Thursday, 29 September 2016

Appeal inspector grants consent for biogas plant at Higher Fraddon

The appeal decision into the two related planning applications for a biogas plant at Higher Fraddon has just been published.

The Inspector, Nick Fagan, has issued a planning permission for the site and consented the number of vehicle movements requested by the applicant (Greener for Life), though he has also strengthened some of the 21 conditions attached to the planning permission, as suggested by myself, the Parish Council and local residents.

I will try to summarise the overall ruling as best as I can, in which he showed some sympathy for local residents and the tone of his ruling was clearly critical of both Cornwall Council and Greener for Life.

The decision notes that I had “argued that because the tanks had not been built in the exact location and to the height of the approved plans in PA12/01700” and made the case that the development was unauthorised and no planning permission therefore existed “for the biogas plant as built.” The Inspector acknowledges we argued that little weight should be given to planning permission PA12/01700 and the associated non-material amendments (NMAs), but the Inspector took a different view. He has decreed that “permission PA12/01700 and the NMAs constitute the appellant’s fall-back position and as such are relevant material considerations that must be afforded significant weight.”

The Inspector did say that: “I have read the numerous objections from neighbouring residents and have considerable sympathy for these neighbours in terms of the way the biogas plant has adversely affected their living conditions, in part as a result of the NMAs.” But, in spite of this, he went on to say that “in view of the fact that PA12/01700 has been lawfully implemented I must assess these appeals by comparing the development as permitted, including the amendments in the NMAs, with what the appellant now proposes.”

Because of this, in considering Appeal A (PA15/O3073) which related to the regularisation of the site as built and reduction of the digester closest to residents, he focussed his attention on the height of the digester and came to the view that Appeal A should be allowed.

In terms of Appeal B (PA15/05220), which related to traffic movements, he was critical of the nature of the access road, stating: “I agree that the access road is manifestly unsuitable to accommodate any increase in HGV numbers due to its blind bends, narrow width and lack of any footway or central white line.”

But he went onto state that he needed to assess “whether the appeal proposal would lead to any increase above the number and type of movements that have already been permitted,” adding that “I am concerned to minimise the impacts of HGV traffic to the AD plant on residents living on the access road. But it would be unreasonable to impose a condition limiting such movements to less than that already permitted and implemented.”

He therefore decided that the 35 HGVs per week requested by the application were “less than in the implemented permission,” which “the Council saw fit in 2013 to grant permission for the NMA allowing this.” I fundamentally disagree with his ruling on this, as the first NMA was unworkable and should never have been agreed. I am not sure that the Inspector grasped the significance of the evidence relating to traffic movements presented at the hearing, and he came to the view that Appeal B should also be allowed.

The Inspector issued a single consent for the two appeals with a single set of 21 conditions. Those of particular interest to local residents are as follows:

Condition 14
The Inspector has detailed that: “The weekly number and types of vehicles visiting the AD Plant site shall not exceed the following: 35 Heavy Goods Vehicle movements, 7 Staff/Other Vehicle movements (Light Goods Vehicles) - Total number of movements per week for the Anaerobic Digester Plant: 42.” He also agreed that: “The operators shall keep contemporaneous records of all vehicles visiting the site and shall provide written details of such vehicle movements at the request of the LPA, in order to show compliance with this condition”

One addition he made was that: “The definition of Heavy Goods Vehicles shall be agreed between the applicant and the Local Planning Authority (LPA) by the appellant submitting to the LPA within one month of this decision a list of vehicles types (including dimensions) of this class that will service the plant.” He also stated that once these had been agreed, only such vehicles would be able to be used to “import material for the digesters and remove the digestate.”

I am very disappointed that he did not reduce the number of HGVs in this condition, as I do not believe that the plant would be able to operate with only seven non-HGV movements per week. Indeed, the Inspector himself noted that residents had provided “compelling evidence” that vehicle movements, particularly of smaller vehicles, were consistently are “in excess of those permitted;” but simply concluded that the Council could take enforcement action or allow more (smaller) vehicle movements.

Condition 15
The Inspector sided with local residents in terms of delivery times for the plant. He did not consider that Greener for Life should be able to undertake deliveries from 7am to 7pm, and imposed the following condition:

“During school term times, vehicles delivering to and from the site shall operate only between the hours of 9am to 3pm and 4.15pm to 6pm Monday to Friday and between 8am–1pm on Saturday. There shall be no deliveries on Sundays or Bank/Public Holidays. Outside of school term times, vehicles delivering to and from the site shall operate only between the hours of 9am to 6pm Monday to Friday and between 8am–1pm on Saturday. There shall be no deliveries on Sundays or Bank/Public Holidays.”

Condition 20
The Inspector agreed with the unitary authority that “within two months of the date of this permission” the operators had to submit a revised Odour Management Plan to the Council for approval, which had to include “covered storage on site for all imported material.” He further defined “covered storage” as meaning “all waste and biocrops imported by lorry shall be stored either inside the main reception building or that the outside storage bays where the biocrops are currently stored shall be roofed and walled via a scheme to be submitted as part of this revised Odour Management Plan.”

Other conditions
It is also the case that Greener for Life has much work to do in the coming few weeks. As well as agreeing the detail of HGVs entering the site with the Council (within one month) and submitting the Odour Management Plan within two months, Greener for Life will have to supply further information to meet three other conditions. These are as follows: (i) details of surface water drainage, (ii) the company’s vehicle management policy and (iii) the proposed scheme of planting; and must all be submitted within two months. It is also stated that the planting must be carried out within six months.

Costs ...
At the appeal, Greener for Life also attempted to persuade the Inspector that an award of costs be made against Cornwall Council, but failed. I will cover this in a separate blog entry.

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