Overlapping controls of the planning and environmental permitting regimes
By Rebecca Breen, Associate, and Ray Clarke, Consultant, Nabarro LLP
As clearly set out in an article in last month’s edition of Quarry Management, the implementation of the Mining Waste Directive in July 2009 has introduced significant changes to regulation in the minerals sector. This has brought sharply into focus the overlaps of the planning and permitting regimes. So are the regimes really complementary, as the Government suggests in its planning policy?
Which regime takes precedence?
Recent cases have highlighted the inconsistent approach taken by planning authorities (and the courts) with regard to the importance of pollution when considering applications for industrial sites. In the Hopkins Developments case (2007) it was held, consistent with planning policy, that the impact of air emissions is capable of being a material planning consideration, and that planning authorities are entitled to refuse to grant permission on amenity grounds because of those emissions. This would be the case even if the Environment Agency (EA) were to impose permit conditions restricting the level of these emissions. The judge stated that the planning authority’s role is not to be subservient to that of the EA. The case concerned dust but would also apply in relation to other amenity issues.
There are, therefore, going to be occasions when the different regimes give rise to a conflict. This leads to uncertainty for the operator in seeking to comply.
Permits for managing extractive waste
This problem has become even starker since the introduction in July of the Mining Waste Directive into UK law through the Environmental Permitting (England and Wales) Regulations 2009. Any sites where operators are ‘managing’ extractive waste will now need a permit. Permits are even required for those operators managing inert waste, which will include many quarries (although industry is actively lobbying on the application of the Regulations and the definition of inert waste). Management of waste includes temporary storage, movement and processing of that waste.
The EA has, therefore, recently issued a new Standard Rules Permit for the management of inert wastes and unpolluted soil resulting from the working of quarries and mines. The permit sets controls and monitoring requirements for dust and noise emissions (which will also be relevant in bespoke permits). This Standard Rules Permit is available on the EA website and is non-negotiable.
Relevant conditions in relation to emissions are:
- Fugitive emissions shall not cause pollution. This will not be breached if appropriate measures are taken to prevent, or where that is not practicable, to minimize those emissions.
- Emissions from waste-management activities shall be free from noise and vibration at levels likely to cause pollution outside the site, as perceived by an authorized officer of the Agency. There will be no breach of this condition if the operator has used appropriate measures to prevent, or where this is not practicable, to minimize the noise and vibration.
What the EA considers to be ‘appropriate measures’ will be based on forthcoming guidance, which will incorporate best available techniques (BAT). The interpretation of these ‘appropriate measures by the EA has been a source of complaint in other sectors because of the lack of certainty, due to the Agency’s tendency to adopt the perfection of hindsight. Mineral operators will, therefore, have to reassess their methods over time, for example, to respond to complaints.
Likely planning conditions
Planning conditions will, of course, still be set down for all quarries or other minerals sites, to allow the permission to go ahead. These conditions are likely to be similar to the following:
- The operator shall ensure that noise levels generated by the development shall not exceed [specified decibel levels] for weekday and weekend operations.
- No development shall take place until a noise and vibration management plan has been submitted to, and agreed in writing by, the mineral planning authority (MPA). The plan shall include: the type, duration, frequency and location of noise monitoring and reporting; the steps to be taken in the event that noise levels exceed the specified levels; and the steps to be taken in the event that complaints are made due to noise.
- No development shall take place until a scheme for the suppression and control of dust (including PM10 and PM2.5 particles) and the monitoring and recording of dust levels has been submitted to and approved in writing by the MPA. The scheme should include: the methods and frequency for monitoring and reporting to the MPA; a background dust-monitoring survey carried out for no less than six months prior to commencement of development; the measures to be taken to suppress and control dust; and the steps to be taken in the event that monitoring indicates further investigation is required.
The way forward?
It is clear, therefore, that both planning conditions and permit provisions may cover the same kinds of issues – most importantly in relation to the levels of noise and dust allowed to be emitted and the amount and kinds of monitoring which are imposed. Draft guidance indicates that the Agency would accept the planning permission monitoring requirements as satisfaction of permit requirements. However, other aspects of the conditions in a permit may be more onerous. Obviously, the more onerous conditions would apply. This may be particularly apparent on existing sites where the added regulatory burden may have substantial operational impacts. In certain circumstances, a bespoke permit may provide flexibility and operational cost benefits, which would outweigh the increased cost of the permit.
Final guidance as to how these regimes will interlink and what protocols will be in place between the planners and the Agency are still awaited. In the meantime, the best course of action is to engage the EA on the permit throughout the planning process. The EA is, of course, a statutory consultee for minerals sites. Therefore, if operators can get them on board at an early stage, the road may be less bumpy when it comes to applying for a permit.
For further information call Nabarro LLP on tel: (0114) 279 4000.