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9 Earth Holme Plantation Bevercotes

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9 Earth Holme Plantation Bevercotes report meeting PLANNING AND LICENSING COMMITTEE date 11 January 2011 agenda item number 9 REPORT ON THE APPEAL AND SUBSEQUENT PUBLIC INQUIRY INTO THE REFUSAL OF PLANNING PERMISSION BY BASSETLAW DISTRICT COUNCIL FOR AN EQUESTRIAN CENTRE AND ANGLING LAKES AT LAND ADJOINING EARTH HOLME PLANTATION, BEVERCOTES, NOTTS Purpose of the Report 1. To inform Members on the current situation regarding a forthcoming Public Inquiry to be held into the refusal of planning permission by Bassetlaw District Council (BDC) for a proposed equestrian and angling facility which involves the excavation of material to create six fishing lakes on land near Bevercotes. The recommendation is to seek Members’ support for the County Council, as Mineral Planning Authority, to continue its participation in the case. Planning History 2. In January 2007 BDC received a planning application, reference no: 1/7/00001, for the development of an angling and equestrian centre which included the creation of five commercial fishing lakes and the erection of barn/training centre, ménage, accommodation/office and stables on land adjoining Earth Holme Plantation at Bevercotes, Nottinghamshire (see attached plan). 3. The application came to the attention of the Nottinghamshire County Council (NCC) in April 2007 just after a similar case for large scale mineral extraction involving fishing lakes arose at Torworth, near Retford. 4. Members will recall that NCC took enforcement action in 2007 following the grant of permission in 2006 by BDC for the use of land as lakes for breeding fish and fishing on land at Torworth Grange Farm, Great North Road, Torworth. NCC served stop and enforcement notices in respect of mining operations at the site. The Inspector dismissed the appeals and upheld the enforcement notice. That position was challenged in the High Court by the appellant in that case in July 2010. The judge confirmed that the extraction of sand and gravel as proposed 1 was not ancillary to the change of use of land to fishing lakes, and that BDC’s planning permission did not permit mining operations. He therefore held that the Planning Inspector’s interpretation of the BDC permission was correct in law and that the decision should stand. 5. The application at Bevercotes proposed the development of an equestrian centre, a managers house and the creation of five large lakes, with internal access roads and associated car parking for 150 fishing ‘pegs’, on 44.3 ha of land in agricultural use located between the village of Bevercotes and the River Maun and Bevercotes Beck. 6. When the application was brought to the attention of your officers, it was noted that the size of the five lakes could involve the substantial excavation of material – possibly up to 350,000 tonnes – from land not allocated for mineral extraction in the Minerals Local Plan (MLP). The question therefore arose as to whether an application needed to be submitted to NCC as the Mineral Planning Authority (MPA). 7. There appeared to be similarities between the Torworth and Bevercotes’ proposals. Accordingly, NCC wrote to BDC regarding both applications - in the latter case to flag up the issue of potential mineral extraction and the need to understand the full details of the scheme. NCC requested a formal consultation, as the MPA, and subsequently requested that BDC deferred determining the application until the issues raised by NCC had been investigated and resolved. 8. Prior to determination of the application by BDC the scheme had been amended to six lakes. NCC Highways were not re-consulted in respect of the revised scheme, and it is not clear who had been re-consulted and whether the revised scheme was duly advertised. 9. Notwithstanding NCC’s submissions, BDC officers concluded the application was a District Matter and recommended approval to BDC’s Planning Committee. BDC’s Committee members were informed in the Committee Report that the scheme was for six lakes and that a figure of around 195,000 tonnes of excavated granular material would be removed from site. Members were informed that “the Nottinghamshire Minerals Local plan in the supporting text to Policy 14.1 states that recovering minerals as an incidental element of another development proposal promotes sustainable development. The text goes on to recognise that applications for development such as lakes which involve the excavation of significant quantities of minerals will be made to District Planning Authorities. However as the legal advice is that the application does not constitute “proposals for mineral extraction” nor is it one where “mineral extraction is a significant reason for justifying or promoting the development”, the text of the Minerals Local Plan is such that there is a reasonable argument that the application does not need to be assessed against the policies of the Minerals Local Plan”. 2 10. There were a number of objections from consultees and the public. The application was refused by the BDC Planning Committee on 17 October 2007, contrary to its officer’s recommendation. 11. The Applicant appealed against the refusal of planning permission and separately submitted a second revised application for the 6 lake development to BDC (app ref 7/08/0001R). BDC have declined to deal with the second application on the basis that the proposed development is a County Matter and that NCC should deal with it. The decision on the future of this second application now rests with the current appeal case on the 7/07/0001 application. 12. NCC continued to be involved in this case as officers considered that the refused application involved mineral extraction of considerable volumes, the proposal comprised mining operations that ought to be determined by the MPA, it was not in accordance with minerals planning policy and that this activity was not ancillary to the development of fishing lakes. Furthermore the application had not been screened under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regulations). 13. On 11 January 2008 a screening direction was issued by the Secretary of State that the development (namely the proposed angling and equestrian centre) was not EIA development. Subsequently in January 2009, the Secretary of State notified the Appellant that the development fell within the description at paragraph 2(a) of Schedule 2 of the EIA Regulations owing to the proposal to extract materials to construct the proposed ponds. The appellant was requested to submit an Environmental Statement (ES) to PINS on the basis of a scoping opinion issued by the Inspectorate on 6 April 2009. 14. The appellant submitted an ES in April 2010 and a supplementary ES in October 2010 following a regulation 19 request for further information. In this ES an alternative scheme (known as Masterplan Revision H) has also been submitted that incorporates additional development details. Current Position 15. The Parties (NCC, BDC and the appellant) have been requested by PINS to submit revised Statements of Case. The contents of the original statements have been superseded by events and changes in planning policy relevant to the current situation. A Public Inquiry is likely to be scheduled in March 2011. 16. NCC continues to be involved as a third party for the reasons stated above, namely that the proposal involves mining operations, it is not ancillary to the development of the fishing lakes, and is likely to be considered contrary to MLP policy. Notwithstanding the ES, officers 3 consider that the environmental impacts of the scheme have still not been properly examined against appropriate policies, and proper procedures may not have been followed. The submission of an alternative scheme at the appeal stage is also opposed. 17. Your officers are also concerned that such applications, as at Torworth, potentially involving extraction of substantial amounts of minerals under the guise of other forms of development, flout approved minerals planning policy, and may also have impacts in respect of bona fide mineral operators, NCC land bank reserves, minerals policy and the community which looks to the planning system for proper and sound planning decisions based on a full examination of all the relevant matters. Statutory and Policy Implications 18. This report has been compiled after consideration of implications in respect of finance, equal opportunities, personnel, Crime and Disorder and users. Where such implications are material, they have been brought out in the text of the report. However attention is drawn to the following: Equal Opportunities Implications 19. Development Control activity takes into account equal opportunity issues. Crime and Disorder Implications 20. Development Control activity takes into account issues relating to crime and disorder. Human Rights Act Implications 21 NCC officers consider there may be potential interference with the Appellants’ human rights to respect for their private life as set out in Article 8 (Schedule 1 Human Rights Act) and in respect of the right to peaceful enjoyment of possessions as set out in Article 1 of the First Protocol (Schedule 1 Human Rights Act). Article 8 rights my be interfered with by a public authority in accordance with the law and such as is necessary in a democratic society for the protection of the rights and freedoms of others. Under Article 1 of the First Protocol the right to peaceful enjoyment of possessions does not impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. Officers consider that the development involves extraction of large amounts of material and has not been assessed in accordance with the Minerals Local 4 Plan. Compliance with the approved Development Plan is necessary to protect the environment and the rights and freedoms of others and to control the use of property in accordance with the general interest.
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