Contact Officer: John Duncalfe Tel: 01865 815356 Date: 24 June 2008 Email: john.duncalfe@oxfordshire.gov.uk
ITEM PN8
PLANNING & REGULATION COMMITTEE –21 JULY 2008
APPLICATION TO CONTINUE THE DEVELOPMENT OF FINMERE QUARRY LANDFILL SITE WITHOUT COMPLYING WITH CONDITION 7 OF PLANNING PERMISSION NO. 00/01480/CM (SO AS TO SUBSTITUTE OR IMPOSE A NEW SCHEME OF WORKING CELLS, NEW DIRECTIONS OF WORKING AND TO PERMIT THE FILLING OF CELLS BEFORE PREVIOUS CELLS HAVE BEEN RESTORED).
APPLICATION ref: 07/00650/CM
Report by the Head of Sustainable Development
Location: Finmere Quarry, Finmere
Applicant: Premier Aggregates Ltd.
Application No: 07/00650/CM District Council Area: Cherwell
Introduction
1. This application has been submitted to enable the applicant to comply with an Enforcement Notice served by Oxfordshire County Council on 23 December 2005 relating to the over-tipping of Finmere Quarry Landfill Site.
2. The applicant appealed against the Enforcement Notice but the notice was upheld by the appeal decision dated 16 January 2007 (appeal ref: APP/U3100/C/06/2008163). The appeal Inspector concluded that the applicant must excavate and relocate all the over-tipped waste and relocate it to areas of the site where restoration contours have not yet been achieved.
3. It was common ground between the parties (Oxfordshire County Council and Premier Aggregates Ltd) that condition 7 of planning permission 00/01480/CM, which relates to the phasing of the site, would need to be amended in the event that the Enforcement Notice was upheld.
4. Condition 7 of the current planning permission for landfilling at this site (00/01480/CM) states that “no deposit of waste shall take place in any phase until restoration is complete on the previous phase but one.” In order to relocate the over-tipped waste the applicant would have to deposit waste in phases before restoration has been completed in previous cells.
5. This application, therefore, proposes to revise the phasing of the permitted landfilling operation to enable the over-tipped waste to be redeposited.
6. The impact of the redistribution of over-tipped waste on the landscape was discussed at the enforcement appeal. This report will, therefore, only consider the effects of the rephasing and the potential environmental impacts resulting from this development.
7. Since the upholding of the Enforcement Notice the Environment Agency have carried out landfill gas sampling. The results have been scrutinised by the Health Protection Agency who have concluded that moving the waste would give rise to a potential detriment to human health. These findings fundamentally affect our conclusions in relation to the acceptability of the development proposal.
Location
8. Finmere Quarry landfill site is located in the north-east of Oxfordshire close to the boundaries with Northamptonshire and Buckinghamshire. It is accessed off the A421 which runs to the north of the site. Finmere village lies to the north east, approximately 450 metres from the edge of the landfill site.
The Site and its Setting (Plan 1)
9. The application site is an existing landfill site within an Area of High Landscape value and a predominantly agricultural and countryside setting.
10. The nearest properties to the application site are Widmore Farm, approximately 250 metres to the west of the application site, Foxley Fields Farm Bungalow (currently owned by the applicant) which is just within the application boundary on the eastern edge of the site and Boundary Farm approximately 250m to the southeast of the application site.
11. Bridleway 7 runs from Finmere in a generally southerly direction to the south of Foxley Fields Farm. Footpath 5 runs from Finmere to join Bridleway 7 just below Foxley Fields Farm. Bridleway 6 runs from Bridleway 7 to the southeast. Bridleway 4 runs from Widmore Farm to Finmere.
Details of the Development (Plan 1) (download as .pdf file)
12. The development would consist of introducing a new working order for the filling of cells, revising the direction of working and allowing for some cells to be filled before other cells have been restored. The majority of cells 1, 2, 3, 4, 5, 6 and 8 have been over-tipped. The applicant proposes to relocate the over-tipped waste to cell 7. The applicant states that the quantity of over-tipped waste to be relocated is approximately 260,170 m³ and that the capacity of cell 7 is approximately 261,000 m³, therefore, providing sufficient capacity to receive all the over-tipped waste.
Background Information and History
13. The quarry was originally granted planning permission for sand and gravel extraction, on appeal, on 12 July 1993 (ref: APP/U3100/A/91/CHS 511/90 182742). Since that time planning permission has been granted for infilling with commercial and industrial waste on 29 April 1998 (ref: 96/00591/CM). In 2005 planning permission was granted to increase the height of the landfill (reference 00/01480/CM). The operator tipped to levels higher than those permitted in 2005. No import of waste has taken place since August 2007.
14. This application has been required as a result of the Enforcement Appeal decision in January 2007. It should be noted that the applicant has appealed to the High Court against the Appeal Decision, known as a Section 289 Appeal (Appeal Court Reference No. CO/1159/2007).This application has been made without prejudice to the High Court Appeal. Should the applicant succeed in their challenge then any planning permission granted for this application may not be implemented.
Consultation Responses and Representations
Environment Agency
15. The Environment Agency objects to the proposed development on the grounds that the removal of waste from the site would increase the risk to human health from Hydrogen Sulphide.
16. The Environment Agency state that landfill gas sampling was undertaken in January 2008. The results were scrutinised by the Health Protection Agency (HPA) who concluded that the levels of hydrogen sulphide recorded at the site may potentially be detrimental to the health of both those on and off the site. The key points raised in the HPA’s report are included at Annex 1 (download as .doc file) to this report.
17. The Environment Agency state that landfill gas is not well controlled at the site. Cells 1 and 2 are the only cells to have permanent gas infrastructure in place. There are a small number of Pin wells (temporary narrow collection pipework) but these are not designed to be a permanent feature. In order to comply with the Environment Agency’s PPC permit, the site would need to be capped and fitted with permanent gas and leachate equipment.
18. Additional comments have been received from the Environment Agency concerning alternative options, other than leaving the waste in situ, that would allow the over-tipped waste to be relocated. The Environment Agency advise that there is no method of moving the waste that would remove the risk of gas escaping into the atmosphere. The Environment Agency state that the only alternative option would be to cap the site and install gas and leachate infrastructure and leave the waste in-situ until such time as the in-waste gas contains lower levels of hydrogen sulphide and then remove the over-tipped waste. However, the Environment Agency state that this option would be impractical for the following reasons:
- The site will continue to produce gas for well over 10 years. - It is not possible to predict when the levels of hydrogen sulphide have reduced sufficiently. - The gas and leachate infrastructure would need to be removed to relocate the waste and replaced again. This would be costly and impractical. - Exposing such old waste would result in considerable odours.
19. For the reasons set out above, the Environment Agency recommend that the waste is not excavated in the future. They say that the site could be made stable and to an appropriate contour with a small amount of recontouring. They further state that the site has yet to finish its settlement and that current research suggests that this type of site achieves approximately 30% settlement.
Cherwell District Council
20. Cherwell District Council had no objections to the proposal during the initial consultation. However, following the Environment Agency’s response, Cherwell District Council has made the following comments: They are very disappointed that the over tipped heap cannot be reduced in height and that there are dangerous levels of gas at the site. They request that the County Council considers what other remedial counter measures should be put in place (better capping, venting by flares, landscaping, smell monitoring and abatement etc.) and that some analysis is done to determine what is in the waste that has caused this situation and whether that tipping was authorised.
Finmere Parish Council
21. Originally raised objection to the development proposed. However, the Environment Agency’s comments have since been circulated and the Parish Council have made the following comments:
- Following the Environment Agency’s report, Finmere Parish Council concludes that Oxfordshire County Council is likely to refuse the planning application. - Any refusal would mean that the Enforcement Notice would no longer be effective and that the over-tipped waste would not be moved to accord with the permitted contours. - Finmere Parish Council are very concerned that the village will be left with an “unsightly alien landform”, which is the result of the operator’s illegal actions that have already been examined in public and found to be wrong. - If the over-tipped waste must remain the Parish Council requests that the village plays a central role in the design of the final restoration and the methods. - They also request that the village be protected from further harm by ensuring that Oxfordshire County Council regularly monitor existing and new permissions and that any non-compliance is rigorously enforced.
22. The Parish Council held a parish meeting on 13 June 2008 to discuss, in the event that planning permission was refused, the options of retaining all the over-tipped waste on site permanently or retaining it temporarily until such time that the over-tipped waste could be safely removed. The meeting concluded that:
- the over-tipped, unsightly and stinking mound should be capped and landscaped immediately - the landfill gas should be flared or used in power generation - no more waste be dumped to change the contour of the mound - no extraction of gravel or tipping of waste occur anywhere else on site until the requirements above have been met - reparations should be to the satisfaction of Finmere villagers.
23. There was little support for the option of temporary retention of the over-tipped waste as (i) they had been informed elsewhere that the County Council cannot legally do this and (ii) there is benefit in permanent mature landscaping to stop the unsightly nature and damage to the amenity of the village.
24. The village want existing and future conditions to be rigorously enforced. A recreational and habitat facility that compensates the village for the twelve years of aggravation. They want further detailed investigations should be carried out with a view to accelerating remedial work to reduce the exposure to hydrogen sulphide and increase the frequency of monitoring in the interests of protecting public health. When tipping is resumed at the site they want rigorous action to ensure that only waste conforming to the conditions is tipped and no over-tipping takes place. The village considers that the County Council and the Environment Agency allowed the over-tipping to accrue unchecked and that these omissions constitute maladministration.
Thames Water
25. No objections
Representations
26. No representations have been received.
Relevant Development Plan + other Policies
27. All relevant policies are listed at Annex 2 (download as .doc file) . The main policies relate to the restoration of landfill sites and whether the potential local environmental impacts are acceptable.
Restoration
28. Oxfordshire Minerals and Waste Local Plan (MWLP) policy W7 (i) sets out that the landfill site and methods of operation should be capable of progressive restoration and completion within an acceptable period. MWLP policy PE18 states that regard should be given to the code of practice set out in the plan. The MWLP code of practice states that schemes of working should be designed to allow progressive restoration and should minimise the amount of land disturbed by waste disposal at any one time. Schemes should tie in closely with landscaping and restoration schemes.
Local Environmental Impacts
29. National Planning Policy Statement 1: Delivering Sustainable Development (PPS1) paragraph 20 sets out that the management of waste should be carried out in ways that protect the environment and human health.
30. The Non Statutory Cherwell Local Plan (NSCLP) policy EN1 states that development which would have an unacceptable environmental impact will not be permitted. MWLP policy W7 (b) relates to landfill sites and states that there should be no material damage or disturbance to the environment or to the amenities of local residents by reason of noise, dust, vermin, smell, gas and other pollution. CLP policy ENV1 and NSCLP policy EN3 state that development which is likely to cause materially detrimental levels of smell, noise, vibration, smoke and fumes will not be permitted.
Comments of the Head of Sustainable Development
31. The main issues to address are whether the development complies with restoration policies; whether the local environmental impacts are acceptable and whether there are implications for the Enforcement Notice.
Restoration
32. The proposal seeks to revise the phasing of the landfilling operation to form a more acceptable landform and to enable cells to be filled and restored progressively. The proposal therefore accords with part (i) of MWLP policy W7 and the rephasing would allow the site to achieve the approved restoration contours in an acceptable timeframe in accordance with MWLP PE18.
Local Environmental Impacts
33. The rephasing of the site to achieve permitted land levels is dependent upon excavating waste in order to relocate it. The potential environmental impacts of excavating and relocating the waste were discussed at the enforcement appeal. However, at the time of the enforcement appeal, the Environment Agency did not have the information that they have now and did not object to removal of the over-tipped waste. The Environment Agency has now undertaken monitoring of the site which has revealed levels of a landfill gas, namely hydrogen sulphide, at very high concentrations. They advise that the waste should not be excavated as there is a risk to human health both on and off the site. The proposal has the potential, therefore, to cause damage and disturbance to the amenities of local residents by reason of smell and gas and would, therefore, be contrary to MWLP policy W7 (b), CLP policy ENV1 and NSCLP policy EN3.
34. The Environment Agency state that the only option other than leaving the waste in situ permanently would be to fully cap and install gas and leachate infrastructure and wait until the gas levels have reduced and then move the over-tipped waste. They advise against taking this course of action for the reasons set out in paragraph 17 to this report.
35. Finmere Parish Council agree with the Environment Agency that the waste should not be moved now or in the future but for different reasons. Whilst it is possible for the County Council to issue a revised enforcement notice requiring the over-tipped waste to be removed at a time in the future, there is considerable doubt as to whether the Council would win any appeal against the notice. The uncertainty as to when the over-tipped material could be removed (it could be in excess of twenty years), the possible unreasonableness of requiring an expensive gas monitoring system to be installed twice and the amenity affects of removing what would inevitably be even more smelly waste materials, are factors militating against a successful defence of a revised enforcement notice. Carrying out early, permanent restoration would result in a mature landscape, which the Parish Council now want, that need not be disturbed in the future.
36. It is important that the site is capped, appropriate infrastructure fitted and the site restored to a high standard as soon as possible to ensure that the site is safe and not causing a nuisance to local residents. In these circumstances I reluctantly concur with the views of the Environment Agency and Finmere Parish Council.
37. A further application would need to be submitted for planning permission to retain the landfill at current (over-tipped) levels and to restore the site. Indeed, the operator has participated in a meeting with representatives of the Environment Agency and Finmere Parish Council to discuss making such an application. County officers have said they will ensure that Finmere Parish Council is involved throughout the whole process.
38. The Environment Agency is to issue a new environmental permit for waste disposal at the site very soon. The relevant details of any permit that is issued will be set out in an addendum to this report if available. It is intended that the permit will require that remedial work is carried out immediately to temporarily cap the waste and flare the gas and, therefore, stop the smell.
39. The Parish Council want the landfill gas to be flared or used in power generation. The new permit will require flaring and there is already planning permission for installation of a gas engine for power generation. They also want no extraction of gravel or tipping of waste to occur on site until the site is made safe. However, the operator has planning permission, obtained on appeal, for gravel extraction at the site that is not restricted. I understand that the new environmental permit will require the site to be made safe before any more waste is deposited at the site. The permit will be the basis for the Environment Agency to monitor the site rigorously in future to ensure that only permitted wastes are deposited and that hydrogen sulphide is not allowed to escape.
Enforcement Notice
40. The applicant’s solicitor has requested that in light of the Environment Agency’s objection that Oxfordshire County Council withdraw the Enforcement Notice. The applicant’s solicitor has stated that in the event that Oxfordshire County Council do not withdraw the Enforcement Notice the applicant would reserve the right to place the matter before the High Court in the Section 289 Appeal.
41. In the event that this application is refused, the landfill site would still be over-tipped. The site would, therefore, still be in breach of its planning permission. The Enforcement Notice should not be withdrawn until there is no longer a breach of the planning permission. In order to achieve this, an application to retain the waste would need to be made and approved. At that time the enforcement notice would no longer have any effect. It is considered that this course of action would be the best as it would retain the option to enforce if the necessary decisions do not occur.
Conclusions
42. The rephasing of the landfill site is necessary in order to comply with the Enforcement Notice and to achieve an acceptable landform. The proposal would enable the landfill site to be restored progressively to an acceptable afteruse and would, therefore, satisfy MWLP W7 and PE18. However, the impact of excavating the waste in order to achieve the permitted landform would pose a potential health risk to site employees and local residents. Given the seriousness of the potential impacts I believe that the precautionary approach should be taken and I, therefore, recommend that planning permission for a rephasing of working be refused. A planning application would need to be submitted to retain the landfill at current (over-tipped) levels and to restore the site. That application is likely to be made as its approval would enable the operator to comply with the environmental permit and for waste to again be deposited in the rest of the site.
RECOMMENDATIONS
43. It is RECOMMENDED that:
(a) planning permission be refused for the development proposed in Application 07/006550/CM for the following reason:
That the proposed development is contrary to MWLP policy W7 (b) and CLP policy ENV1 and NSCLP policy EN3 in that it would damage and disturb the health and amenity of local residents by reason of smell and gas;
(b) a planning application be invited to retain the over-tipped waste and modify restoration of the site; and
(c) the Enforcement Notice be retained unless and until planning permission is obtained for retention of the over-tipped waste.
CHRIS COUSINS Head of Sustainable Development Environment & Economy
Background Papers: File no. 8.1/6232/6 “To continue the development of Finmere Quarry landfill site without complying with condition 7 of Planning Permission No. 00/01480/CM (so as to substitute or impose a new scheme of working cells, new directions of working and to permit the filling of cells before previous cells have been restored)” can be viewed at the Minerals and Waste Development Control Team, Speedwell House, Speedwell Street, Oxford, OX1 1NE
July 2008
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