Agenda item

Report by the Assistant Director For Strategic Infrastructure And Planning (PN6).

 

This is a report to bring to Committee the issue of the serving of the Prohibition Order for the Review of the Mineral Planning Permission (ROMP) at Thrupp Farm and Thrupp Farm, Radley which was resolved to progress at the meeting of the Planning & Regulation Committee on 9 September 2019. The report sets out the issue to be considered which is whether the recent submission of a related planning application for a processing plant, conveyor and Bailey bridge for the removal of the mineral from part of the ROMP site and additional information provided with regard to the progression of the application for the review of mineral conditions on the ROMP planning permissions DD1 and DD2 changes the Committee’s previous decision as to whether mineral working from the ROMP has permanently ceased or not and therefore the duty to serve a Prohibition Order or not.

 

It is RECOMMENDED that the Planning & Regulation Committee’s previous conclusion from its meeting on 9 September 2019 (Minute 39/19) that mineral working on the Radley ROMP site has permanently ceased and that there is a duty to serve a Prohibition Order is not rescinded but that the service of the Prohibition Order is held in abeyance pending:

 

i)          the progression and determination of application no. MW.0075/20 for processing plant, a conveyor and a Bailey Bridge for the removal of mineral extracted from part of the ROMP permission areas DD1 and DD2; and

ii)        H. Tuckwell and Sons Ltd providing an update, accompanied by documentary evidence, on progress with regard to the work on the application and Environmental Statement for the review of conditions for the ROMP permission areas DD1 and DD2 to the meeting of the Planning & Regulation Committee on 8 March 2021.

 

 

The Committee considered (PN6) a report on the issue of the serving of the Prohibition Order for the Review of the Mineral Planning Permission (ROMP) at Thrupp Farm and Thrupp Farm, Radley and setting out whether or not the recent submission of a related planning application for a processing plant, conveyor and Bailey bridge for the removal of the mineral from part of the ROMP site and additional information provided with regard to the progression of the application for the review of mineral conditions on the ROMP planning permissions DD1 and DD2 changed the Committee’s previous decision as to whether mineral working from the ROMP had permanently ceased or not and therefore the duty to serve a Prohibition Order or not.

 

Mr Periam presented the report. He and other officers responded to questions from members.

 

Councillor Johnston – Mrs Crouch advised that a Freedom of Information request had been received relating to the release of the Operator’s Counsel’s opinion and assessed as being supplied as confidential legal advice. A further request to review that decision was currently being considered.

 

Councillor Roberts referred to a suggestion from the parish council that there was an area not covered by any mineral extraction but is part of the ROMP.  Would it be possible to continue with the prohibition Order on just that section.

 

Mr Periam advised that the areas shown on the map were covered by the two relevant permissions and if a ROMP application came forward then that would have to relate to the whole area.

 

Roger Thomas spoke on behalf of the Friends of Radley.  He referred to the Committee’s decision in June 2020 to consider the future of the prohibition order in the light of counsel’s opinion which had been received on behalf of the operator.  That had not been made publicly available and, in his view, made it almost certainly unlawful to make a decision on the basis of a secret submission by the applicant.  He did not agree with the decision not to release the document. The question facing the Committee now was mineral working likely to resume.  A year ago the Committee had concluded that it was felt that it wouldn’t but it was now being suggested that it might at a future date. The Committee were being told a lot about Tuckwells and what they may do regarding a planning application and ROMP application but Tuckwells were not the landowner.  Curtis were the landwoners and extraction would only take place if Curtis wanted it to but what we have seen from them is 30 years of prevarication and obfuscation.  He felt the real truth lay in a statement made under oath by the Managing Director of Curtis in 2007 that all extraction at Radley had been completed and reserves exhausted in 1990. Tuckwells have said they need an uninterrupted supply of gravel for their business but lack confidence that any extraction would resume at Radley to the extent that they are preparing 4 separate applications for extraction at a separate site. That did not suggest to him that work would resume at Radley. Curtis was not a party to this current process and had made no statement. Why not? Their Counsel’s opinion apparently discusses the intention of the landowner but we hadn’t been able to see that. At the moment the Committee has every reason to uphold its original conclusion that working was unlikely to resume and the prohibition order should be progressed. He suggested Curtis be given one month to make a clear statement of their intentions as landowner as all the Committee had before it were the hopes of a contractor so concerned that extraction might never resume at Radley was busy making arrangements to extract elsewhere.  He urged the Committee to progress the Order.

 

Responding to Councillor Johnston Mr Thomas confirmed that as an unregistered and non-practising barrister he felt qualified to have taken a view on the legal opinion had he been allowed to see it.

 

Andrew Coker who lived at Thrupp House spoke on behalf of households south of the proposed conveyer system and extraction, therefore those most affected by this application.  He agreed with all the points made by Richard and Roger and referred particularly to the statement made in 2007 by the Managing Director of Curtis under oath that all extraction had been completed and all reserves exhausted, in the 1990s. If that was the case he asked why were we here today? He suggested that that was because back in 2007 they had wanted a tarmac plant on their land so had been prepared to make such a statement but here we are13 years later with a proposal to build a conveyor belt to help extract gravel that I thought wasn’t there. The truth was that this blight had been going on for decades with both Curtis and Tuckwells running rings around the planning authorities and by playing one authority off against the other industrial units had continued to operate illegally in the Green belt but if the Committee decided to say no now then that would begin the process for removal of these unlawful activities and buildings and the return of land back into either agricultural land in line with the original condition of the permission or nature reserve.  He considered the real reason for the application had been to continue the misuse of the green belt and the County Council should stop this application thereby supporting the District Council to secure removal of the illegal industrial units.  Had these companies been responsible stewards and worked with the local community our objections would not have been so vociferous.  He gave an example of that disregard for both community and environment citing the poisoning of ground water due to illegal infill north of their homes which had resulted in 5 times the recommended levels of manganese and rendering the well water unsuitable for drinking.  The track record for these companies was not good which suggested they were likely to disregard  planning law, string out their extraction for many more years than you allow and leave it in a disgraceful state.   But then what was there to extract as according to their managing director extraction had been completed in the 1990s. He urged the Committee to put a stop to this now and end this continual merry go round of obfuscation and planning abuse.

 

Councillor Johnston advised that in the interests of transparency he had met Mr Coker but asked him whether in his opinion Counsel’s opinion had been secured by the applicants in order to derail the ROMP prohibition order and the planning application submitted to stymie the appeal process against the Vale of White Horse District Council’s decision to refuse further illegal use of the Curtis site.

 

Mr Coker replied that he considered that to be the case and if he had been able to see that opinion would have been better placed to give a more rounded view of it.

 

In response to the Chairman Mrs Crouch advised that the matter before the Committee was whether the Prohibition Order should be served and not the planning application that had recently been submitted.  With regard to that and as had been mentioned the county council was currently waiting for the outcome on the screening direction from the Secretary of State and so the matter of the planning application was not before the Committee and should not be considered at the present time.

 

Richard Dudding for Radley parish Council had been unable to join the meeting due to technical difficulties and so his statement on behalf of the parish council was read out to the Committee by the Committee officer.

 

Statement by Richard Dudding

 

“The site being considered is in the Radley Lakes area, which has wonderful potential for nature conservation and quiet recreation.  However, we recognise that this needs to be achieved by a transition which respects commercial interests and is based on dialogue with landowners.

 

The area with remaining gravel is owned by JCSL.  The Parish Council had six times sought dialogue with them and had six times been rebuffed. 

 

During the last 25 years JCSL have extracted no gravel in Radley. We believe that they have had no intention to do so. But rather to keep open the possibility of extraction and, thereby, persuade the Vale District Council to allow ‘temporary’ uses of their nearby industrial yard. In our view they have been gaming the planning system. In doing so they have blighted the area.

 

So what’s new?

 

Certainly not the Tuckwells planning application for processing gravel. It is a cut down version of an earlier application, for which permission was given in 2012. That permission did not result in an ounce of gravel being dug and the permission lapsed.  It is hard to see why this new application changes things. 

 

Tuckwells have a good record of openness and dialogue, but the officers report leaves important questions unanswered.

 

·           Do Tuckwells have a firm agreement with JCSL to extract on their land?

·           Would they be able to start extraction if JCSL continued to want delay?

·           Would they go ahead with extraction at Radley if their new areas at Sutton Wick looked more advantageous?

·           Would they close business entirely in Radley if they got an attractive offer from Arnold White Estates, who have included their site in development proposals recently submitted to the Vale?

Overall, there is plenty of cause for scepticism and no new evidence of substance that extraction will resume. We consider that the legal tests for the prohibition order continue to be met. Some caution might be understandable, but it is not cost free. Holding back prolongs blight.

 

We do however have one suggestion.  The area to the north of the disused railway has no gravel resources and no one is claiming that the land is needed in connection with extraction. OCC could proceed anyway with a prohibition order for this area even if they believe that the area to the south of the railway line justifies a further review of the evidence. This is a second best but would be progress.”

 

Nick Dunn (Land & mineral management) spoke on behalf of H Tuckwell and Sons. The Thrupp Farm ROMP area was owned by J. Curtis and Sons Ltd and Tuckwells had entered into a legal contract with them to work this mineral subject to first submitting the ROMP application for modern planning conditions. He had worked on this application and the required environmental impact assessment since June 2018. In 2014 the Secretary of State had quashed an earlier Prohibition Order and awarded full costs against Oxfordshire County Council. Principal to that decision had been a planning application to transport and process the mineral from the ROMP Area to Tuckwells’ site at Thrupp Lane and the Inspector had considered, in part, that this planning application provided evidence of a genuine intention to extract minerals for the ROMP. Today we are in the same position as Tuckwells had invested around £30,000 in making the planning application to transport and process the mineral at their Thrupp Lane site. Nevertheless, unlike 2014, Tuckwells and Curtis have entered into a legally binding contract to extract the mineral subject to planning conditions being approved. This and other evidence showed that a genuine and even stronger intention to extract minerals than had existed in 2014 when the Prohibition Order was quashed. That evidence had also been assessed by legal Counsel whose formal Opinion confirmed that the Prohibition Order could not be sustained if put to the Secretary of State at another inquiry.  In stark contrast, the 2019 recommendation to issue the Prohibition Order by both your advisors and local objectors had been based on conjecture without any objective supporting evidence and made without any consideration of the available evidence and any consultation with Curtis or Tuckwells who could have provided details of the work undertaken on the ROMP to date.

 

Furthermore, when evidence was provided to Committee in January 2020 it had been simply disregarded. A recommendation had now been made that the Prohibition Order should be delayed rather than quashed, so that the planning application to process the mineral at Thrupp Lane could be determined.

 

However, although the processing application provided evidence that the ROMP area was intended to be worked, the working of the ROMP was not reliant on the grant of this planning application. For example, the mineral from the ROMP would be taken off site by road and processed elsewhere or at Thrupp Lane if the processing application was not granted. Transporting  mineral to Thrupp Lane without using the road was simply an environmentally preferable option rather than a precursor to the viability of mineral extraction in the ROMP. The outcome of the processing planning application should, therefore, not be used to support the Prohibition Order.

 

Your officers also recommended delaying the service of the Order until March 2021 so Tuckwells could provide further information but this was considered unreasonable, as sufficient evidence, supported by Counsel, had already been provided. There was simply no evidential basis to support the Prohibition Order and we do not understand why county officers were persisting with their assumptions and not listening to the facts.  The order should be quashed and a  decision now supporting the officer recommendation would simply be ‘kicking the can down the road’ at the expense of creating more ongoing uncertainly and costs for Curtis and Tuckwells who were due to make significant financial investments in the ROMP Area with the installation of piezometers and the start of hydrological and ecological monitoring costing tens of thousands of pounds all at a time when there had been a significant economic downturn and uncertainty caused by the ongoing pandemic, which might take many years to remedy.  As a Mineral Planning Authority you have a duty to support sustainable mineral development and ensure a sufficient supply of aggregate in your County which is what was being proposed at the Thrupp Lane ROMP.

 

We therefore respectfully request that you support the sustainable supply of minerals from a site already with planning permission by ending this ongoing uncertainty and cost and make an evidence based decision to quash the Prohibition Order today rather than delaying a decision for another 6 months.

 

Finally it should be noted that representations from local residents are the same as those made to the Inspector in 2014. They had been rejected then as being irrelevant and not based on evidence so those same arguments should, therefore, not be given more weight at this time as they were still wrong and would be likely to result in the award of costs against them and the county council at any further inquiry.

 

Mr Dunn then responded to questions.

 

Councillor Gawrysiak asked if the motion was passed to pause until March would that allow sufficient time since you’d been working on this since 2018 to submit a full and frank planning application and secondly whether or not he would be willing to arrange to have the legal opinion released?

 

Mr Dunn advised that a planning application would need a full environmental impact assessment. Principal to that they would need at least one year for hydrological monitoring and sampling.  The intention was to put in piezometers in the autumn with a year to collect data,  move forward to design development and then to the planning application stage.  That was a long way off but was a typical and responsible process for an EIA.  He was not in a position to offer release of the legal opinion but would discuss the matter with his clients.

 

Councillor Johnston advised that Mr Dunn was the 7^th or 8^th consultant he had questioned over 38 years and as no gravel had been extracted for 20 years or so why did he feel it unreasonable for this Committee to ask his clients to wait until March 2021 to see if more evidence could be produced because to date there had been very little information of any substance?

 

Mr Dunn advised that his Company had worked for Tuckwells for 30 years and as they had now taken on the site with the legal agreement it was full steam ahead. He referred to other similar sites nationally that had opened and while he understood the concerns this situation was not uncommon.

 

Councillor Roberts asked why if the mineral deposit was specific to area DD2 why would you then object to a prohibition order on area DD1?

 

Mr Dunn advised that there was some interconnectivity between the 2 sites.  There was also an appeal ongoing on one of the sites and how that all fitted together as far as the legal process was concerned would need to be looked at.  His focus was getting gravel out of the ground.

 

Councillor Phillips referred to the claims by the objectors regarding the statement made under oath that no mineral remained on the site. Could you comment on that and confirm how much mineral there was and how long that  would take to extract?

 

Mr Dunn felt unable to comment as he did not know the context in which that statement had been made.  He confirmed that there was a good million tonnes of material which could take 10 years to extract depending on market conditions.

 

Councillor Gawrysiak asked if the applicants would be in a position, if this recommendation were agreed, to give the Committee a substantial and substantive case why this working should be considered in the future in the light of the legal statement stating there was no material and the site hadn’t been worked for 20 or 30 years.

 

Mr Dunn replied that the mineral was there and the intentions of the applicant were clear as indicated by the level of investment referred to.  He reminded the Committee about the intention to install piezometers in 4 months time at a substantial cost. Additional monitoring would cost £1000/1500 per month.  He needed to design the site but couldn’t do that until they were clear about  hydrology on the site and that would take at least a year. There would also be a winter bird survey carried out. Pending that he felt it premature to say anything else.

 

Mr Periam drew the Committee’s attention to paragraph 18 of the report in which the Inspector set out the context of the statement made on behalf of John Curtis and Son which read as follows: “Whilst Mr John J Curtis and Sons Ltd made a statutory declaration in 2006 suggesting that work had been completed in 1990, I accept that this was a refence to the minerals dug to supply the Tarmac concrete plant and not a reference to all reserves within the ROMP site having been worked out.”

 

Councillor Fenton asked why were the applicants concerned at the current recommendation to delay until March 2021 when the surveys referred to were likely to take upwards of a year to complete?

 

Mr Dunn replied that the objection revolved around the uncertainty caused. His  clients had provided clear evidence to Counsel that they wanted to work the site with significant investment undertaken with the promise of more. The order should be quashed now and later if it was felt that nothing was being done it could be served again.

 

Councillor Phillips asked if the recommendation were agreed was it the intention to carry on doing this work?  If that was the case then there had been ample opportunities to get this hydrology work and bird survey work done.

 

Mr Dunn replied that it was the intention to get this done but his clients were under pressure.  He had been waiting for legal contracts between the two parties to be agreed.  That had been done last summer but then we went into this probation order process and Tuckwells had had concerns regarding the merits of making this type of investment against the backdrop of uncertainty caused by that process.

 

Councillor Roberts considered that as no mineral existed in area DD1 it seemed sensible to move the plant on that site to DD2 and proceed with the order for DD1. That would also assist the Vale of White Horse District Council to resolve issues regarding enforcing permissions on the industrial site.

 

Councillor Johnston clarified that both sites were tied together insofar as if the order was served on DD1 then the plant would then have to be moved at a cost to the company.  It was in their interests to keep the sites contiguous.

 

Councillor Gawrysiak accepted the need to pause this process until March but he did not go along with the case put forward by Mr Dunn to relieve the pressure on the companies involved.  They had done nothing for years with regard but it seemed to him that this process was now beginning to have an effect on them making them focus. However, he felt the Committee needed to be aware that, without pre-empting what might happen at a future meeting, if there was no evidence then consideration might need to be given to serving the order. 

 

He moved the officer recommendation which was seconded by Councillor Johnston.

 

Councillor Phillips emphasised the need that come March it was imperative to see some progress which would either put the notice into operation or see it withdrawn. It was important to avoid further drift.

 

The motion was put to the Committee and carried by 12 votes to 0 (Councillor Handley was absent from the meeting during the vote).

 

RESOLVED: that the Planning & Regulation Committee’s previous conclusion from its meeting on 9 September 2019 (Minute 39/19) that mineral working on the Radley ROMP site has permanently ceased and that there is a duty to serve a Prohibition Order is not rescinded but that the service of the Prohibition Order is held in abeyance pending:

 

i)          the progression and determination of application no. MW.0075/20 for processing plant, a conveyor and a Bailey Bridge for the removal of mineral extracted from part of the ROMP permission areas DD1 and DD2; and

ii)         H. Tuckwell and Sons Ltd providing an update, accompanied by documentary evidence, on progress with regard to the work on the application and Environmental Statement for the review of conditions for the ROMP permission areas DD1 and DD2 to the meeting of the Planning & Regulation Committee on 8 March 2021.