THIS REPORT RELATES STIRLING COUNCIL TO ITEM 14 ON THE AGENDA
ENVIRONMENT & HOUSING ECONOMY, PLANNING & REGULATION
19 SEPTEMBER 2013 NOT EXEMPT
MURRAYSHALL QUARRY, GILLIES HILL, CAMBUSBARRON
1 SUMMARY
1.1 This report provides an update on the actions taken following the Council’s decision of 1 March 2012 and subsequent resolution of 11 October 2012 to make a Suspension Order for the purpose of the protection of the environment at Murrayshall Quarry.
1.2 The report also provides an update on engagement with the Quarry Operator and Landowner over the submission of a full and comprehensive Environmental Impact Assessment (EIA) as per the motion agreed at the Council meeting of 27 June 2013 and furthermore, provides a full and comprehensive options appraisal of the actions available to the Council including, but not limited to, the reconsideration of extraction rights, revocation of permission and/or land purchase by the Council also as per the motion agreed by Council on the 27 June 2013.
2 OFFICER RECOMMENDATION
That the Committee:-
2.1 Instructs officers to continue to engage with the Quarry Operator and landowners with a view to securing a full Environmental Impact Assessment in association with a Review of Old Mineral Permission (ROMP) application for the whole Quarry site, prior to any re-activation of the Quarry;
2.2 In the event that a Review of Old Mineral Permission / Environmental Impact Assessment application is not submitted and it is evident that the Quarry Operator intends to recommence extraction at the Quarry in advance of the 2017 Review date, to instruct officers to prepare a further Report to Council outlining the steps necessary to suspend the ability of the Operator from extracting minerals from the site.
3 CONSIDERATIONS
Background
Grant of Planning Permission – 1982:
3.1 Planning permission for Murrayshall Quarry was granted by Stirling District Council in 1982. The period of the consent extends to 2042, in accordance with the provisions of the Town and Country Planning (Scotland) Act 1997.
3.2 Quarrying at Murrayshall ceased in 1996 and no quarrying operations have resumed since. Two companies; Tarmac, who undertook extraction until 1996, and latterly Hanson, now Patersons of Greenoakhill, who recently took up the lease to work the remaining areas, have planning permission to extract material from Murrayshall Quarry. While Tarmac (now LaFarge Tarmac) owns their portion of the Quarry, Patersons lease their portion from the landowners, Drygrange Estates.
Review of Old Mineral Permission – 2002:
3.3 In 2002, as required by the Environment Act 1995, Stirling Council carried out a Review of Old Mineral Permissions for the Quarry and issued a new set of conditions. A further review of the conditions is due in 2017.
Intent to Resume Quarrying – 2006:
3.4 In late 2006, Hanson indicated that they intended re-commencing operations at Murrayshall Quarry and requested the Council’s opinion on using the existing forestry road (between the Quarry and Polmaise Road) to extract material. The Council advised that this would require a new planning application to vary the conditions. No application has been received to date.
3.5 The local community, aware of proposals by Hanson to re-activate Murrayshall, raised the issue that an Environmental Impact Assessment should have been carried out at the time of the review of the conditions in 2002.
3.6 In January 2008, following legal advice, the Council accepted that an Environmental Impact Assessment, as required by European Directive, should have been, but was not, carried out as part of the 2002 review process. The Council agreed to explore a voluntary approach with the operators of the quarry to seek a court action to set aside the 2002 review and provide an extension to the time limit for an Environmental Impact Assessment to be undertaken.
3.7 Tarmac advised that they had no intention of undertaking any extraction at the Quarry before 2017 and therefore saw no need to incur costs at this stage. Hanson and Drygrange Estates indicated that they had no immediate plans to recommence operations. Both operators of the quarry and the land owners confirmed that they were not willing to join the Council in a voluntary action to the Court of Session to have the 2002 review set aside. The Council was unable to take this action without their support.
Petition submitted to Stirling Council – 2010:
3.8 Cambusbarron Community Council submitted a petition calling on the Council to offer support to the Community Council to take direct action through the courts, if necessary, to have the 2002 review set aside. The Petitions Panel on 14 June 2010 agreed to refer the matter for consideration by Council.
3.9 The Council, in 24 June 2010, recognised the concerns of the local community and agreed to work with Cambusbarron Community Council to secure a binding written commitment from the owners and operators of Murrayshall Quarry that they would not exercise their quarrying consents before the next scheduled review of conditions in 2017, at which time an Environmental Impact Assessment could be undertaken and the conditions amended as necessary.
3.10 The Council also agreed that if such binding commitments were not received, it would work with and support Cambusbarron Community Council in identifying and pursuing such appropriate legal action as was necessary to prevent quarrying taking place before the 2017 review.
3.11 In respect of paragraph 3.9, Tarmac advised that they were "prepared to enter into an agreement not to undertake quarry operations pending the periodic review of the consent in 2017". Drygrange Estates and Hanson advised that neither party separately could agree to a binding commitment as this would prejudice their lease agreement with the other party. Given this stated position of both parties, the Council requested that both Hanson and Drygrange Estates seek mutual agreement of both parties that quarrying will not resume until after the 2017 review. Neither Drygrange Estates nor Hanson responded to the Council in this respect at that time.
Council Decision – March 2011:
3.12 In March 2011 it was reported to Council that an Environmental Impact Assessment would require to be undertaken for the next review of the permission which would take place in 2017. As it did not appear possible to secure the voluntary agreement of all parties that quarrying would not resume before the next scheduled review, the Council had sought the opinion of Senior Counsel on the available and appropriate legal action with regard to supporting the Community Council in seeking to challenge the 2002 review. (Counsel’s opinion had previously been obtained in 2007 but it was thought appropriate to seek further advice in view of the passage of time and some further questions which had arisen).
3.13 Senior Counsel advised that the opportunity to challenge the 2002 Review of Old Mineral Permission had passed and that the Council should deal with the situation as if there was a valid and extant planning consent. The Council agreed that it would be beneficial to obtain a non-statutory Environmental Appraisal for Murrayshall Quarry, to establish whether any environmental conditions should have been imposed in 2002. If so, it would form the basis for further negotiations with the owner and operators of the Quarry on appropriate operating conditions. The Environmental Appraisal would also inform the Council as to whether there was any need for a Suspension Order to protect the environment pending resumption of quarrying whenever that may take place.
3.14 It should be noted here that Cambusbarron Community Council strongly challenged the opinion of Senior Counsel that the opportunity to challenge the 2002 Review of Old Mineral Permission had passed, based, amongst other points, on Article 9 of the Aarhus Convention relating to access to justice on environmental matters and their own legal advice which considered that a challenge was still feasible.
3.15 The Council also agreed at that time to provide funding of £5000 to support the Community Council in initiating legal action, but this could not be pursued without further financial support from the Council.
Implementation of Council Decision:
3.16 Environmental consultants, Ironside Farrar, were commissioned by the Council to undertake and report on a non-statutory Environmental Appraisal for Murrayshall Quarry and to review the existing planning conditions that related to the site. The Environmental Appraisal was conducted between October 2011 and January 2012. Ironside Farrar reviewed the current 28 planning conditions relating to Murrayshall Quarry against best practice and environmental baseline and although these were not informed by an Environmental Impact Assessment, they concluded that they were sufficient to allow the planning authority to exercise control over quarry operations.
3.17 Cambusbarron Community Council did not accept the main conclusions of the Ironside Farrar Report that the Planning conditions provided sufficient control and also considered that the Report did not comply with the primary intention of the brief which was to establish whether significant environmental issues existed which would warrant the use of a Suspension Order.
Council Decision - March 2012:
3.18 The results of the Environmental Impact Appraisal were reported to Council on 1 March 2012 and the Council then agreed:-
3.18.1 to instruct officers to require the quarry operators to produce an Environmental Impact Assessment for Murrayshall Quarry;
3.18.2 to instruct officers to require the quarry operators to produce an updated Quarry Restoration Plan ;
3.18.3 to instruct officers to require the quarry operators to undertake all fencing at Murrayshall Quarry in accordance with planning requirements;
3.18.4 to instruct officers to establish a Quarry Liaison Group with representation from land owners, quarry operators, Cambusbarron Community Council and Stirling Council;
3.18.5 to a statutory motion being presented to the first Council meeting after 1 September 2012 for a Suspension Order in respect of the working of minerals at Murrayshall Quarry in the event that the land owners and quarry operators failed to comply with the above decisions.
Implementation of Council Decision:
3.19 Following the above decision, officers engaged with the landowner and Tarmac to obtain their agreement to undertake these actions. With the exception of the fencing work, which was undertaken, the other actions could not be complied with by the landowner as the lease with the operator at that time, Hanson, had been terminated and they did not therefore have the ability to comply.
3.20 At the meeting of 21 October 2012, the Council approved the making of a Suspension Order in line with the above decision.
Council Decision - June 2013:
3.21 Council considered the matter most recently at its meeting on 27 June 2013 when it resolved “to instruct officers to engage with Paterson’s Drygrange Estates in obtaining a legally binding commitment that a full and comprehensive Environmental Impact Assessment (E.I.A.) over the whole quarry site is obtained before any proposal to reactivate quarrying at Gillies Hill” and called on officers “to bring a report to October Council outlining a full and comprehensive options appraisal in the furtherance of the above including but not limited to the reconsideration of extraction rights, revocation of permission and/or land purchase by the Council”.
Current Position
3.22 The Suspension Order was submitted to Scottish Ministers and served on the owners and operators with an interest in Murrayshall Quarry in March 2013. Solicitors acting for both the landowners and the current operators, have submitted representations to Scottish Ministers, objecting to the order and requiring to be heard by Scottish Ministers before a decision is taken. The Order remains under consideration by Scottish Ministers.
3.23 After careful examination of the legislation and taking legal advice, Cambusbarron Community Council is of the view that the use of a Suspension Order was the wrong legal instrument for this situation. They have continued to lobby strongly that the Order should be withdrawn as its continued consideration by Scottish Ministers could be counter productive.
3.24 The quarry operators have stated in writing that they wish to undertake the Review of Old Mineral Permission process in advance of the 2017 review period, undertake an Environmental Impact Assessment now and submit updated Planning Conditions and a revised/updated Restoration Plan. Whilst it has not been possible to obtain a legally binding commitment, they have confirmed that this will be a full Environmental Impact Assessment, in compliance with Schedule 4 of the Environmental Impact Assessment Regulations and that consequently, the Review of Old Mineral Permission application will be treated as an Environmental Impact Assessment application which will be subject to the usual consultation requirements associated with this type of application.
3.25 The quarry operators believe that their proposals address the Council’s concerns as noted in the decision of March 2012 which required these matters to be addressed. It is understood that work has already started on the Environmental Impact Assessment and archaeological assessment work is also underway. The operators have advised that the submission of an Environmental Impact Assessment / Review of Old Mineral Permission application is a condition of their lease agreement with the landowner.
3.26 In instances where there are two operators on a quarry, any review of conditions must cover the whole consented site. The Circular relating to minerals permissions advises that it is open to any person who is an owner or tenant of any part of a site to make an application for review of conditions. The Circular advises applicants to co-ordinate their approach with other eligible persons with a view to submitting a single application covering all their respective interests. Where a planning authority have determined an application, then no further applications may be made by any other person.
3.27 It is understood that the landowners may be discussing terms for the acquisition of LaFarge Tarmac’s landholding. This would obviously simplify matters in terms of submitting updated conditions, restoration plan etc and would also mean that there would be no requirement to seek an alternative access for mineral extraction.
3.28 Should the land remain in the ownership of two parties, there is some doubt about the ability of the Council to approve revised planning conditions covering the whole site, when the applicant only has control over a certain portion of the site. This would be particularly relevant in relation to conditions concerning the restoration and after care of the whole site. In such circumstances, such conditions could be deemed to be unenforceable as the applicant would have no control over these aspects. Clarification has been sought from the operators on this issue and they have replied by stating that they are confident that the land ownership issue will be resolved and that accordingly, planning conditions can be legally imposed.
3.29 The operators were also asked to confirm whether they would be willing to enter into a binding legal agreement to withhold submission of a Review of Old Mineral Permission / Environmental Impact Assessment application in the event that land ownership remains unresolved. They declined stating that they were confident the ownership issues would be satisfactorily resolved prior to the submission of the application.
3.30 Cambusbarron Community Council are of the view that, as LaFarge Tarmac are a competitor to Paterson’s, the Quarry Operator, then the Council should not assume that agreement will necessarily be forthcoming when deciding on any future actions.
Implications of Non Submission of Review of Old Mineral Permission / Environmental Impact Assessment Application or Acquisition of Land
3.31 In the event that the quarry operators decide against submitting an Environmental Impact Assessment / Review of Old Mineral Permission application at this point, the default period of 2017 remains for submission. If they were intent on recommencing extraction without an Environmental Impact Assessment / Review of Old Mineral Permission application prior to 2017, which would conflict with their lease agreement with the landowner, then agreement with LaFarge Tarmac would be necessary to enable the transportation of extracted material from the quarry. If this agreement were forthcoming, then it is considered that they would be able to exercise their rights under the original consent/2002 Review of Old Mineral Permission to extract minerals, subject to appropriate licences/consents being obtained from the likes of SEPA, SNH etc. 3.32 Alternatively, if this agreement was not forthcoming, the quarry operators would have to submit an application for planning permission to open up a new access road to facilitate the removal of extracted material.
3.33 If the landowners were unable to acquire the land in LaFarge Tarmac’s ownership or reach agreement with them regarding the submission of an early Review of Old Mineral Permission / Environmental Impact Assessment application covering the whole site, then, as outlined in para 3.21, the quarry operators/landowners can still submit a Review of Old Mineral Permission / Environmental Impact Assessment application covering the whole site. The implications of this approach are outlined at para. 3.23.
3.34 In the event that the Council considered that the proposed Conditions were un- enforceable and therefore could not be approved, the applicant would have the right to Appeal to Scottish Ministers.
Possible Options under Planning Legislation
3.35 The only options available are those provided by statute. The Town and Country Planning (Scotland) Act 1997 provides a range of controls to address issues with planning consents. These are detailed in the following paragraphs 3.36 – 3.48. The general principle underlying these options is that such controls can only be exercised on payment of compensation.
3.36 Guiding principles on the use of Orders are that they should be considered to be the option of last resort where discussions between the planning authority and the applicant/landowner have been unable to resolve the problem. Furthermore, in minerals cases, their use should not be a substitute for periodic reviews or enforcement action.
3.37 Discontinuance of use under Section 71 and Schedule 8 para 1 of the said Act: This power is used in circumstances where a planning authority wishes to modify or prohibit some authorised use of land. The grounds for discontinuance are that such is expedient in the interest of the proper planning of the area (including the interests of amenity), regard being had to the development plan and to any material consideration.
3.38 A Discontinuance Order can be used in exceptional situations where a material change in circumstances make it unacceptable for the development to continue on the existing terms and conditions of the Planning permission. This Order is most commonly used where no permission exists, or where development has begun in breach of planning control but enforcement action is not appropriate.
3.39 Amongst other things, a Discontinuance Order can stop the use of land for minerals development and/or, impose additional conditions on it’s continuing use. The Order has to be confirmed by Scottish Ministers, and can result in a claim for compensation or the service of a purchase notice if the land affected is rendered incapable of beneficial use.
3.40 Cambusbarron Community Council considers that a Discontinuance Order could be justified as, due to the absence of a completed new Review of Old Mineral Permission process, the 2002 Review of Old Mineral Permission is the valid permission for the Murrayshall Quarry and quarrying could recommence at any time under this permission. The 2002 Review of Old Mineral Permission’s lack of consideration of environmental issues poses a fundamental risk to the area should quarrying recommence.
3.41 Revocation or Modification under Section 65 and Schedule 3 part 2 of the said Act: These powers can be used in circumstances where the planning authority has a change of mind in relation to a consent it has granted but which has not been fully implemented. It should be noted, however, that a Revocation Order should only be used where evidence exists that the original decision to grant consent was grossly wrong and should refer to issues that have come to light since the original decision was made, such that it is right and proper that the decision should be reconsidered.
3.42 Examples of where a Revocation Order could be used are in instances where a site has protected wildlife that was not taken into account in the original decision or where the Council was misled by a material fact, which had they known of its existence, would not have led them to grant Permission.
3.43 The planning authority has power to revoke or modify any grant of planning permission to such extent as it considers expedient at any time before completion of the operations permitted. A revocation/modification order has to be confirmed by Scottish Ministers, and can result in a claim for compensation or the service of a purchase notice if the land affected is rendered incapable of beneficial use.
3.44 Examples of the use of the powers described in paragraphs 3.37 and 3.41 are comparatively rare as each of these carries with it liability to pay compensation as a result. A decision of the Supreme Court in 2012 confirmed that liability to pay compensation is a material consideration which a planning authority is entitled to take into account in considering action under these provisions.
3.45 Prohibition order under Schedule 8 Paragraph 3 of the said Act: This is a measure designed to recognise the problems which can arise because of the intermittent and protracted nature of mineral operations. If no operations have been carried out for a period of at least two years, and it appears that the resumption of operations is unlikely, the planning authority may by order prohibit the resumption of development and require steps to be taken to tidy up the site. This option is not available in light of the stated intention of the operators to resume operations at some time.
3.46 Suspension order under Schedule 8 Paragraph 5 of the said Act: This type of order also only relates to minerals permissions. Its object is to safeguard the environment during periods when development is not taking place. It is competent to make such an order where no development has been carried out for at least 12 months but it appears that resumption is likely. The order has to specify the steps which the authority requires to be taken for the protection of the environment and it requires to be confirmed by Scottish Ministers and registered in the Land Register of Scotland or Register of Sasines. When the developer or operator wants to resume operations, they have to give notice to the planning authority. As noted above, a suspension order made the Council is under consideration by Scottish Ministers.
3.47 Compulsory Purchase is authorised by the said Act in respect of land which is suitable for and is required in order to secure the carrying out of development, redevelopment or improvement; or is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated. Compulsory Purchase powers are not usually used to prevent or restrict an activity from happening.
3.48 A compulsory purchase order has to be confirmed by Scottish Ministers and compensation is payable. The procedures are complex and lengthy and it is unlikely that the Council could establish sufficient reasons for compulsory acquisition.
3.49 In addition to Compulsory Purchase, an alternative approach may be for the Council to suggest a voluntary acquisition of the land for a nominal sum. This would, however, bring with it costs for the restoration and aftercare of the site as required by the planning permission.
3.50 Cambusbarron Community Council considers that the Council should further explore an option to seek a voluntary agreement between the parties to formally set aside the 2002 Review of Old Mineral Permission given that LaFarge Tarmac have previously indicated that they do not intend to reactivate the Quarry and the current Quarry Operator’s stated intention of submitting an early Review of Old Mineral Permission / Environmental Impact Assessment application.
3.51 No provision for the costs of any of the foregoing options has been made in the Council’s revenue or capital budgets.
Conclusions
3.52 The Quarry operator has committed to submit a revised Review of Old Mineral Permission with a full Environmental Impact Assessment and also to submit a revised restoration plan for the whole site. Although it is has not been possible for this to be legally binding, this is a condition of their lease agreement with the landowner. Furthermore, a Review of Old Mineral Permission application could only be accepted with a full Environmental Impact Assessment.
3.53 Whilst uncertainty exits around the process and in particular, the ability of the quarry operator/landowner to either acquire LaFarge Tarmac’s land or obtain their agreement to the Review of Old Mineral Permission process, it is considered that the Council should await the outcome of these discussions and whether the Quarry Operators submit a Review of Old Mineral Permission / Environmental Impact Assessment application or not before considering further whether legal options, such as a Discontinuance Order should be pursued.
3.54 Failure on the part of the Quarry Operator to submit a Review of Old Mineral Permission / Environmental Impact Assessment application whilst at the same time, seeking to re-commence mineral extraction at Murrayshall may provide sufficient evidence of a change in circumstances or threat to amenity that could justify the serving of a Discontinuance Order.
3.55 Equally, evidence from an Environmental Impact Assessment submission may also provide sufficient justification that there is a threat to wildlife and amenity such that it could restrict the area for quarrying. In such circumstances, it should be noted that provisions requiring payment of compensation would apply.
4 POLICY/RESOURCE IMPLICATIONS AND CONSULTATIONS
Policy Implications
Equality Impact Assessment No Strategic Environmental Assessment No Single Outcome Agreement Yes Diversity (age, disability, gender, race, religion, sexual orientation) No Sustainability (community, economic, environmental) Yes Effect on Council’s green house gas emissions No effect
Corporate/Service Plan No Existing Policy or Strategy Yes Risk Yes Resource Implications Financial No People No Land and Property or IT Systems No Consultations Internal or External Consultations Yes
Equality Impact Assessment
4.1 An Equality Impact Assessment seeks to promote equality between different groups of people (people of different races, men and women, people with a disability, etc) and differing issues such as religion/belief, age and sexual orientation. An Equality Impact Assessment demonstrates that equality has been addressed in policy-making and review. Since this report does not relate to a new policy or revising an existing policy, it is considered that it will have a neutral impact on equality.
Strategic Environmental Assessment
4.2 The matters presented in this report were considered under the Environmental Assessment (Scotland) Act 2005 and a Strategic Environmental Assessment is not required.
Single Outcome Agreement
4.3 The recommendations support Single Outcome Agreement Outcome 3 – Communities are well served, better connected and safe.
Other Policy Implications
4.4 Strategic Plan: The recommendations accord with the strategic objectives of the Council’s Strategic Plan – Shaping Stirling 2014, in terms of maintaining the natural environment.
4.5 Local Plan: Environmental and planning legislation in respect of mineral operations defines the requirements under which quarries are assessed and granted consent. The current consents for Murrayshall Quarry comply with the Council's Local Plan.
Risk
4.6 No provision for the costs of any of the foregoing options has been made in the Council’s revenue or capital budgets. The Council could be liable for substantial costs for compensation should certain of the legal avenues outlined above be pursued.
Consultations
4.7 Consultations have been undertaken with the following:-
• Cambusbarron Community Council. • Local Elected Members. • Council Services – Economy, Planning & Regulation (Planning) and Governance & Resources (Legal). • Quarry Operators – Tarmac and Patersons. • Landowner – Drygrange Estates.
Tick ( ) to confirm
The appropriate Convener, Vice Convener, Portfolio Holder and Deputy DG Portfolio Holder have been consulted on this report NB
The Chief Executive/Depute Chief Executive/appropriate Assistant BJ Chief Executive(s) has been consulted on this report
5 BACKGROUND PAPERS
5.1 Murrayshall Quarry, Cambusbarron : Non-Statutory Environmental Appraisal, by Ironside Farrar Environmental Consultants – dated January 2012.
5.2 Motion to Stirling Council 11 October 2012 – Murrayshall Quarry, Suspension Order.
5.3 Report to Stirling Council 1 March 2012 – Murrayshall Quarry, Gillieshill, Cambusbarron.
5.4 Report to Stirling Council dated 17 March 2011 – Murrayshall Quarry, Gillies Hill, Cambusbarron.
5.5 Report to Stirling Council dated 24 June 2010 – Murrayshall Quarry, Gillies Hill, Cambusbarron.
5.6 Report to Petitions Panel dated 14 June 2010 – Murrayshall Quarry Review.
5.7 Report to Stirling Council dated 24 January 2008 – Review of Old Mineral Consent for Murrayshall Quarry. Gillies Hill, Cambusbarron – Reference S/80/116.
5.8 Planning Application Files relating to Murrayshall Quarry - S/80/116.
6 APPENDICES
6.1 None.
Author: Name Designation Telephone Number/E-mail
Liz Duncan Chief Governance Officer 01786 233108
Peter Morgan Chief Planning Officer 01786 233682
Approved by: Name Designation Signature
Kevin Robertson Head of Economy, Planning & Regulation
Date: 10 September 2013 Service EPRREP0062EHC(PM) Reference: