The Review of NPPG4: Land for Mineral Working

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THE REVIEW OF NPPG4 LAND FOR MINERAL WORKING

CHAPTER 6. LOCATIONAL AND OPERATIONAL CONSIDERATIONS

6.1. NPPG4 sets out a number of key locational and operational considerations in relation to minerals planning:

  • safeguarding mineral deposits: Paragraph 13 notes that extraction can only take place where resources exist and are accessible. It notes that safeguarding resources does not necessarily imply that their extraction would be acceptable;
  • locational constraints on mineral extraction including important environmental assets. Paragraphs 16 to 21 set out a hierarchical approach to natural heritage designations, paragraphs 22 to 24 define criteria for developments which could affect conservation of the built environment, paragraphs 25 to 27 focus on minerals in green belt locations, paragraphs 28 and 29 consider safeguarding on agricultural land, and paragraph 30 sets out criteria for other areas. Other constraints include tourism and recreation (para. 31) and proximity to settlements (para. 32); and
  • operational considerations including site conditions, visual impact, noise, dust, watercourses and ground water, transportation, and restoration, aftercare and after-use are set out in paragraphs 33 - 47.

6.2. The following policy and advice relating to operational and locational considerations have emerged since the publication of NPPG4 in 1994:

  • the EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (amendments, 1997) notes that criteria for evaluating proposals are set out in the Town and Country Planning (Habitats) Regulations 1994;
  • NPPG14 (1998) broadens the emphasis on natural heritage and landscape protection set out in NPPG4 to include local designations, 'wild land' and areas surrounding it, and areas which may not be designated but which would potentially be sensitive to such developments. It also highlights the use of the precautionary principle in determining applications;
  • NPPG17 (1999) highlights potential impacts of minerals transportation to markets, and suggests scope for mitigation, or encouragement of alternative modes to road haulage through the use of the development control process and its associated scope for mitigation;
  • the Human Rights Act (2000) has implications, particularly in relation to the need for the development control process to be sufficiently transparent to allow for individuals as well as developers to have their concerns adequately considered and addressed. This is reinforced for the land use planning system by NPPG1 (2000), which places considerable emphasis on issues such as social justice, transparency and accountability; and
  • the EU Water Framework Directive (2000) places an emphasis on operational control and restoration, aftercare, and after-use. The Directive will be translated into Scottish law through a Bill in the Scottish Parliament that will be introduced in 2002. A recent consultation paper 4 sets out the policy that the Scottish Executive believes should form the basis for this Bill.

6.3. Following the publication of government sponsored research on the implications of opencast coal mining for children's health, additional text was added to NPPG4 under the heading of operational considerations. The research concluded that increases in particle concentrations close to opencast coal sites were not due to the release of coal particles but were more likely caused by earth moving and excavation activities common to all mineral workings. Paragraph 37A of NPPG4 states that ' in the circumstances, planning authorities and the industry should, as a minimum, adopt the researchers' assessment framework in drawing up and considering proposals for new surface mineral workings, or extensions and modifications to existing sites.'

SAFEGUARDING MINERALS DEPOSITS

6.4. One of the common aims of minerals planning policy is to safeguard existing reserves from permanent sterilisation. Whilst one authority felt that more guidance on the safeguarding of reserves would be helpful, the review of development plans revealed that most plans contain clear policies to protect deposits from development that may sterilise or hinder future extraction. Another authority noted that the ability to safeguard minerals depends on accurate data as to their existence in the first place, and expressed concern that this is simply not available to planning authorities.

LOCAL CONSIDERATIONS

Minerals Planning and Environmental Designations

6.5. Stead and Nadin (1999) assert that the land use planning system lacks sufficient spatial emphasis to effectively address environmental and resource management at a strategic level. They state: "there is continuing pressure for extraction in areas rich in mineral deposits which are also often in environmentally sensitive areas, and there are few sites available for landfill, with the result of major land use planning conflicts." 5

6.6. This issue was also raised by industry stakeholders, who felt that the combination of the hierarchical approach to designated areas set out in NPPG4 with more recent guidance in NPPG14 has resulted in confusion and a lack of transparency in the process. For example, the Quarry Products Association (QPA) felt that the sections that deal with environmental / landscape designations have lost their meaning as local authorities have designated sites according to local priorities (e.g. local nature conservation sites, Areas of Great Landscape Value (AGLVs)), going outwith the national designation framework. Another participant pointed out that, given the large share of Scotland covered by designated status, and the views of Scottish Natural Heritage (SNH) on extraction in National Scenic Areas (NSAs), this is likely to cause major problems for Industry in terms of maintaining levels of production which meet demand. One authority agreed with this to a certain extent, noting that in some sensitive areas, there may be problems arising with supplies of sand and gravel. However, the Authority pointed out that there may be other reasons for this, aside from environmental issues.

6.7. The NGO/statutory consultee representatives also agreed that greater consideration of natural heritage should be included in a revised NPPG4, generally feeling that it should adopt a hierarchical approach to natural heritage and landscape designations. SEPA also suggested that Paragraph 21 should be reassessed, particularly to enable a role for statutory consultees in determining the 'judgement' on any exception to the normal policy of protecting nationally designated sites.

6.8. A number of local authorities reinforced the fact that NPPG4 has now become inconsistent with NPPG14. Several suggested that paragraph 30 should be strengthened to note that local designations might well outweigh the case for mineral working, and that the protection of environmental resources extending beyond designations is inadequate.

6.9. One aspect of the guidance that appears to be causing universal confusion is the distinction between 'designated site' and 'designated area' in paragraph 19. The first bullet point states that mineral extraction should only be permitted where it can be demonstrated that the overall integrity of the designated area will remain largely unaffected. The second bullet point states that extraction should only be permitted where any adverse effects on the environmental qualities for which the site has been designated are outweighed by the benefits from the extraction. Whilst NPPG14 is consistent with its use of 'area', this does not totally remove the problems of interpretation. This was an issue debated at the Lingerbay Inquiry where the whole of Harris and beyond is in the 'designated area' of an NSA, raising the question of whether the assessment of the effects of any proposed mineral development has to examine impacts on the whole area, just in the vicinity of the site or some 'envelope' between these.

Conservation of the Built Environment

6.10. Whilst NPPG4 primarily considers this in relation to managing impacts of extraction, the supply of appropriate materials for conservation and restoration projects is also important. Whilst this section of the locational guidance appears to be causing little concern, one authority suggests that there is insufficient weight currently given in the NPPG to this issue.

Green Belt Locations

6.11. Whilst no issues specifically relating to mineral planning in green belt locations were raised during the course of the research, it is possible that this will become more of a concern in the future, as searches to identify new sites are widened. The function and purpose of the green belt designation is currently the subject of a broader debate, and a revised version of NPPG4 would need to take account of any ensuing shifts in policy.

Agricultural Land

6.12. A number of consultees felt that policy relating to agricultural land should not be confined to conserving that which is graded as 'prime land', particularly in the light of more recent flexibility on the part of policy makers, and the general shift towards agricultural diversification. The consultation paper on "prime quality agricultural land" was issued September 2001.

Example 6.1: Mineral extraction and agricultural diversification

There are an increasing number of applications for small-scale mineral extraction on agricultural land, which are being submitted as 'farm diversification' schemes. These run contrary to more obvious trends for larger (often extended) quarries and are often to supply very localised and specialised markets (e.g. low grade sand for local garden centres). There is a concern over the lack of policy guidance to assist in determining these cases, which revolve around issues of rural regeneration rather than the loss of prime agricultural land or the economic benefits associated with employment generation, and which may be promoted in areas where there is already a 10 year aggregates landbank.

NPPG4 does not make reference to the potential benefits of minerals extraction as a contributor to the parallel policy aim of encouraging agricultural diversification. In Ayrshire, the Structure Plan makes reference to parts of the area where rural diversification is to be encouraged. As a result, interim policy notes that whilst the landbank has yet to be agreed for the area, and the development of new sites is consequently being restricted, this does not apply to applications within the Rural Diversification Area.

Whilst the legitimacy of protecting prime land has increasingly been questioned, its relevance in terms of ensuring a sensitive approach to farming requirements may have been overtaken by changes in the agricultural sector in more recent years. In the example of Garvald Quarry, South Lanarkshire, the growing importance of organic farming has led to greater consideration being given to the importance of organic certification. Whilst the agricultural land that would potentially be affected by the Garvald Quarry extension was classified as grades 4 - 5, the owners of Garvald Home Farm objected to the application. The farm was recognised by the Soil Association as producing organic goods and was set to lose a significant part of the land to the extended quarry. The potentially negative reflection that the destruction of organically farmed land could have on a developer was underlined by the extent of the mitigation measures that Tarmac (the applicants) proposed for the Garvald Home farm. The land owners were not only offered replacement land, but the developer also met the costs involved in achieving Soil Association certification for this area of land.

Tourism and Recreation

6.13. Few concerns were raised in relation to this section of the locational guidance.

Example 6.2: Developing policies for minerals in relation to countryside access, South Lanarkshire Minerals Local Plan

Policy MP8 of the South Lanarkshire Minerals Local Plan (Public Access to the Countryside) sets out provisions to encourage countryside access:

"The Council will expect mineral developers (in conjunction with the Local Planning Authority or Local Access Forum) to investigate fully the potential for increasing public access to the countryside as part of their proposals. In addition, where mineral development will affect defined path network routes the following criteria will be applied:

  1. provision will be made for an appropriate diversion;
  2. long-term reinstatement of all disturbed routes will be guaranteed; and
  3. full consideration will be given to opportunities to improve existing public access to the countryside."

The draft policy placed emphasis on securing enhanced access, and this was welcomed by both community and user groups and SNH. However, industry representatives expressed concern about the wording of the policy, stating that such measures should not be 'expected', but 'requested', particularly as they may not always have powers to achieve the measures where they do not own the land. The revised plan therefore no longer makes reference to seeking enhancement, and follows Industry suggestions in terms of the wording.

Proximity to Settlements

6.14. This issue has a relatively high profile within the overall debate. A number of industry representatives were concerned that guidelines set out in NPPG16 were being inappropriately applied to other types of mineral extraction (e.g. that the 500 metre rule/'buffer zone' concept was being used to sterilise large areas surrounding settlements). NGOs also expressed concerns about this, but for different reasons, stressing that the definition of 'settlement' often does not extend to cover small groups of houses, and as a result they are not protected. SEPA suggests that further work on this section would be useful to secure greater clarity for both communities and Industry. The Agency expressed concern that local planning authorities often develop their own policies in respect of proximity of minerals development to settlements, which can lead to inconsistency. While every application still requires to be determined on its own merits it was suggested that some clarification or rule of thumb may be appropriate.

6.15. Some of the questionnaire responses confirmed that the NPPG16 guidance on buffer zones is being applied beyond opencast coal, with some local authorities viewing the additional advice as being particularly useful. One authority suggested that the distinction between NPPG16 and NPPG4 is anomalous, when the operational characteristics can often be very similar (particularly in terms of noise, and where blasting forms part of operations). Several authorities felt that paragraph 32 could be strengthened, and that consideration should be given to stipulating a minimum distance between mineral workings and nearest residences to allow for the protection of amenity (i.e. the NPPG16 approach should be translated to NPPG4). It was accepted however, that this approach should incorporate a degree of flexibility. For example, whilst the PAN50 thresholds are useful, there may also be instances where issues taken separately may fall within acceptable thresholds, but together may be unacceptable, particularly for sites close to residential areas.

Example 6.3: Use and misuse of the buffer zones concept

The analysis of Structure and Local Plans revealed variations in the interpretation of the concept of buffer zones particularly in terms of extending the provision across different types of extraction, and strengthening the provision itself.

  • Aberdeen and Aberdeenshire Structure Plan Policy 26: Four tier policy for mineral, landfill, land raise and wind farm proposals:"Tier 3 - Local Designations/ development will only be permitted following careful consideration of their effect on local designations and subject to individual site and local circumstances defined in Local Plans. Where harmful effects are likely, it should be demonstrated that no suitable alternatives exist in [other preferred] Tier 4 areas." Tier 3 areas include buffer zones extending 400m from settlement boundaries.
  • South Lanarkshire Minerals Local Plan Policy MP11:"Mineral development will not be permitted within 500m of existing occupied dwellings for the extraction of minerals with blasting, unless [various criteria]… or 250m of existing occupied dwellings for the extraction of minerals without blasting."
  • Fife Structure Plan Policy R3:"Proposals for mineral extraction will only be supported where they are accompanied by an assessment demonstrating that the following issues have been addressed: … the separation of working faces and settlements (a 500 metres minimum separation distance is required)…"

These provisions for buffer zones differ in the extent to which they state a presumption against minerals development, and their recognition of the need for varying approaches according to the type of proposal.

6.16. The issues relating to extraction near to where people live extends to a much more fundamental debate on communication between developers, communities and minerals planning authorities. Norman (2001) highlights the complexities in determining applications for minerals developments where local communities are often opposed to development. He notes that there has been growing public awareness of 'green' issues and a consequent increase in opposition to minerals developments, stating that "…the mining and quarrying industry now attracts more opposition than any form of planning proposal…On occasion, if one particular point of objection, made by a vociferous anti-quarry objector is not taken into account, allegations of bias, anti democracy and a favouring of big business will be made against a council. Indeed, when the final planning analysis is made, and it is concluded by planners that a development is acceptable, a planner will often find himself in the difficult position of having to support and defend the mining and quarrying industry, in the face of opposition from councillors, the public, the local media and community groups." 6

6.17. Norman also considers the impact of the recent human rights legislation on strengthening the public's role within the development control process. He calls for more industry and public partnership in undertaking statutory reviews of old minerals permissions, to allow for greater transparency in the process. This point is also highlighted by Murray (1999) 7 who suggests that Industry needs to find better ways of informing and consulting on proposals to ensure that both community opposers and supporters are represented in the process.

6.18. Industry has responded to this debate in recent years, by launching initiatives that aim to foster better relationships with communities surrounding quarries and extraction sites. For example, the Quarry Product Association launched its Good Neighbour Scheme last year, with the aim of minimising the disturbance caused by quarries to local residents 8.

Example 6.4: Community liaison initiatives, East Ayrshire and Aberdeenshire

The Finalised East Ayrshire Local Plan (February 2001) notes the importance of establishing links between communities and operators as a means of securing appropriate mitigation for developments. Policy M3 states that, amongst a range of requirements, applicants will be expected "(viii) to establish Liaison Committees with local representatives, to act as a forum through which relevant operational and associated issues can be discussed and addressed." Whilst in East Ayrshire, these primarily focus on opencast coal at the moment, their role in terms of complementing planning procedures, could foreseeably be extended to other forms of minerals extraction.

In Aberdeenshire, six-monthly liaison meetings have been held in relation to the operation of a quarry located near a SSSI, for over ten years. These meetings involve the local authority, community councils, SEPA, SNH and the local Wildlife Trust.

6.19. Paragraph 32 of NPPG4 does states that "where approval for mineral working is given, regular liaison between the developers and residents could be helpful in some circumstances." However, it neither sets out more specific ways in which this could be achieved, nor does it advise planning authorities to include it as a requirement within the application process.

OPERATIONAL CONSIDERATIONS

General Impacts

6.20. The previous section highlights the way in which it is difficult to separate out operational and locational considerations. Locational considerations aside, most of the local authority respondents felt that NPPG4, when combined with PAN50 and its annexes, provided adequate information on technical aspects and impacts of extraction.

6.21. One authority however, felt that current guidance is too simplistic and basic, and should also be updated to reflect more recent policy changes. It was suggested that NPPG4 should be brought in line with NPPG16, and that there is a need for the guidance to be more prescriptive, particularly in relation to the impacts/benefits of development. The Authority also notes that some annexes to PAN50 have been planned but have not yet emerged, leaving gaps in the good practice guidance series. More specifically, another authority felt that key omissions in operational guidance include guidelines relating to impacts on biodiversity, and in relation to small-scale extraction in coastal areas and riverbeds. As with locational issues, one authority felt that operational considerations were treated in too broad a way, relying on vague terminology such as "reconcile", "exceptional circumstances" "generally incompatible" etc.

6.22. One authority called for a stronger framework to be provided, similar to that in the MPG series for England and Wales. It was suggested that more public debate, similar to the opencast coal review, would be instructive in reaching a clearer view of the degree of protection for communities, landscape, nature conservation etc, that is sought by the community as a whole.

6.23. Several authorities felt that NPPG4 focuses too much on large scale proposals and their impacts, making it more difficult to determine more localised or detailed aspects of smaller scale applications. In particular, it is argued that mitigation measures often assume a level of resources which is not available to small operators and that advice on more cost effective measures would therefore be appreciated.

Planning and Pollution Control

6.24. SEPA stressed the importance of considering this aspect in more detail, particularly in paragraph 34 which focuses on the relationship between planning and pollution control. The Agency points out, for example, that the use of wetlands, settlement ponds, reedbeds etc. during the operation of the site may have significant implications for site layout and potentially phasing of development. These are crucial planning considerations, yet their function is primarily that of pollution control.

6.25. Planning and pollution control are required to work in tandem and SEPA suggest that NPPG4 could assist in this by (a) making greater reference to the issue of pollution and how it can be controlled and (b) clarifying the legitimate role of planning in enabling the incorporation of pollution control measures and the imperative upon LPAs to work closely with SEPA (as a statutory consultee) to plan such measures into sites and, where appropriate, restoration schemes. In particular, there are two main sources of concern: pollution arising from sites which have been abandoned without restoration or incomplete restoration, and pollution arising from the operation of active sites, typically caused by leakage from machinery, accidents or inadequate storage or operational procedures.

Adequacy of Guidance on Restoration, Aftercare and After-use

6.26. NPPG4 sets out recommendations on restoration, aftercare and after-use in paragraphs 42-47. It notes the importance of this aspect of the minerals planning process, and the role of the 'polluter pays principle'. Broad reference is also made to the likely types of restoration and potential for different types of after-use, and the importance during the application process, of the local authority, operator and landowner working together to decide on the intended site after-use.

6.27. Since NPPG4 was published, there have been numerous examples of good practice and innovation in restoration and aftercare. Some examples of this have already been highlighted in more recent planning advice (e.g. PAN60's examples of good practice in restoration). However, it was suggested that there may be scope for extending NPPG4 to make more explicit reference to the potential for achieving benefits for local communities and the environment through building on these examples of good practice.

6.28. NGO representatives argued that this aspect of the policy guidance should also focus on the use of conditions to realise opportunities for environmental enhancement. SNH suggested that more rigorous conditions for restoration and enhancement should be considered, whilst the Royal Society for the Protection of Birds (RSPB) suggested that links to the Local Biodiversity Action Plan (LBAP) should also be considered. The RSPB also argued that given resource constraints and a shortage of expertise, enforcement procedures and powers were unlikely to be strengthened and that greater emphasis should be placed on pre-application agreements. The NGO/statutory consultee group as a whole felt that the Environmental Certification of operators should be considered in this context, as there is considerable variation in the quality of operating conditions and aftercare. However, it was also agreed that such certification is not a substitute for other forms of regulation (e.g. planning agreements and the use of restoration bonds).

6.29. Supporting this argument, SEPA argued that whilst some Councils have promoted environmental enhancement through their development plans, many have not, and consequently opportunities may be being lost. As a result, the Agency contends that greater encouragement of local planning authorities to seek environmental enhancement through restoration would be a positive addition to the minerals planning framework. It is also emphasised that decisions on intended after-uses should be taken in partnership with appropriate agencies such as SEPA and SNH, and should not be confined only to the local planning authority, developer and landowner.

6.30. There are mixed views about the need for more guidance on restoration, aftercare and after-use. Whilst a number of authorities feel that NPPG4 and more recent associated advice provides enough guidance on the subject, each of these authorities also agree that a PAN on the topic would be useful.

6.31. One authority feels that there is some confusion in relation to appropriate forms of after-use, particularly regarding the use of old mineral workings for landfill purposes, given concerns associated with landfill gas migration, leachate and the associated sterilisation of land for other uses. Although policy on landfill is covered by NPPG10, it is felt that more guidance on this issue would be useful.

6.32. The use of planning conditions, financial bonds and legal agreements has proved a complex, but also critical part of the planning process.

6.33. Recent research commissioned by the Scottish Executive aimed to assess the use and effectiveness of planning agreements and their potential to deliver wider environmental, planning and transportation benefits 9. The research concluded that there is an overall trend towards the increasing use of planning agreements throughout Scotland, including to secure the restoration of land and landscaping. However, there is a significant variation in the use of planning agreements between different authorities across Scotland. Industry representatives feel that there is room for clarification of this issue within the minerals policy framework, particularly in terms of the policy position on bonds and conditions, and the legal basis for the implementation of restoration plans (including the use of Section 75 agreements).

6.34. This view is supported by many local authorities. For example, several argued that a major omission in NPPG4 relates to the use of restoration bonds under a Section 75 agreement. NPPG16 states, in paras. 36-37, that financial guarantees are an appropriate means for reassuring the local community of operators commitment and ability to restore sites properly and timeously. This does not mean that the full cost of restoration must be put on deposit at the outset, but that it should build up commensurate with the pattern of activity and extraction.

Example 6.5: The use of bonds for restoration, Fife and South Lanarkshire

Most local authorities in Scotland consider the use of bonds in relation to restoration and aftercare as a necessity, as opposed to an option. Recognising the complexities involved in securing bonds from operators for restoration, Fife Council has developed a collaborative approach to this process. Although planning plays a central role in ensuring the bond is agreed, the calculation of the amount of the bond, together with ongoing monitoring of the site and compliance with conditions is contracted out to consultant specialists. This allows accurate assessments to be made in terms of the adequacy of the bond, particularly in terms of potential defaults, and programming for phased release. The cost of the contract is met by the operator. This approach is viewed as efficient not only in terms of ensuring technical accuracy, but also as it has scope to free up planning officer time.

Whilst this approach is clearly a positive response to Council requirements for bonds, there are also examples which illustrate how the concept can be problematic, particularly in light of the lack of clear national guidance on the subject. In 1997, Russell Quarry Products disputed the lack of recognition by South Lanarkshire Council of a certificate of membership of the Sand and Gravel Association (SAGA) Restoration Guarantee Fund Limited as an acceptable alternative to securing a bond. As a result, they appealed against a condition attached to consent which was granted for an extension to Hyndford Quarry near Lanark. In his summary of the case, the Reporter noted that "It is a matter of fact that neither NPPG4 or PAN50 includes any reference to insurance or contract guarantee bonds, but the former does stress the importance of restoration to ensure that mineral workings do not leave a legacy of dereliction, and that the cost of restoration should be on the basis of the "polluter pays" principle. MPG7, at paragraph 86, does state that financial guarantees to ensure the reclamation of mineral sites should not normally be required, but that advice does not statutorily apply to Scotland, and the wording leaves it open to an interpretation that financial guarantees may be appropriate in certain circumstances" (P/PPA/380/24 decision letter, para 20). The appeal was dismissed.

KEY ISSUES
  • there is general agreement that there is a need to review the approach to protecting areas with environmental/landscape designations. In particular, the shift towards placing greater emphasis on the value of local or undesignated sites needs to be reflected.
  • further guidance on locational issues would also be welcomed in relation to proximity to residential areas, built heritage (both in terms of impacts on, and contributions to), and the protection of agricultural land.
  • the role of the public within the minerals planning process, and the influence of public perceptions on decisions is a key issue mirrored in wider debates about the future of land use planning.
  • generally there is sufficient policy and advice on more technical aspects of extraction and operational issues. However, NPPG16 has highlighted the ways in which such advice could be taken further and tailored to address specific issues arising from other types of extraction.
  • there is agreement that more advice on restoration, aftercare, and after-use is required. This should build on examples of good practice, and clarify procedures, particularly in terms of the use of financial bonds and planning agreements.

Page updated: Tuesday, March 28, 2006