it regularly and knowingly -- indeed illegally -- exceeds? A company that knowingly undermined legislation to protect the heritage of the area by bulldozing Twin Yeo farm? I think it will become apparent from the proofs of evidence and letters submitted by local residents that they do not trust WBB, and with good reason. I would argue that a strong, binding guarantee is required in this case.
206. What provision does Government policy make for this?
207. MPG2: 64. It is a general rule of law in connection with the grant of permissions or licences that no payment of money or other consideration be demanded from any person except on a clear and distinct authority laid down by statute. A condition requiring an applicant to pay or to deposit money as security for compliance with conditions is thus ultra vires. Moreover, a local planning authority may not seek extra-statutory rights and remedies by the expedient of requiring an operator to enter into an agreement to observe certain obligations as a condition of granting permission. However, voluntary agreements relating to the use of land may be made under the provisions of Section 52 of the 1971 Act, Section 111 of the Local Government Act 1972 or Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 (see DOE Circular 22/83 (WO 46/83)). Such agreements may be particularly relevant to certain mineral workings (see DOE Circular 25/85 (WO 60/85)). [emphasis added]
208. MPG2: 65. Section 52 of the 1971 Act provides that a local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land. It also provides that the agreement may be enforced by the local planning authority as if they possessed the adjacent land which benefited under the agreement. The authority are therefore in the same position, in relation to the agreement as a whole, as a person entitled to the benefit of a covenant. The enforcement of the agreement by the authority will accordingly be subject to the same limitations as the enforcement at common law of other covenants. It should be borne in mind that the covenants comprised in a Section 52 agreement run with the land and will therefore be enforceable against successors in title.
209. MPG2: 66. Under Section 111 of the Local Government Act 1972 a local authority may enter into agreements which facilitate or are conducive or incidental to the discharge of any of their functions. Thus the purpose of the agreement can be wider than the purpose of agreements under Section 52 of the 1971 Act which can only restrict or regulate the development or use of land. However, a Section 111 agreement is only enforceable against the persons with whom it is made. It is not enforceable against successors in title.
210. MPG2: 67. By arrangements prescribed in Section 33 of the Local Government (Miscellaneous Provisions) Act 1982, the enforcement of positive covenants in agreements made by a local authority under other powers (e.g. under Section 111) is secured against successors in title. The section also gives the local authority default powers to enter the land and do what the covenant requires. It relates only to agreements executed for the purpose of securing the carrying out of works on the land of facilitating the development of the land or of other land in which the party to the agreement has an interest.
211. MPG2: 68. There are also powers in some Local Acts enabling local authorities to obtain a bond in relation to coal mining operations but some of these are likely to have ceased to be effective at the end of 1986 by virtue of Section 262(9) of the Local Government Act 1972.
212. The s106 agreement between Devon County Council and WBB has not yet been made public in their full form, so it is impossible to comment in detail about specific conditions. MPG2 details possible conditions at length and I request that the inquiry tests the proposed s106 conditions very carefully against the recommendations set down in this important statement of Government policy. In addition, Government planning policy makes the following general points:
213. PPG1: 37. In exercising control over development, conditions can be imposed on planning permissions only where there is a clear land-use planning justification for doing so. Generally, conditions should be used in preference to planning obligations, and in a way which is clearly seen to be fair, reasonable and practicable. One key test of whether a particular condition is necessary is if planning permission would have to be refused if the condition were not imposed. Otherwise, such a condition would need special and precise justification. Further advice on the proper use of conditions and planning obligations is contained in DOE Circulars 11/95 and 1/97.
214. MPG1: 6. Because of the long term nature of most minerals developments, Mineral Planning Authorities (MPAs) have a duty to undertake periodic reviews of planning permissions to ensure that they are kept up to date. Operating conditions are imposed to control the environmental impacts of working and restoration and aftercare conditions are imposed to ensure that land worked for minerals is suitable for a beneficial after-use.
215. MPG2: 83. The environmental impact of increases in production, particularly on traffic flow, may be great and in some circumstances the imposition of a condition limiting output at individual sites may be appropriate. However, difficulties, particularly of enforcement, may arise from the imposition of limits, especially at larger sites, where production may be subject to market fluctuations and other variables. The matter can only be considered by the mineral planning authority in the circumstances of the particular case and in consultation with the operator.
216. Draft condition 1 (Implementation Time Limit) sets a limit of five years during which WBB must begin work on the development. I can find no time limit on the duration of the quarry working, but MPG2 says there must be such a condition.
217. MPG2: 75. The 1981 Act requires all planning permissions for mineral working to be subject to a time limit condition, requiring development to cease not later than the expiration of 60 years or such longer or shorter period as the mineral planning authority may specify. The period should be appropriate to the particular circumstances of the case and should take account of the legitimate needs of the operator as well as planning considerations. Permissions existing on 22 February 1982, which are not already time-limited, become time-expired on 22 February 2042. Where a permission for mineral working becomes time expired and workable deposits remain an application for its renewal should normally be granted unless there has been a material change of planning circumstances since the expiring permission was granted. Because of the long time scale of some mineral operations careful consideration should be given to the nature and long term relevance of the conditions to be attached.
218. MPG7: 14. All planning permissions for mineral working are now subject to a time limit condition and when setting conditions for reclamation it will be important to have regard to this. In some instances, such as where mineral extraction is to precede a planned development, the proposed after-use may be a relevant factor in determining the duration of the permission and vice versa.
I believe the balance of Government policy shows that this application is:
* Not economically justified in the way WBB claims -- indeed, that economic need and the "opportunity costs" of the scheme have not been established
* Inconsistent with sustainable development
* Premature in relation to the Devon Minerals Local Plan and the Bovey Basin Strategy
* Environmentally damaging in a way that is inconsistent with Government and Regional planning guidance
* Effectively a permanent land-use, with no specification of after-use.
I believe it must be turned down on these grounds.
Appendix 1: List of Planning Policy Instruments
Planning Policy Guidance Notes
PPG1 General Policy and Principles (Feb.'97)
PPG2 Green Belts (Jan. '95)
PPG3 Housing (Mar. '93)
PPG4 Industrial and Commercial Development and Small Firms (Nov. '92)
PPG5 Simplified Planning Zones (Nov. '92)
PPG6 Town Centres and Retail Developments (Jul. '93)
PPG7 The Countryside - Environmental Quality and Economic and Social Development
PPG8 Telecommunications (Dec. '92)
PPG9 Nature Conservation ('94)
PPG12 Development Plans and Regional Planning Guidance (Feb. '92)
PPG13 Transport (Mar. '94)
PPG14 Development on Unstable Land (Apr. '90)
PPG15 Planning and the Historic Environment (Sep. '94)
PPG16 Archaeology and Planning (Nov. '90)
PPG17 Sport and Recreation (Sep. '91)
PPG18 Enforcing Planning Control (Dec. '91)
PPG19 Outdoor Advertisement Control (Mar.92)
PPG20 Coastal Planning (Sep. '92)
PPG21 Tourism (Nov. '92)
PPG22 Renewable Energy (Feb. '93)
PPG23 Planning and Pollution Control (Jul.'94)
PPG24 Planning and Noise (Sep. '94)
Mineral Planning Guidance (MPG) Notes
MPG1 General Considerations and the Development Plan System (Jan. 88)
MPG2 Applications, Permissions and Conditions (Jan. '88)
MPG3 Coal Mining and Colliery Spoil Disposal (Jul. '94)
MPG4 The Review of Minerals Working Sites (Sep. '88)
MPG5 Minerals Planning and the General Development Order (Dec. '88)
MPG6 Guidelines for Aggregate Provisions in England (Apr. '94)
MPG7 The Reclamation of Minerals Workings (Nov. '96)
MPG8 Planning and Compensation Act 1991: Interim Development Order Permissions - Statutory Provisions and Procedures (Sep. '91)
MPG9 Planning and Compensation Act 1991: Interim Development Order Permissions Conditions (Apr. '94)
MPG10 Provision of Raw Material for the Cement Industry (Nov. '91)
MPG11 The Control of Noise at Surface Mineral Workings (1993)
MPG12 Treatment of Disused Mine Openings and Availability of Information on Mined Ground (Mar. '94)
MPG13 Guidelines for Peat Provision in England (Jul. '95)
MPG14 Environment Act 1995: Review of Mineral Planning Permissions
Regional Planning Guidance Notes
RPG10 Regional Planning Guidance for the South West, Government Office for the South West, 1994.
Appendix 2: References
1. "Decision on the Teigngrace ball-clay works extension is called in", DETR Press Release 399/ENV, 14/10/1997.
2. "Proposed extension to ball clay workings and associated river diversions: Environmental Statement", Watts Blake Bearne & co. plc, September 1996.
3. "The economic importance of ball clay", D.E. Highley, British Geological Survey Technical Report WF/95/11, 1995.
4. "The Templer Way", Tourist Information Leaflet produced by Teignbridge District Council.
5. "UK Minerals Yearbook 1996", British Geological Survey, January 1997.
6. "Proposed extension of ball clay working with associated river diversions and mineral waste tipping on land north of Ley Green, Ventiford, Teigngrace/Kingsteignton", Planning application to Devon County Council No: 96/3040/20/9, received 10/9/1996.
7. "Opencast coal: review of planning policy: consultation paper", DETR, July 1997.
8. "Mineral Extraction Great Britain 1995", CSO/ONS, HMSO, 1996.
9. "Foundations for the future: the economic assessment of Devon and Cornwall", 1994.
10. "Quality is the key to tourism boom", Western Morning News, 25 July 1997 (p10).
11. Minerals and Waste Local Plan (Deposit Draft), Dorset County Council, Dorchester, July 1994.
12. "China and earthenware", Keynote Market report, 1997.
13. "Bricks and tiles", Keynote Market report, 1996.
14. "Baths and sanitaryware", Keynote Market report, 1996.
15. "The South West: A region of the European Union", The Representation of the European Commission in the UK/South West Regional Planning Conference, 1996.
16. "The Mineral Resources of Britain: A study in Exploitation and Planning", John Blunden, Hutchinson, 1975.
17. WBB Public Inquiry Statement of Case, WBB/Herbert Smith, 20/11/97.
18. Letter to Industrial Minerals, July 1996, from Dr G. Lawson, Chief Executive, WBB.
19. Industrial Minerals March 1996, p39-40.
20. "European Sanitaryware", Industrial Minerals, February 1998, pp27-37.
21. WBB Devon Clays Factsheet: "The Proposed Extension to Ball Clay Workings and Associated River Diversions".
22. Information from equities section of http://www.hemscott.com.
23. "English Nature: A Muzzled Watchdog?", WWF UK, November 1997.
24. Draft s106 conditions agreed by WBB and Devon County Council.
25. British Standard 5228 (BS5228): "Noise control on construction and open sites", Part I, 1984.