Carwyn decides not to revoke - full statement

This is Carwyn Jones's statement on the Hafod. More comment to follow:

Lawrence Isted
Chief Planning Officer
Wrexham County Borough
Lambpit Street
P O Box 1290
Wrexham
LL11 1WL
Adran yr Amgylchedd, Cynllunio a Chefn Gwlad
Department for Environment, Planning and Countryside

Eich cyf . Your ref:
Ein cyf . Our ref: A PP116 25 001
Dyddiad . Date: 15 November 2006

Dear Mr Isted

TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 100 AND 104
REQUEST FOR REVOCATION AND/OR DISCONTINUANCE ORDERS IN RESPECT OF PLANNING PERMISSION FOR THE INFILLING WITH DOMESTIC, COMMERCIAL AND INDUSTRIAL REFUSE ASSOCIATED WITH SITE CONTROL BUILDING AND ENGINEERING OPERATIONS (INCLUDING OFFICE, WEIGHBRIDGE LABORATORY, WHEELWASH AND GAS VENTING AND COLLECTION SYSTEM) AND ANCILLARY DEVELOPMENT AND RESTORATION TO AGRICULTURE AND AMENITY, OF HAFOD CLAYPIT, JOHNSTOWN, WREXHAM
PLANNING APPLICATION No. 6/18883

1. The Minister for Environment, Planning and Countryside has asked me to refer to several letters in which the National Assembly for Wales has been asked to revoke or discontinue the above planning permission.

2. The National Assembly’s power to make orders under Sections 100 and 104 of the Town and Country Planning Act 1990 has been delegated to the First Minister, who in turn delegated it to the Minister for Environment, Planning and Countryside and who has further delegated it to officials. Notwithstanding the delegation to officials, the Minister remains authorised to determine these requests by section 63(4) of the Government of Wales Act 1998.

Planning history

3. Planning application 6/18883 for the infilling of Hafod Quarry, Johnstown, Wrexham with domestic, commercial and industrial refuse was refused by Clwyd County Council but, after an inquiry, planning permission was granted by the Secretary of State for Wales, on appeal on 10 July 1995. In 1998 an application to extend the time period for the submission of reserved matters was approved. Part of the southwestern corner of the site was designated as a Site of Special Scientific Interest (SSSI) in July 2001 and then as a Special Area of Conservation (SAC) in December 2004.

4. The owners submitted an application to limit landfill to the areas not covered by those conservation designations and to revise the phasing and restoration of the site. The application was granted in August 2004 following an appeal to the National Assembly but that appeal decision was quashed in the High Court on the basis that the original application had not been valid.

5. The site operator began landfill operations on 23 August 2006. Your authority considered requests to revoke the permission granted in 1995 but decided, in September 2006, that while it would not revoke the permission it would – subject to confirmation by the National Assembly - modify it so that no infilling would be carried out in that area of the site subject to the conservation designations referred to in paragraph 3 above.

Revocation and discontinuance

6. Section 100 (read together with Section 97) of the Town and Country Planning Act 1990 provides that, if it appears to the National Assembly that it is expedient to revoke or modify any permission to develop land granted on an application made to a local planning authority or to the Assembly or granted by the Assembly on appeal, it may by order revoke or modify the permission to such extent as it considers expedient.

7. Section 104 (read together with Section 102) of the Town and Country Planning Act 1990 provides that if, having regard to the development plan and any other material considerations, it appears to the National Assembly that it is expedient in the interests of the proper planning of an area (including the interests of amenity)

(a) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or

(b) that any buildings or works should be altered or removed

it may, by order require the discontinuance of the use, or impose such conditions as may be specified in the order on the continuance of the use, or require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be. An order can also grant planning permission, subject to such conditions as are appropriate, for development of the land in question (thus allowing an appropriate alternative development to take place).

8. A planning permission may, in general, only be revoked or modified before it has been implemented. Where the permission is for building or other operations, it may be revoked or modified if it has been partially exercised, but revocation and modification orders cannot affect any development which has already been completed and cannot be made at all once the permitted operations are complete. Where the permission is for a change of use, an order cannot be made once that change has taken place. A discontinuance order would have to be made if it is thought appropriate for development to cease. It should be noted that whilst a discontinuance order can require the removal or alteration of buildings or works, there must be doubt as to whether the deposit of waste has constituted such operations and thus whether an order would be able to require the removal of waste already deposited. However, this question is subsidiary to the principal issue of whether it is appropriate to require the deposit to cease and thus arises only if the principal issue is determined in the affirmative. As the Assembly has been requested to make both revocation and discontinuance orders, it is appropriate now for it to consider both powers and whether it should exercise them.

Assembly’s policy on revocation and discontinuance

9. Judgement of planning proposals is primarily the responsibility of the local planning authority. The Minister notes that both the revocation and discontinuance powers are, in the 1990 Act, conferred initially on the local planning authority and supplemented by equivalent powers conferred on the Assembly. Moreover, an important principle of the planning system is that, in general, a permission, once granted, will enure permanently for the benefit of the land. The Welsh Assembly Government’s policy (set out at Planning Policy Wales paragraph 4.10) is that a revocation or discontinuance order will only be made if the planning permission (the original decision) is judged to be grossly wrong, so that damage would be done to the wider public interest. It is not considered an appropriate use of the power to make a revocation or discontinuance order on the basis that a different decision to the one made originally would result if the application were made today.

10. In considering the application of this policy to the planning consent in this case, examples of damage to the wider public interest which might justify the making of a revocation or discontinuance order include circumstances where:

• The development poses a very significant threat to an important wider planning objective, such as the protection of designated countryside or landscape, coastline, national heritage, or European or international obligations; or

 Issues of wider public safety or national security are at stake.

11. Where the development for which permission was granted complies with one or more policies in the development plan (and does not contravene any other development plan policies) it will be necessary to consider whether “other material considerations” support the case for revocation or discontinuance.

Basis of requests for revocation and/or discontinuance of the planning permission

12. The principal reasons, set out in correspondence, for requesting revocation of the 1995 permission are that landfill is now an unsustainable method of disposing of rubbish; that it was wrong to permit a landfill site so close to residential properties because of, for instance, smells and pollution; that the tip should not be used to take waste from as far away as Liverpool; and that the site is important in terms of environmental conservation.

Consideration of the requests

13. In considering the requests for revocation/discontinuance the Minister has had regard to all matters raised in the requests and the following advice and information:

The development plan

14. The Assembly’s Planning Division has indicated that the local planning authority’s Unitary Development Plan was adopted in February 2005 and supersedes all previous plans. The Wrexham UDP Proposals Map Plan 6 covers the Hafod Quarry site. Part of the site is also designated as an SAC. Policy EC6 says that

“Development either within or close to sites of biodiversity interest will only be permitted where it can be clearly demonstrated that the need for the development outweighs the need to safeguard the intrinsic nature conservation value of the site. Where such development is permitted damage should be kept to a minimum and compensatory measures should be provided. Measures to improve the biodiversity value of sites and enhance their natural conservation interest and landscape quality including the establishment of local nature reserves will be supported.”

15. There is also a waste management policy in the plan but no designation at Hafod. Policy MW12 indicates waste management facilities will be located having regard to a set of specified principles. Policy MW13 covering disposal allows disposal through landfilling of controlled wastes at sites with existing planning permission.

16. Your authority’s view about the development plan is that Policy MW13 allows landfilling at sites with planning permission but resists new proposals unless there is exceptional or specific need related to waste arising from within the County Borough. The Regional Waste Plan adopted by the Assembly (and supported by the Council) requires that 1.3 landfill sites be made available in the County Borough to aid regional sustainability in dealing with residual waste. In his report to your authority’s Planning Committee which met on 4 September 2006 the Planning Officer, Mr R Dewey concluded that “within a short time there will be no other active sites in the County Borough.”

The local authority’s consideration of the matter

17. Section 4.10 of Planning Policy Wales (PPW) indicates that the National Assembly has default powers in respect of making revocation and discontinuance orders. This means that the National Assembly can not only make an order on its own initiative but can also consider making an order when the local authority has been requested to do so and has either refused to consider the request or has considered the request but refused to make an order.

18. On 4 September 2006 your authority reviewed the existing 1995 planning permission for landfill at the quarry to consider modifying or revoking the permission. The operator, Mersey Waste Holdings Ltd (MWH), had made it clear that, although it did not intend to landfill on the part of the site which is now designated as an SAC, it would not voluntarily give up that part of the permission. The company suggested that the permission should be modified to prevent tipping there and to amend the phasing and restoration scheme. Your authority concluded that the making of a revocation order would present substantial difficulties but that there were no planning reasons to oppose the development of the site outside of the SAC. Your authority also concluded that a modification order (which would need to be confirmed by the Assembly before it could take effect) could modify the grant of permission to exclude the SAC and to impose a revised phasing and restoration scheme. The Minister is not here considering the merits of a modification order, but has noted in the context of his current determination the local planning authority’s view that a revocation or discontinuance order would not be necessary to deal satisfactorily with the matters of concern it had identified.

Waste

19. The Assembly’s Environment Protection and Quality Division (EPQD) has advised that there is no justification for the planning permission to be revoked or discontinued. Although Article 5(2) of the Waste Framework Directive requires that:

"The network [of waste disposal installations] must also enable waste to be disposed of in one of the nearest appropriate installations..."

(this is known as the "Proximity Principle"), stopping a landfill site in Wales taking waste from a nearby English authority would be inappropriate and would be a decision which could be subject to successful judicial review. There are many examples of wastes being transported for landfill across local authority, regional and National (UK) boundaries. Material flow studies show that more waste leaves NW Wales for disposal in England than the other way round, albeit largely commercial and industrial wastes rather than household waste. There is a lack of hazardous waste landfill sites in Wales, and the vast majority of that type of waste is exported.

20. EPQD have advised that the Hafod Quarry landfill site is a licensed, permitted landfill. MWH is complying with all relevant legislation and the proximity principle.

Conservation

21. The Countryside Council for Wales (CCW) has already advised your authority that there are three options to consider in respect of identifying potential adverse effects arising from the landfill permission at Hafod. The advice given to your authority may be summarised as follows:-

22. The first option involves landfill within the SAC. CCW considers that landfill within the SAC would have a permanent adverse effect on the SAC site’s integrity. The population of great-crested newts would be adversely affected, by destruction of terrestrial and aquatic habitats that are used by the newts and are essential to maintaining population levels.

23. The second option involves allowing landfill operations to continue outside the SAC. The CCW advised your authority that, with appropriate conditions, as detailed in the Council’s proposed permission modification and the Pollution Prevention and Control Regulations licence (PPC), the activities and associated effects of landfill outside the SAC would not have an adverse effect on the SAC site’s integrity and populations of great-crested newts within it. CCW based these conclusions on the assessments completed by the Environment Agency when they considered the PPC licence. Their appropriate assessment for the Johnstown Newt Sites addressed the potential indirect effects of the proposed landfill and concluded there would be no adverse effects on the SAC or great-crested newt population.

24. The third option involves no landfill. This would be the consequence of making revocation and/or discontinuance orders. The CCW advise that not proceeding with landfill within or adjacent to the SAC would mean there were no adverse effects on the SAC site’s integrity or great-crested newts within it.

25. The CCW’s advice on the three options was expressed to your authority and was used to inform your decision making process. The CCW has also confirmed to the Assembly Government that they advised on and concurred with the conclusions of their Appropriate Assessments in respect of landfill. Furthermore, the recently received great-crested newt monitoring report completed by North East Wales Wildlife for MWH as part of the Integrated Pollution Prevention and Control (IPPC) Directive consent has been considered by CCW, who confirm that they concur with the findings of the report.

26. In conclusion, the CCW’s advice is that your authority’s proposed modification order overcomes all outstanding conservation objections. The appropriateness of any proposed modification order is not a matter for consideration by the Assembly Government at this time: however, the Minister notes in the present context that CCW do not consider that a revocation or discontinuance order is necessary to address their concerns.

27. The Assembly’s Deputy Environmental Science Adviser (DESA) has assessed the request for revocation and discontinuance against environmental considerations and has reached the same conclusion as the CCW. DESA advises that a key consideration is whether the continuance of the permission would impact on the designated site. Continuation of the current landfill permission would result in an estimated loss of 4.3 ha of designated habitat, which would place the Assembly Government in potential infraction of the EC Habitats Directive.

28. Revocation and/or discontinuance of the landfill permission would prevent significant adverse effects within the SAC. However, the data suggests that a modification to the planning permission to exclude activity from the designated area, coupled with planning conditions (i.e. restoration proposals and location of bunds), would be sufficient to prevent significant adverse effects and might be advantageous to the population of great crested newts.

29. On this basis, DESA not only agrees with your authority’s decision to issue a modification order but does not support the making of a revocation or discontinuance order by the Assembly. In the context of the current determination, the Assembly Government is not considering whether a modification order would be appropriate, but it has taken into account DESA’s view that a revocation or discontinuance order is not necessary.

Waste planning

30. The Assembly Government’s Planning Division considers that there are two main issues to be considered in relation to the requests for revocation/discontinuance of the landfill consent.

31. Firstly, Planning Policy Wales (PPW) and Technical Advice Note 21 “Waste” [TAN 21] provide guidance on waste planning. PPW states that local planning authorities are obliged by the EC Waste Directives to make provision for establishing an integrated and adequate network of waste disposal facilities and that sufficient facilities need to be provided to treat, manage or dispose of all the waste produced. The Regional Waste Plans have been developed in line with these principles. TAN 21 states that:

‘it is acknowledged that landfill will continue to be a disposal option for some time until alternative facilities are established’.

Disposal of waste to landfill will therefore need to continue for some years albeit at reducing volumes as recycling rates continue to increase.

32. Secondly, waste streams have always moved across boundaries. It would only be in exceptional circumstances that planning conditions would control the origin of the waste stream in determining planning permission for waste facilities. The origin of the waste is not normally therefore an issue for waste planning to control.

Amenity

33. The Assembly's Planning Division has indicated that when planning consent was given for the development in 1995, the Inspector considered the effect of the landfill on local amenity. This included the effect of noise, dust, litter, birds and vermin. The Inspector concluded that the development would have an impact but that the impact would not be unacceptable. There are no obvious changes in circumstances to lead the Division to conclude that a determination of the application now would lead to a different conclusion. Furthermore, the day to day monitoring, control and enforcement of landfill operations by the Environment Agency are controlled more stringently than hitherto.

Minister’s conclusions

34. The Minister is aware, from the large number of requests he has received seeking revocation or discontinuance of the 1995 planning permission and the campaign mounted by action groups, of the strength of feeling against the infilling of Hafod Quarry with domestic, commercial and industrial refuse. However, no evidence has been put before him to lead him to the conclusion that the planning permission granted in 1995 was grossly wrong, resulting in damage to the wider public interest which would justify the making of a revocation or discontinuance order.

35. The Minister has carefully considered the reasons forwarded for revocation and discontinuance orders being made, including those identified in paragraph 12 above, and weighed them against the advice and information provided above. He acknowledges the concerns of opponents to the infilling of Hafod Quarry with refuse but takes the view that they are not such as to outweigh the reasons provided in that advice and information for not making a revocation or discontinuance order.

36. In making his determination the Minister has considered only whether it is appropriate to make a revocation or discontinuance order in relation to the 1995 permission. He notes that your authority has indicated their intention to make an order modifying the 1995 permission so as to protect that part of the Quarry designated as an SSSI and SAC. Such an order will require confirmation by the National Assembly. If, however, your authority does not make such an order, the Minister would intend to consider in due course whether it would be appropriate for the National Assembly to make one.

Formal decision

37. For the reasons given above, and in exercise of the powers referred to in paragraph 2 above, the Minister for Environment, Planning and Countryside has decided to refuse the requests for him to make revocation and discontinuance orders in respect of the planning permission granted by the Secretary of State for Wales on 10 July 1995 and referred to in paragraph 3 above.

38. Copies of this decision letter have been sent to Karen Sinclair AM, Janet Ryder AM, John Marek AM, Nicholas Bourne AM, Lord Dafydd Elis-Thomas AM, Mark Isherwood AM, Eleanor Burnham AM, Martyn Jones MP, and certain other interested parties.

Yours sincerely

BOB EVANS
Head of Planning 1 Branch