Comments on Judicial Review – 2008/9

In August 2008, North Yorkshire County Council approved Tarmac’s application to quarry Ladybridge East for the second time.

In a Judicial Review, it cannot be argued that a decision should be quashed because it was wrong, but rather that it was made in a manner which was improper or flawed. The claimant’s concern was with what evidence was brought into the decision making process – and what was withheld or not shown. Another grave concern was, and remains that, for as long as Tarmac quarried the setting of the Thornborough Henges, the company would continue to interfere with legitimate efforts to raise the profile of the surviving prehistoric landscape and that the County Council was not attaching due attention and diligence to the unique heritage of the Swale/Ure area.

Following the collapse of the NYCC’s Minerals and Waste Development Framework (MWDF) later in 2008, we sought information from the County Council, part of which was Landscape Character Assessments (LCAs) for the Preferred Areas. These were at serious odds with the advice in the Officers Report to the Planning Committee and Tarmac’s Environmental Statement. These were dated 07 and cost the County Council £19,500. The County Council is saying that these assessments are not material because they were produced for a MWDF which was abandoned and has not undergone inspection, however R (on the application of Kides) v South Cambridgeshire District Council and others, 9 October, 2002 (Court of Appeal). Paragraph 121 indicates otherwise: - "material considerations" ‘In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.’ Although the assessments were brief and not designed for the purpose of determining applications, they are nonetheless unbiased expert opinion which were used to bolster the County Councils case to refuse a permission.

To summarise our Concerns;
County Council Officers inferred that:

The Officers Report to the North Yorkshire County Council Planning and Regulatory Functions Committee dated the 26th of August 2008 C2/06/01616/CCC – Full Planning Application accompanied by an Environmental Statement for the extraction of sand and gravel and modification of Condition 2 of Planning Permission Ref: C2/92/500/53, Ladybridge Farm, Thornborough for Tarmac Northern Ltd (Hambleton Division) included several erroneous conclusions.

For years now there have been concerns regarding the cumulative effects on the landscape, both from individuals, organisations and Statutory Consultees, the Officers Report stated: -
6.10 The Countryside Agency – raises no objection in principle but has great concerns regarding the change to landscape character……’
9.18 A number of consultees have expressed concern with regard to the impact of the workings and proposed wet restoration scheme on the landscape. Mineral working has taken place in the vicinity of Nosterfield for a number of years and has led to a patchwork of restored sites’.

The Report downplayed the character of the Landscape: -
9.20 ‘The landscape of Ladybridge Farm and the surrounding area remains an agricultural landscape of large open fields. The area does not benefit from any national or local landscape designation, but was within the area defined in the Hambleton District Local Plan (adopted in 1999) as being an area of ‘landscape enhancement’ where it was considered that development can be used to bring about improvements to the landscape. However, the Policy relating to this designation (Policy L11) was not ‘saved’ under the Direction from the Secretary of State in September 2007. The applicant contends that as a result of mineral working at Ladybridge Farm, improvements can be made through the implementation of appropriate, high quality restoration schemes’.

This assessment of quarrying at Thornborough was at odds with the (LCAs) for the area which show negative cumulative effects: - ‘Large areas of permanent standing water are out of character with the current landscape. Other quarries have been worked in the past to the SW of Nosterfield, further affecting local village setting and setting of Thornborough Henges’.

The (LCAs) and unambiguous written observations from English Heritage show that: -

Officers overplayed current restorations by stating in the report at paragraph 9.21 that the present quarry is designated as a Nature Reserve when it is not.

The Officers Report, at 9.23 it says that Hambleton has not complained about the effects of the proposal, but Hambleton hadn’t seen the LCAs. The character is agricultural; the LCAs say this, as do the Hambleton Planning documents.

The Defra report was dated 2006 which had the 2004 one attached to it. It advised that the loss of high grade land was not important in national terms. Since then the global situation has changed, a matter which the Regional Spatial Strategy (May 2008) advised to take that into consideration.

A senior representative of English Heritage, when hearing of the LCAs, said ‘Bearing in mind the controversial nature of the application, one would have expected the MPA to use the LCAs as evidence’.

If numerous objectors and Statutory Consultees had expressed concerns, as the report shows, one would have expected Officers to have left no stone unturned to find the evidence upon which they founded their claims, but instead of producing the evidence they chose not to.

There were many matters that could have been used to challenge the decision: setting, scale, landscape, biodiversity issues, cumulative effects, loss of agricultural land, Parish Plans not taken into account etc.

In the event it was decided: -
Ground 1: The extension was not ‘small scale’ under Minerals Planning Policy 3/4: -
“Outside preferred areas and areas of search, planning permission for aggregate mineral working will normally only be granted for borrow pits and small-scale extensions to existing sites.”
 
Ground 2: Setting
 
Ground 3: The Bird Management Strategy
 
Ground 4: The Environmental Statement. The June 2008 environmental statement was deficient in failing to include a Bird Management Strategy, and the Officers Report and subsequent decision of the planning Committee of 26 August were consequently legally flawed.

Ground 1: Minerals Planning Policy 3/4

Reflecting that, Policy 3/4 is as follows:
“Outside preferred areas and areas of search, planning permission for aggregate mineral working will normally only be granted for borrow pits and small-scale extensions to existing sites.”

The matter of what constitutes a small scale extension in geographical extent has not been properly resolved. To clarify the meaning of ‘small scale’, the criteria referred to by the Inspector in examining the policy are mineral quantity, working life, annual production and the geographical extent and scale in relation to the existing quarry area.

It is of great concern that the tonnage per hectare is very poor at Ladybridge and this is apparently not a consideration within the policy.

Like FoTH and the CBA, English Heritage expressed concerns: - ‘Whilst we continue to have reservations about the application site representing a small scale extension to the existing works we are content to leave clarification of this matter to the Mineral Planning Authority in line with relevant policy’.

FoTH maintains that a 33% extension to a 9 hectare site may be de minimis, but for instance a 33% extension of 200 hectares cannot be.

At Ladybridge the Officer Report advises: - ‘Geographical extent – the extended quarry area, that is the land take, equates to 33.6ha (31.7%) of the original 106 hectare permission’.

At the Judicial Review Ripon City Quarry was chosen as a precedent: - 'The Council’s decision is inconsistent with, and takes no account of, its decision on the Ripon City Quarry that an increase in extraction area of 17.2 hectares (35% of site area) for 850,000 tonnes of minerals was not a small scale extension. This was based on legal advice (11th June 2002 committee report, para 6.2.6). We have seen the legal advice (dated 22nd May 2002) which says that the Ripon City Quarry increase is not ‘on any reasonable interpretation of the criteria cited in the Local Plan “small scale”’. The Council’s legal advice was therefore that such an increase could not be lawfully regarded as small scale'.<br>
    ‘The [Officer] report failed to refer to the Friends’ representations on the Ripon decision, let alone enable councillors to evaluate the point’.

Further to that point, in the Brotherton Quarry decision in 2005 where a 10 hectare extension to a 42 hectare existing quarry was being sought was being sought, County Council Officers decided that ‘Due to the individual nature of mineral working, the Plan does not quantify the term "small scale" but indicates that proposals will be assessed against the criteria of mineral quantity, working life, annual production and geographical extent and scale in relation to the existing quarry area’. And ‘In my opinion these are material considerations which could justify the grant of permission, notwithstanding the scale of the proposal which, in my view, is marginal in terms of whether it may be considered to represent a small scale extension’. It is clear that on the matter of geographical extent alone those Officers did not think that 25% was ‘small scale’ regardless of the other factors.

If a 25% extension was considered marginal, the Ladybridge 32% is clearly 25% over that margin.

Part of the CC’s reasoning is that ‘To interpret Policy 3/4 otherwise would exclude all large quarries such as Nosterfield from consideration under Policy 3/4 thus restricting the flexibility that this Policy seeks to provide for all sites to have proportionate small scale extensions in appropriate circumstances’. Denying smaller quarry operators the opportunity to take a larger share of the market must be anti-competitive.

Ground 2: Setting

Our concern is exemplified in this expert planning and archaeological opinion from 2005: -
2.3.20 ‘Past destruction has been lamentable – including part of the central cursus, the remains at Nosterfield Quarry, and ploughing – but it is clearly within the powers of the planning authority to take these cumulative impacts into account on the current application, as the application will further contribute to the destruction of important archaeological remains if approved and damage the setting of nationally important remains on the Thornborough plain’.

In August 09 Hickinbottom J based his Judgement that the ground 2 failed was based on false premises.

Permission to Appeal was refused by Sullivan LJ in November 2009 partly on the grounds that ‘there appears to have been no particularised suggestion that there would have been any other significant impact on the visual setting of the henges: e.g. “from point X on a footpath point Y of the henges would be adversely affected because the extended workings would also be in view”’ That summing up is wrong; it is based on Hickinbottom J’s Judgment of August 09 which was flawed (paragraphs 87-100). Hickinbottom J based his Judgement on the false premise that FoTH had not claimed expert opinion showing detrimental effects on the setting of the monuments; he wrote ‘The Friends contended that the impact of the extension on the setting for the henges was significant, on essentially “non-visual” grounds (see their representations of 0 July 2008, paragraph 2). However, that was an assertion that was misdirected (in that setting is a visual concept) and, perhaps for that reason, unsupported by any professional evidence’. FoTH always repeat expert opinion, as we did in the document to which he referred (which he clearly did not read properly). Many have commented, including Tanfield Parish Councilors, on the adverse impact on the setting of the henges when viewed from Well Bank, as have FoTH: Tarmac’s own Application shows that the impact on the landscape from that viewpoint will be ‘moderate to substantial’ - which must be ‘significant’. In his Judgement Hickinbottom J wrote ‘Therefore, all of the expert evidence was to the effect that the impact of the extension on the setting of the henges was not significant’.

Hickinbottom J correctly states that there is no statutory definition of ‘setting’, and clearly acknowledges that the approach adopted by PPG15 (in relation to listed buildings) is transferable to the setting of archaeological remains by stating the purely visual approach to setting of ancient monuments is supported by another High Court case: Revival Properties v Secretary of State [1996]. But such a conclusion is not warranted by that case (or any other case): the Revival decision was not concerned with defining all that ‘setting’ could be but that the extent (legally speaking) of setting in visual terms was wide to encompass that of the monument in question. However, if the revival precedent (PP15) was to be transferred to monuments and remains, then PPG15 offers much advice on the desirably of preserving certain features within the setting of, although not visible from the Listed Building.

One needs to look no further than PPG16 to see that policy makers have had more in mind than the purely visual when formulating archaeological policy. Paragraph 8 of PPG16 refers to the setting of archaeological remains, and is in fact in the part of the PPG dealing with the importance of archaeology. This is a term which is distinguished in the PPG from ‘monuments’ (especially ‘upstanding’ monuments, to which the PPG refers at paragraph 5); in the 1979 Act remains is defined to include ‘any trace or sign of the previous existence of the thing in question’. It would be difficult to conjure up a more abstract or all-encompassing definition than that. The point is that remains are not the same as a monument and errors are likely if, in planning cases with an archaeological element, one applies the concept of monument to setting when PPG16 is clearly aimed at something more comprehensive, namely ‘remains’. The concept of remains goes much wider than that of ‘monument’ and includes archaeology such as the henges, barrows/tumulae, and buried archaeological features such as those on the application site. How can remains which are buried have a setting in visual terms? They cannot and if PPG16 is to make sense setting must include more than visual considerations.

Below we have copied Hickinbottom J’s Judgement and highlighted sections for comment in yellow, and commented in blue font. He refers to Stephen Timms’ Witness Statement which is copied and treated in the same way below the Judgement.

Because of the errors in the Judgement it is noteworthy that ickinbottom J agreed to foreshorten the time he initially envisaged he would take over his deliberations in order to lessen the ‘pain and suffering’ claimed by Tarmac.

Case No: CO/1272/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
 
Date: 24 August 2009

Before :
 
MR JUSTICE HICKINBOTTOM
 
Between :
 

The Queen on the application of Kimberley Miller

Claimant

- and -

 

North Yorkshire County Council

Defendant

Tarmac Limited

Interested Party

Richard Harwood and James Burton of Counsel (instructed by Richard Buxton))
for the Claimant
Frances Patterson QC (instructed by North Yorkshire Legal & Democratic Services)
for the Defendant
Jeremy Cahill QC and Richard Kimblin of Counsel (instructed by Eversheds)
for the Interested Party
 
Hearing dates: 17-19 August 2009

Approved Judgment

Ground 2: Setting

87. Whilst not the focus of the main debates before me, the Claimant and other Friends of Thornborough Henges have a particular interest in this ground, as it concerns the henges and their setting.

88. Planning Policy Guidance Note 16: Archaeology and Planning (November 1990) states, in paragraph 18 that:
“The desirability of preserving an ancient monument and its setting is a material consideration in determining planning applications…”

Paragraph 27 continues:
“Where nationally important archaeological remains…and their settings are affected by proposed development they should be a presumption in favour of their physical preservation i.e. a presumption against proposals which would involve significant alteration or cause damage, or would have a significant impact on the setting of the visible remains.” (emphasis added)

89. There is no definition of “setting” in this context, but it was common ground before me that it is a matter of judgment to be determined in visual terms, with regard being had to (i) the view from the monument towards the development ii) the view from the development towards the monument and (iii) any other relevant view which includes both the monument and the development (an approach adopted in Revival Properties Ltd v Secretary of State for the Environment [1996] JPL B86). In other words, the setting of a monument has to be considered “in-the-round”’. The matter of non visual setting was not contested; the matter was that the Members of the Planning Committee were not advised that they needed to take an overview of the whole site.

91. Mr Harwood submitted that the report failed correctly to advise the Planning Committee to consider setting in-the-round - it restricted itself to views from the henges - and the suggestion was that both English Heritage and the Council’s own Countryside Service Heritage Section considered there to be no effect “as” (i.e. because and only because) the site would not be visible from the henges at ground level. That, he submitted, would have led the Committee to leave out of account consideration of views from the site to the henges, or of both site and the henges from elsewhere, all of which were material to setting. English Heritage did not refer to inter-visibility in its letter dated 1st July 08. Of interest, regarding the ‘scale’ of the extension, EH express concerns twice in the letter.

93. First, the extract above from paragraph 10.14 of the POR must be seen in its proper context. Tarmac carried out a comprehensive assessment of setting, the results of which were set out in the June 2008 environmental statement (at paragraphs IV.133 and following). The extensive field work was supplemented by a computer-based exercise, the results of which were set out in the report of Mike Griffiths and Associates Ltd, expert archaeological assessors retained by Tarmac. That assessment did expressly consider, in some detail, (i) views out from the monument towards the site, (ii) views out from the site towards the monument and (iii) views from the side including the monument and site. The Environmental Statement does not state this. Those results are summarised in the environmental statement, which concludes (at paragraphs IV.137 and IV.140) that:

“… there will be a negligible impact on the setting of the schedule of ancient monuments on Thornborough Moor… The revised application will therefore not have a significant impact on the setting of the Thornborough Henges or other scheduled monuments and listed buildings in the area”.

94. Second, Mr Bob Sydes (of the Council’s Heritage Section) also considered that there would be no significant impact. In his memorandum dated 7 December 2006, he indicated that the Friends of Thornborough Henges’ objections on setting grounds were misconceived, because they relied upon non-visual matters and setting was a visual concept. Sydes memo 7 Dec 08: - Archaeological Setting. ‘The Friends of Thornborough object on the grounds that the application area falls within the "non-visual" setting of archaeological remains of national importance. In planning terms setting is a visual concept, although in archaeological terms, buried remains can and do form part of the setting of a landscape, although this is not yet recognised in planning case law’. It is recognised in the various conservation plans, Draft PPS15 , PPG15 and EH advice. He considered there was any adverse impact of the development on the henges’ setting was “insufficiently significant or adverse to warrant refusal of permission”, and that there were “no archaeological grounds for refusing this application”. Setting was also raised with Mr Sydes at the 29 August 2008 Committee Meeting, where he said that, although the impact “can be seen as significant”, it was his opinion that it was not significant. Which is it then? His view (that any impact on setting was not significant) accorded with that of English Heritage, a statutory consultee. Mr Stephen Timms (an archaeologist with Mike Griffiths and Associates, who had performed the assessment to which I have referred) was also of the view that there was no significant impact. Therefore, all of the expert evidence was to the effect that the impact of the extension on the setting of the henges was not significant. Dr Harding is considered a ‘specialist’ by the County Council: - News Communications Unit, County Hall, Northallerton www.northyorks.gov.uk Henges conservation plan for public consultation
‘The group consists of landowners, representatives from local parish councils and interest groups, including the Friends of Thornborough, as well as representatives from national organisations such as English Heritage and specialists such as Dr Jan Harding from Newcastle University’.
The Yorkshire Archaeological Trust and the council for British ArchaeologyAT and the CBA are specialists too, particularly the former who are listed as government consultees, they disagree. An assessment of the cumulative effects was not made, but this is a requirement under MPS2 and EIA – an addition of 25ha of water to the 70ha or so adjacent, is cumulative, significant and negative – as evidenced by other consultees and Landscape Character Assessments commissioned for the County Council’s Minerals and Waste Development Framework.

95. Third, the Planning Committee members would have had their own knowledge of the area.

A Member of the Planning Committee when contacted later said that Members were not taken to a point where they could take an appropriate overview of the setting of the monuments.

Yes, members had knowledge, but it was one sided and had been spoon fed over the years. In a letter to the CPRE the NYCC’s head of planning said that ‘Indeed the Members of the Planning Committee were very impressed when they undertook a site visit to both Marfield and Nosterfield during the summer and met field personnel’.

Further the Member contacted remembered clearly having the benefits of shallow water impressed upon him, therefore he expected that to be a key element of the restoration on: - 2008 Application, The Restored Site – Habitat Distribution ES II.61. The proposed habitat distribution on final restoration is shown on Drawing LO93016-D. The predominant restoration land use would be open water of varying depths with particular emphasis on the development of shallows,

When asked to comment on the lack of interest in an archaeological conference on the henges organised by the Council for British Archaeology, County Council leader John Weighell, (on the general question of the conference being attended by members who would be called on to make important decisions), said: "If they are briefed too much, members like those on the planning committee could put themselves in the position of having to declare an interest under the rules by which we have to operate today."
In addition, at the Committee meeting, they were shown photographs to put the discussion at that meeting in context. The Planning Committee was not shown a photograph of an appropriate overview. At the meeting, the Committee members were told in terms that, “It is almost impossible to see the henges from the quarry or vice versa” (Stephen Timms First Statement, 21 February 2009, paragraph 22). Here Timms refers to assessments in the 2005 Application which were not before the Committee in 08. Furthermore, Mr Sydes expressly told the meeting that he agreed with Mr Timms’ assessment, which was based upon all relevant views. That advice was given of a full and proper appreciation and interpretation of setting. It was not pointed out that areas out of sight of monuments can be part of setting and that a view from the side showing the hidden area is part of the consideration of setting. (See comments on Timms’ statement immediately below regarding being shown an inappropriate image)

96. Of course, lay persons can have an opinion on setting. Agreed, that is part of landscape assessment. The Friends contended that the impact of the extension on the setting for the henges was significant, on essentially “non-visual” grounds (see their representations of 20 July 2008, paragraph 2). FoTH did not say that, see note 6 and 7 of FoTH’s representations referred to. However, that was an assertion that was misdirected (in that setting is a visual concept) Setting is not only a visual concept, it is none visual too. See letter from Steven Bee (link to letter?), the concept adopted in PPG15, Hadrians Wall plan and now made clearer in Draft PPS15. and, perhaps for that reason, unsupported by any professional evidence. FoTH refers to professional evidence where it comes to archaeological and landscape matters. Although others had made representations on landscape context (the Council for British Archaeology, the Yorkshire Archaeological Society, Heritage Action, a Senior Lecturer in Archaeology and several individuals), the Claimant does not suggest that any of this amounts to professional evidence as to setting in the relevant sense. Yes we do, See note 6 and7 of FoTH’s representations. Harding is acknowledged by the CC as being a ‘specialist’. Because setting is a visual concept, particular views have to be considered. That is exactly what the professional advice obtained did. The professional advice in the Landscape Character Assessments referred to above observed detrimental and cumulative effects. In the event, there was no professional advice that the impact on setting would be significant: all such advice was that it would not be significant. Landscape Character Assessments showed ‘high negative’; the Countryside Agency complains of ‘a sea of lakes split by roads’.

97. There had been an earlier concern, in relation to the refused 2004 Application, that the setting of the henges would be affected: but that concern was alleviated by a restriction on the extent of the site in the 2006 Application. English Heritage referred to the setting of the henges in the earlier more extensive Application, but curiously did not refer to ‘setting’ in the 2008 one. It is unclear as to whether or not it has a remit to comment on setting at some distance from Scheduled Ancient Monuments, if that is the case then the matter should have been down to the County Council’s own expertise (and the advice it had in the form of Landscape Character Assessments).

Paragraph 10.14 has to be read in context: in the light of the fact that the Committee would have been aware of that earlier concern.

99. But, in any event, even if, contrary to my firm view, the Committee did not consider the issue on the correct legal test, on the basis of the evidence before it, I am confident that its decision could not sensibly have been different. In relation to setting, at the 26 August 2008 meeting, the Planning Committee had before it all relevant evidence. There was no professional advice that the development would have any significant impact on the setting of the henges. That advice was based upon consideration of all relevant views. It was tested at the Committee meeting. The Friends’ representations were wrongly focussed. Even now, the Claimant has not put forward any compelling evidence that setting would be significantly affected by the development: nor any particularised submission to that effect. Again this proves he did not read the documents, otherwise he could not have written this.

100. For those reasons, Ground 2 fails.

IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
CASE NUMBER:CO/1272/2009

Between Kimberley Millar and North Yorkshire County Council
 
Interested party Tarmac Ltd
 
FIRST WITNESS STATEMENT OF STEPHEN ALAN TIMMS
 
21 February 2009
 
I, Stephen Alan Timms will say as follows:

  1. I am an archaeologist employed by the firm of Mike Griffith and Associates Ltd and retained by the interested Party in these proceedings ("Tarmac") to advise it on the archaeological aspects of its application to extend mineral workings at the Nosterfield quarry into the neighbouring Ladybridge Farm site which is the subject of this judicial Review challenge.
  2. I held a Bachelor of Arts degree in Archaeology from the University of York and have worked as a professional archaeologist since 1992 for a number of organisations in Eastern and Northern England.
  3. Since 2004 I have worked as an archaeological consultant for Mike Griffiths and Associates Ltd providing professional advice to clients throughout the country in matters of planning and archaeology. I am now Director of Archaeology at that firm.
  4. Mike Griffiths and Associates Ltd has been engaged by Tarmac to manage the archaeology at Nosterfield Quarry since 1995. I have been directly involved with the archaeology at Nosterfield quarry since 1998. After 2004, when I joined Mike Griffiths Associates Ltd I was engaged by Tarmac to oversee the archaeological evaluation of the Ladybridge Farm site. I have personally undertaken the necessary analysis and reporting to provide archaeological information for the Environmental Statement which supported the planning application to extend Ladybridge Farm - which is the subject of these proceedings.
  5. I am asked to give this witness statement in response to the Statement of Facts and Grounds flied on behalf of the Claimant ("Ms Miller"). Except where I have stated otherwise the facts to which I refer are within my own knowledge and belief. Where the facts are not within my own knowledge I have stated the source of my information and believe them to be true.
  6. I refer to the witness statement of Malcolm Stephen Ratcliff which responds in detail to the first ground of claim. As the archaeologist responsible for investigating the historic setting of Thornborough Henges in the context of the Ladybridge Farm site application, I am asked to respond to the allegations made by Ms Miller under the second ground relating to the impact of the proposed extension on the setting of Thornborough Henges. In making my comments I shall adopt the definitions used by. Malcolm Ratcliff in his Statement.     It isn’t clear in the 2005 assessment that he is the one ‘responsible’.

    Ground 2- That NYCC made an error of law and failed to have regard to material considerations by construing the settling of the Thornborough Henges as solely concerned with views from the Henges rather than including views from the application site to the Henges and the views of the quarry and the Henges

     

  7. The complaint made on behalf of Ms Miller is that, in reaching its conclusion about the impact of the Ladybridge Farm extension on the setting of Thornborough Henges, the planning committee failed to have regard of the opposite view i.e. from Ladybridge Farm to the Henges and of views to the side of each location. That was not the complaint; it was that the assessment failed to take into account relevant views of the whole site - landscape, monuments and the application site itself from vantage points where the negative effects could be seen clearly.     It should have said other relevant views. See also paragraph 10.
  8. In the context of Ms Miller’s complaint about NYCC's approach to setting, it is important to appreciate there is, in fact, no specific definition of setting. Clearly the visual impact which any development might have on a scheduled monument is relevant to its "setting” - and, as I set out below, this is a material consideration under the current planning guidance - Planning Policy Guidance 16 ("PPG16"). Beyond that individuals and statutory bodies have at various times and in various contexts sought to include other concepts in the definition - such as presumed relationships, views from the air and the intentions of the builders of a monument. Indeed In 2008 English Heritage published a statement on "setting" as It relates to sites in Conservation Principles Policies and, Guidance (EH 2008). What that statement says however is simply that "the definition of a setting of a significant place will normally be guided by the extent to which a material change within it could affect the place's significance". In other words it is for the decision maker in the context of a particular circumstance to assess and decide the meaning of "setting". There is no legal definition nor is there a legally prescribed way of assessing the setting of a monument. Expert advice 2005: - ‘PPG 16 does not define ‘setting’. Nor for that matter does the Ancient Monuments and Archaeological Areas Act 1979 (the ‘1979 Act’) or the Planning (Listed Buildings and Conservation Areas) Act 1990 (the ‘Listed Buildings Act’). The lack of a definition in the latter Act might seem all the more surprising given that sections 66 and 67 place duties on local planning authorities to have special regard to the setting of listed buildings when considering applications for planning permission. The applicants have provided as part of their supplementary information a statement by Mike Griffiths and Associates. They correctly state that there is no statutory definition of ‘setting’, and acknowledge that the approach adopted by PPG15 (in relation to listed buildings) and given added weight the High Court case of Felton (1989) is not transferable to the setting of archaeological remains. However, it is then stated that the purely visual approach to setting of ancient monuments is supported by another High Court case: Revival Properties v Secretary of State [1996]. But such a conclusion is not warranted by that case (or any other case): the decision was not concerned with defining all that ‘setting’ could be but that the extent (legally speaking) of setting in visual terms was wide to encompass that of the monument in question. Nor is a purely visual approach to setting warranted by a consideration of the published English Heritage documents referred to below’.

    2.3.17 ‘The Stonehenge WHS Management Plan includes in the setting of that monument: the different regard in prehistory of areas around ceremonial monuments and beyond (where settlement beyond the monument is needed to support those involved in the ceremonies), and the concentration of sites with grave goods in vicinity of Stonehenge. These considerations are in addition to views of Stonehenge and views from Stonehenge, in the latter case meaning views from the monument to other archaeological sites, e.g. burial mounds sited on distant ridge lines (Part III, 3).
    The Hadrian's Wall WHS Management Plan provides that as well as ‘visual setting’ the Setting (of the WHS) ‘was also seen as a suitable area for the targeting measures for positive landscape management to maintain and enhance the landscape of the WHS. It should also be considered that the Setting contains the archaeological context within which the Wall was built and adapted, including intact historic landscapes of both pre- and post-Roman date’ (page 45, paragraph 2.3.1)’.

     

  9. Section 10 of committee report summarizes the evidence and representations which had been made by both Tarmac and respondents to the application process concerning the impact which the extension to Ladybridge Farm would have on Thornborough Henges. That section recounts the work undertaken by me to evaluate the archaeological significance of the Ladybridge Farm site, the amendments to the boundaries of the proposed extension which were made as a consequence of this work when it is compared with the 2004 planning application and the impact of workings in the Ladybridge Farm site on the setting of Thornbourgh Henges.
  10. My work on Thornborough Henges is contained in a series of reports but the most relevant for these purposes is one dated 2005 entitled "An Archaeological Assessment of Nosterfield, Ladybridge and The Thornborough Plain." ("my Assessment"). That report (together with a number of others prepared by me) was referred to In the Environmental statement which was submitted on behalf of Tarmac in support of the Ladybridge Farm extension application. There Is now produced and shown to me marked "SAT1", located at tab 9, those extracts of that report which explain the archaeological Investigations which had been carried out In preparation for the planning application and those commenting on setting specifically.     Regarding the plans on visibility (the ones with red lines) he is not credited with that work in the 2005 assessment. Timms name appears once: -
    WATCHING BRIEF
    NOSTERFIELD QUARRY
    NORTH YORKSHIRE
    SITE CODE: NOS
    NGR: SE 280 808
    INTERIM REPORT
    March 2005 PROJECT TEAM Andrew Copp BA MA
    Cecily Spall BSc MA
    Richard Jackson BA
    Toby Lewis-Simpson BA
    Peter Glew BA
    Rebecca Cannell BA
    Annette Roe BA MA
    Stephen Timms BA
    Luigi Signorelli BSc MA
    Stephen Rowland BA MSc
    Malin Holst BA MSc
    Mike Collins BABA

  11. Paragraphs III.158 and III.162 refer to the archaeological investigations and III.158 contains a link to all of the relevant supporting reports including my Assessment. It also makes clear that all those documents were available for inspection at NYCC's Heritage Unit.
  12. Paragraphs IV.133 -IV.140 of the Environmental statement summerise the analysis of the impact of the extension on views from Thornborough Henges towards the Ladybridge Farm site. That section concluded the following:
    1. In the original scheme proposed by the 2004 application the most significant views to the Henges were from the southwest corner of the application site. That area was removed from the area contained in the more limited 2008 application;
    2. Only a very small portion of the revised area of the Ladybridge Farm site extension was visible from the highest point of the central henge;     Wrong; it is clearly visible.
    3. The revised smaller area of the Ladybridge Farm site contained in the 2008 application was further away from the Henges than the site contained in the 2004 application.
    4. The area which would be removed by extraction works under the 2008 application was of predominantly lower topography and followed the margins of what would, in the past, have been marsh. There would therefore be a negligible impact on the setting of the Henges;     The land would have been lower in prehistoric times and it was a marsh: The soil was built by vegetation on top of the gravels and the soil is typically less than a metre deep including gravelly subsoil. The photos of the evaluation trenches in the 2005 Application shows that the gravel is about a foot below the surface. Timms was sweating at the August 08 Planning Meeting, to demonstrate what LB was like in prehistoric times he showed a photo of Skipwith Common. It was of a large water body with reeds and scrub to one side, Bob Sydes disagreed with the notion of deep open water, he used the word ‘unfortunate’.
    5. The construction of a temporary bund would mitigate the impact of the quarry on views during the extraction process during which time there will be no view into the site from any of the Henges.
    6. The assessment contained in the Environmental Statement concludes "The revised application will therefore not have a significant impact on the setting of the Thornborough Henges.”
  13. In addition to the Environmental Statement the planning officers at NYCC responsible for this application did of course (as I have explained) have all the supporting documents including my Assessment. The relevant part of my Assessment which deals with setting is attached at "SAT2" located at tab 10. It can be seen that not only does it analyse setting in detail, it does so by reference to a series of plans.
  14. I have included those plans from my Assessment which are relevant to the issue of the setting of the Henges at "SAT2", It can be seen that each plan contains a series of red lines (which in places are -so dense as to become shading)-radiating from a particular point on the plan . . .     The plans confirm all of FoTH’s visibility argument. FAS put in a great number of plans showing that there isn’t inter-visibility including from the Tanfield Cricket Pavilion; why do that when a few words would have done? Atkins approach in the Thornborough Henges Draft Conservation Plan is much simpler and professional.
    These lines show the "zone of visual influence" from the location. In other words they show graphically what views are seen from a particular point in the vicinity of Ladybridge Farm, having factored in the topography of the surrounding area.     The ‘inter-visibility’ plans in the 2005 Application to which he refers are disingenuous. We have photos of the LB site taken from a point far from the top of the central henge. It is very clearly visible from the highest point. Why didn’t he analyze the view from Strait Lane or from the top of Well Bank? Bob Sydes said at an FoTH meeting, it was a ‘mind blowing view’.
  15. Thus the analysis contained in my Assessment did indeed consider the Impact of the extension on the setting of Thornborough Henges In the context of a series of views:
    1. Views from the Monuments towards Ladybridge Farm.
    2. Views out from Ladybridge Farms towards the Monuments;
      This view (Plan No 18) is incorrect. It does not acknowledge that the central henge can be seen from the centre of the application site. This is confirmed by the fact that the opposite view (Plan No 7) – the view from the henge to the site - shows visibility.

      Apparently, the plans of views from the application site are missing from the evidence supplied for the Judicial Review, because these views are not referred to, i.e. Plan No 22.

    3. Views from the side including the monuments and Ladybridge Farm;
      Timms shows many views of the site and the monuments, but fails to show the most spectacular of these – in the Revival precedent - ‘any other relevant view from the side’ - which is the view from Well Bank and Strait Lane. The former is locally important; it offers a surprise view of the Vale of Mowbray and the core setting of the monuments – including all of the quarry pit lakes. The view was considered important enough by Land Use Consultancy to be placed on the front cover of the Swale and Ure Washlands Project Draft After-use Strategy, the photograph of which unsurprisingly didn’t include the lakes, but if the camera had been turned to the right, the henge core setting and the lakes would have been shown.

      The plans he refers to are in a document dated 2005 for a rejected application, which was not before the Planning Committee in August 08.

  16. It was in the context of having seen all this documentation that the committee report was written.
  17. In addition to referring to the conclusions on setting contained in the Environmental Statement, the committee report then refers committee members to the relevant policy considerations. Paragraph 10.13 of the committee report recites PPG16 which states: "where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed developments there should be a presumption In favour of their physical preservation in situ i.e., a presumption against proposals which would involve significant alteration or cause damage or which would have a significant Impact on the setting of physical remains".
  18. The committee report then reports at paragraph 10.14 that both English Heritage and the County Council's Heritage section were satisfied that the visual setting of the Scheduled Thornborough Henges would not be affected by the proposed development. English Heritage are the government's statutory advisor on the historic environment and are the key statutory consultee whose views NYCC would seek on an application such as this. They had strongly objected to Tarmac's original proposals to extend Ladybridge Farm over a much wider extraction area in the 2004 application. The fact that English Heritage did not object to the application for the proposed extension in 2008 was therefore a very relevant consideration which was drawn to the attention of the committee in the committee report at paragraph 10.14.
  19. The committee report then states at paragraph 10.19 that "It is considered that there are now no grounds for refusing this application on matters relating specifically to archaeology and the proposals accords with the principles of both PPG16 and Policy ENV9 of the Regional Spatial Strategy , "
  20. The committee report then concludes that "the visual setting of the Scheduled Monument at Thornborough Henges will not be adversely affected by the proposed development. It is therefore considered that the proposal accords with the principles of PPG16 and Policy DP29 of the Hambleton District Local Development Framework Development Policies" (paragraph 11.8).
  21. In reaching its decision therefore the committee had before it a report which had been prepared following consideration of a detailed assessment of the impact which extraction works at Ladybridge Farm would have on views to, from and through the Henges. The committee was also referred to the relevant policy guidance. Finally it was Informed of the English Heritage - the key statutory consultee on these matters- had not objected.      The P Comm. had neither the correct assessment (relevant views) nor the correct guidance.
  22. Ms Miller's complaint appears to be that, because the committee report does not specifically refer not just to views from the Henges but also views to the Henges and from the quarry, it follows that the committee failed to address properly the issue of setting. I confirm that I was at the meeting of the planning committee on 26 August 2008 when the application was discussed and that suggestion is simply incorrect.      FoTH was not suggesting that! Not only did the planning officer Rachel Pillar summerise her review of the considerable evidence relating to this application (to which I have referred above) but comment was also given in relation to this aspect of the application by Rob Moore, on behalf of Tarmac and Bob Sydes, NYCC's Heritage and Environment Manager. Mr Sydes confirmed to the committee that he agreed with my assessment of the impact of the proposal on setting. Specifically he stated that the Henges were hardly visible from the quarry. He also showed the committee photographs of the location which put the discussion about setting in context. In other words the committee were told and understood that it is almost impossible to see the Henges from the quarry or vice versa. The phraseology contained in the report needs to be understood in that context.     Again, ‘any other relevant view’ is not referred to.
  23. Quite simply therefore the committee had before It all the relevant Information to make a decision as to the impact which the proposed extension to Nosterfield quarry would have on the setting of Thornborough Henges. It concluded In the light of this information that the grant of permission would not be inconsistent with Policy PPG16- a conclusion which it reasonably and properly reached.
  24. Put in that context, it is difficult to see any basis for the challenge made by Ms Miller to the decision making process.
  25. Furthermore the planning committee's approach to the "setting" of Thornborough Henges in the context of proposed works at Ladybridge Farm, was entirely reasonable in circumstances where:
    1. what was proposed by the planning application was works of extraction which would in fact have the effect of lowering ground levels at the Ladybridge Farm site, thus making the development there even less visible from the Henges;     This is contrary to Revival, because it destroys the view from the site to the monuments, and alters other relevant views detrimentally.
      He suggests that it’s ok to remove what is part and parcel of the setting because you can’t see it when it’s gone. That is wrong in landscape and archaeological terms, and the resultant lake will be visually prominent from certain public viewpoints. To be relevant, a view does not need to be accessed by the public.
    2. Tarmac had committed to carrying out restoration works once mineral extraction has ceased as a condition of tile planning permission. As the committee report explains (paragraph 10.5) In Neolithic/Bronze Age times the majority of what is now the Ladybridge Farm site would have been an area of wet and boggy ground unsuitable for human settlement or significant activity. The works which will be carried out at the end of the life of the planning permission will restore the site to a wetland environment reinstating the historic edge of the dry and wet ground that has been eradicated by modern drainage and agriculture - a condition far closer to that which would have existed when the Henges were first built than was the case before mineral extraction began.      Wetland is land. Deep water is another thing. At paragraph 12.4 he says it was marsh. Marsh is not deep water and following the retreat of the glaciers any standing water would have been rapidly colonized by reeds giving the appearance of dry land. Dr Jan Harding explains the importance of this wetland to humans. If one chose to ‘reconstruct’ the prehistoric landscape, one would remove the soils and block drains to create marsh – not lower the land by many metres.

     

    The relevance of the Atkins figures
  26. Finally reference Is also made in Ms Miller’s evidence to figures prepared by Atkins for the "Thornborough Henges Conservation Plan". It is said that these figures show that there are significant views encompassing the Henges and the Ladybridge Farm site. The allegation is made that although these figures were part of an earlier draft, they were not part of the public consultation process and were not therefore before the planning committee when the decision was taken. There is now produced and shown to me marked "SAT3”, located at tab 11, copies of the plans to which I am assuming Ms Miller is referring.
  27. Those documents prepared by Atkins were indeed part of a consultation which was commissioned by NYCC,English Heritage and Tarmac to develop a conservation plan for the Thornborough Henges. The project involved consultation with a number of other stakeholders and interested parties Including Friends of Thornborough Henges, local landowners, occupiers, the University of Newcastle and Mike Griffiths Associates Ltd. The objective of the exercise was to produce a framework in which the Thornborough Henges and the area immediately around them could be managed. It was agreed at the outset that the plans would not have any status as a planning document.
  28. The figures referred to In Ms Miller's Statement of Facts and Grounds were produced in one section of the draft conservation plan- "the Setting of the Henges Draft for Discusslon”. This section comprised an overview of the concept of setting and an analysis of the "setting" as defined by Atkins. In the event the document was shelved because it was rejected by the majority of the stakeholders involved in the consultation who did not agree either with the boundary of "the setting" as designated by the figures or with the significance which the figures purported to attach to the views.      Timms was instrumental in working up landowner’s opinion against the Conservation Plan. He sought information under the Freedom of Information Act from English Heritage which mysteriously found its way into landowner’s hands prior to a public meeting regarding the Conservation Plan. It was not agreed at the outset that the Conservation Plan would not have status as a planning document, had it been known, FoTH would have raised the matter. It was stated in the brief for the plan that it wouldn’t be any use if not adopted. If the setting advice was for the area ‘immediately around’ the henges, why then was the ‘study area’ and the ‘core setting’ much wider as identified in the brief for and the first draft of the plan? One must comment that Atkins Global is as proficient at least as Mike Griffiths Associates. Simom Thurley , Chief Executive of EH, on the matter of setting and the Plan wrote in 2005 that ‘My understanding is that the decision of the County Council's Working and Consultation Group to exclude the Atkins' work on setting from the next consultation draft of the Conservation Plan was in response to local concerns about the perceived impact of the Plan on local agriculture. Whilst these concerns are essentially unfounded I understand the reasoning behind the Group's decision. Nevertheless this work has been done and remains available as a contribution to the wider debate on the henges and their future’.
  29. It was not therefore a relevant document in the context of the planning application for the Ladybridge Farm extension.
  30. However, of the four significant views referred to in the Atkins figures, three of these views (View A, C and D - Figure 19 - Views to the Henges) were coincidentally modelled, visually checked and analysed as part of my Assessment. (The fourth view (View B) was not considered in my report as it did not provide view relevant to this specific site). The views In question are shown in Plan 27{ Plan 12 and Plan 28 respectively of my Assessment ("SAT2.") and considered in the relevant text.
  31. The views referred to In the Atkins figures were therefore considered in detail by me on behalf of Tarmac and the subsequent analysis was referred to In the Environmental
  32. Finally, to the extent that the Atkins plan is at all relevant it can be seen that also the area delineated by the Atkins plan as being the "contributory setting area" is a borrow pit known as Upsland. That pit is operated by Hanson. Application- was made by Hanson for an extension to that pit to permit extraction of 1 million tonnes over 3 years at a rate of 330,000 per year. The application is due to be considered by the planning committee shortly, and I am told by Malcolm Ratcliff, Tarmac's planning consultant that a number of consultation responses to the application appear on NYCC's planning file. Interestingly, however neither Ms Miller nor FOTH have raised any objection to that application despite its apparent location within the designation of settling- albeit contributory setting - relied upon by Ms Miller in this application.      How much time do volunteers have? Particularly as we knew from the outset that the CC was minded to turn Upsland down and it looked like a non starter anyway. The CC suggested we respond to Upsland and informed us that they wanted our support to refuse it, when they were accepting a proposal nearer to the henges. Should we have been part of a pre-determined decision? It is recorded that we were monitoring the situation anyway, and had it looked seriously like a runner we would have responded. Further, we had a Parish Plan which echoed all of FoTH’s concerns and Tanfield PC was responding to all consultations in line with it. EH and the CC knows that FoTH was researching and monitoring Upsland. Upsland is not visible from the henges as shown by Atkins – is Timms suggesting that we should be complaining on non visual grounds!?
I believe the facts stated in this witness statement are true.
Stephen Alan Timms
Date 21 February 2009

English Heritage’s Role.

Over the years EH’s stance has shifted considerably. On the 15 May 2003 English Heritage Advisory Committee (EHAC) was very much concerned about the effects of extraction on setting, it advised : Thornborough Henges (HSLAC 2001/10) 9.5 The focus of debate about this group of henge monuments had changed from interpretation and promotion to protection of their settings from the impact of gravel extraction in their vicinity’ - to which there is no contrary advice prior to the 23rd February 09 (see email below), or later for that matter. In 2004 at another EHAC Meeting ‘It was noted that the landscape (leached of its archaeological content) could not be returned to its original appearance; slight fluctuations in the topography could not be restored, whilst the creation of a lake after proposed extraction at Ladybridge Farm and around the southern henge would be a radical departure’ , but by 2009 EH was implying that setting was a lesser consideration than remains, and that no threats remained to the landscape except for deep ploughing around the henges. Those revised views are wrong. For instance even Natural England’s advice states not to have trees cutting views of monuments and tree roots damaging remains ‘with a particularly important historic landscape around Thornborough Henges’ and ‘avoid planting on or near archaeological features, and avoid obscuring historic landscapes’ - ‘Issues considered included whether planting would obscure or damage historic sites, or whether it would affect the setting or integrity of a historic site. It is important to note that historic remains are extremely widespread and many have not been fully recorded’. In responses to Consultations at Thronborough, EH has not commented on these matters, even though roots are clearly tunnelling into internationally importanty remains and permanent screening trees are cutting views as a result of mineral Permissions.

Deep cultivation continues farther afield than the immediate vicinity of the henges, this is largely unnecessary and costly; it amounts to wrecking tactics. Tarmac uses the argument that if it doesn’t destroy and record the archaeology through extraction it will be destroyed by ploughing. Reference is made to the ‘factor of minerals hope value at Thornborough’ in EHAC minutes Feb 06.

Bear in mind the following extract from EHAC minutes:
EHAC 15 May 2003: - 9.5 ‘The focus of debate about this group of henge monuments had changed from interpretation and promotion to protection of their settings from the impact of gravel extraction in their vicinity’.
EHAC 8 JANUARY 2004: - 8.2 ‘Members affirmed the enormity of the site’s archaeological significance. The northern henge was possibly the best preserved of its kind in the UK. As a group, comparisons of size and importance could be made with the landscapes at Cranborne Chase and Stonehenge. The three henges were outside the area proposed for mineral extraction and were some distance from Ladybridge farm, and so would not be likely to suffer direct physical damage as a result of the proposals. However, evidence relating to the henges in time or space very probably would be damaged, and the extraction proposals were emerging in a context where understanding of the deposits, the evolution of the ceremonial landscape, and the palaeo-environmental significance of the neighbourhood were all subject to large uncertainties. The impact of the proposals on the archaeological environment and on the setting of the henges would be substantial. It was noted that the landscape (leached of its archaeological content) could not be returned to its original appearance; slight fluctuations in the topography could not be restored, whilst the creation of a lake after proposed extraction at Ladybridge Farm and around the southern henge would be a radical departure’.
EHAC 3 February 2006: - 7.8 ‘Members were extremely concerned about the piecemeal approach to what they considered an exceptional landscape and which had resulted in its gradual eating away’.

On the 23rd February 2009 EH was asked: - ‘If EH had the Landscape Character Assessments and the present Application (BMP) to consider in July last year, both of which were available then, is it likely that EH’s recommendations would have been different to the ones made’?

EH responded ‘It is unlikely that our response would have been different as the revised application continued to address our primary concerns on the nationally important archaeology by omitting the area to the south of the application’ This stance is inconsistent, for instance, why comment on setting (without actually mentioning the word) in 2008 if it didn’t really matter?

One would have thought that ‘setting’ should be of equal concern to the ‘primary’ one of archaeology (remains). ‘Setting’ should be of equal concern; on the 3rd February 2006 EHAC Members patently thought it was. ‘A broader vision was needed to make the landscape meaningful. The Thornborough area was thought to be a stunning example of a prehistoric and later landscape which includes several scheduled monuments and other distinctive landscape features. Not enough had been done to make people aware of its magnificence and outstanding importance’. And ‘EH considers that the archaeological deposits discovered in the southern portion of Ladybridge Farm are of national importance and are further convinced that the larger archaeological landscape is also of national importance’ etc.

PPG16 confers equal protection for remains and setting: - PPG16 Paragraph 8, bold as in the original: ….. ‘With the many demands of modern society, it is not always feasible to save all archaeological remains. The key question is where and how to strike the right balance. Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation…………….

(Paragraph 27): … ‘As stated in paragraph 8, where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation in situ i.e., a presumption against proposals which would involve significant alteration or cause damage, or which would have a significant impact on the setting of visible remains.’

Further to this point, in a letter to NYCC ref P00034158 Notifications under Circular 01/2001 & GDPO 1995 16th April, 2008 EH advised: - ‘We have received amended proposals for the above scheme, English Heritage is the Government's statutory adviser on all aspects of the historic environment including historic buildings and areas, archaeology and the historic landscape and has a duty to promote public understanding and enjoyment’.

And EHAC Minutes Friday 3 February 2006: -
‘EH considers that the archaeology and the landscape are nationally important and therefore, by extension, also at Ladybridge Farm. The Farm cannot be separated from the monuments’.

The LCAs, the Countryside Agency, the County Council’s Principal Landscape Architect (cf Upsland Officer Report to Planning Committee 26th May 2009) local and wider opinion confirms the landscape and setting of villages and monuments have been adversely affected by mining.

To demonstrate an example of further inconsistency in EH’s approach, in its June 05 response to the Ladybridge Application (relating to the earlier, larger, proposal) attention was drawn to the accumulated bodies of water: - ‘Although the Conservation Plan currently being produced for the Thornborough landscape will consider setting issues in detail, the proposed after-use of the site as a body of water (comprising one large and two smaller units) would significantly affect the visual setting of the henges from the air, from the top of the henges (which may become accessible to the public) and from important viewpoints north east of Ladybridge Farm and from the Well / West Tanfield road’.

In January 06:- ‘English Heritage further advises that the proposed after-use strategy is an inappropriate landscape treatment with regard to the setting of the monument complex, particularly with regard to the accumulated impact of another body of water on the visual setting of the henges’.

But in July 08, ‘The proposed reduction in the extraction area has a concomitant reduction in the extent of standing water areas - which is welcomed by English Heritage. However, the Environmental Statement makes much of the benefits and enhancement of bio-diversity (particularly in the peripheral areas and in the wider landscape) but does not make the connection between these improvements and the greater benefits which would gained by amalgamating natural and cultural themes and interpretation. Making this connection would provide a more robust framework for after-use proposals. English Heritage accepts the landform model presented by Tarmac Northern Ltd to the effect that there is a higher landmass surrounded by wetland which would have been heavily exploited and used: a model that has been clarified by fieldwork. The reduction in scale and extent of standing water and its replacement by smaller units of water and wetland (to the north of areas previously proposed for wetland restoration) and the sustainable management of the area to the south of the extraction zone, will aid the presentation and interpretation of the prehistoric landscape without the philosophical problems now associated with ‘recreation’’. (Our emphasis on above three paragraphs)

There are important points here: -

The Bird Management Plan (available in 2007) indicated that the restoration would be much ‘harsher’ than the one shown in the Application documents, with steep sides and little by the way of shallows. The restoration will not aid interpretation, but give a false impression. That is why it was suggested to EH that it should have been a consideration in the email to EH dated 23rd February 2009.

Defence Estates’ letter dated the 29th August 06 is of particular interest because the planting of reeds would have softened the visual effects of the restoration: - b) ‘A site specific bird management plan being incorporated into a section 106 agreement. This must include all of the conditions outlined in my letter of 19 July 2005 and naming Starling as one of the species to be managed. This is because the species of reed to be planted (Phragmites australis) will be vulnerable to the development of a Starling roost’.
Tarmac’s 2006 Application showed: - ‘Reed Beds Planting 0.0 - 1m depth of water Common reed (Phragmites australis)’. The 2008 Application doesn’t refer to australis on Ladybridge, but does refer to the benefits and extent of reed beds. The 2007 Application refers directly to australis.

Similarly, in 19 July 2005 Defence Estates advised: - ‘b) The water should be as deep as possible and the bank sides as steep as possible to minimise the aquatic diversity of the water body (to help to reduce any exploitable feeding opportunities for many 'hazardous' species)’. Again this is the opposite of what the Planning Committee (and other Consultees) were given to decide upon which was gently sloping sides with reedbeds and shallows. We think it’s a fundamental point that some Officers and obviously Tarmac knew all about the condition about the reeds, yet allowed the Planning Committees to think otherwise.

When these conditions are met, and the BMP largely complies with DEs’ conditions, then we will be left with a steep sided water filled hole in the ground which will neither fit into the existing landscape nor help ‘interpret’ the prehistoric landscape.

EH and the County Council quote the EU Landscape Convention to support their strategy on landscape; the document is about landscape character and the effects of development upon it: EH, the Convention, and all relevant government guidance advises the use of character assessment, but here, where it could have been used to bolster a case, EH is apparently saying it wouldn’t have made any difference because it is not particularly bothered about the loss of landscape character and setting. It is of particular concern when the LCA’s referred to earlier were used by the County Council to strengthen its opposition to the Upsland Application when it is both further away from the henges than Ladybridge and out of sight of the henges.

To demonstrate our point on setting, we quote elements concerning a recently rejected planning application for wind turbines near the Duddo stone circle, Northumberland, where it was decided that even temporary adverse impact on the setting of a monument was unacceptable: -

Secretary of State decision letter extracts Ref: APP/P2935/A/08/2078347;
APP/P2935/A/08/2079520;
APP/P2935/A/08/2077474

Appeal C: made by Npower Renewables Ltd against the decision of the Council to refuse planning permission for the erection of 7 wind turbines, together with associated infrastructure and services at Land at Toft Hill to the south west of Grindon in accordance with planning application reference 06/B/1001 dated 31 October 2006.

16. ‘ The Secretary of State has had regard to the Inspector's comments in respect of the Duddo Stone Circle SAM at IR338-349. He agrees with the Inspector, for the reasons she gives at IR344-346 that the site of Appeal C is well within the setting of the Duddo Stone Circle (IR346). He also shares the Inspector’s view that the proposed windfarm would have a significant adverse impact on the setting of this SAM (IR348) and that the scheme would conflict with national policy in PPG16 and also with LP policy F26 and with RSS policies 16 and 32 (IR349)’.

20. ‘The Secretary of State has carefully considered the other matters raised at the Inquiry. He agrees with the Inspector's reasoning and conclusions in relation to grid connections (IR381). Given the very considerable life-span of the schemes, the Secretary of State does not consider that the reversibility of the schemes is a matter which weighs in their favour. He has not taken account of the possibility identified by the Inspector (IR380) that future planning permissions might be granted, allowing the turbines to remain’.

24. ‘In the case of Appeal C, the Secretary of State agrees with the Inspector's balancing of factors at IR393-395. Like the Inspector, he considers that the harms of the Appeal C scheme would outweigh the benefits, principally because of the significant adverse impact that the turbines would have on the setting of the Duddo Stone Circle SAM. In common with the Inspector (IR349 and 395) the Secretary of State attaches substantial weight to the harm which Appeal C would cause to the historic environment. He also shares the Inspector’s view (IR395) that, as the scheme would be located where environmental impacts could not be satisfactorily addressed, it would be contrary to Key Principle (i) of PPS22’.

30. ‘In the case of Appeal C, as set out at paragraph 24 above, the Secretary of State attaches substantial weight to the significant adverse impact this scheme would cause to the setting of the Duddo Stone Circle SAM. He has also concluded at paragraphs 16 and 24 above that the proposals are contrary to RSS policies 16 and 32, LP policy F26, and national policy in PPG16 and PPS22. He concludes therefore that the scheme would conflict with the development plan and he has found no material considerations of sufficient weight to justify his determining this appeal other than in accordance with the development plan’.

Appeal C
34. ‘The Secretary of State hereby dismisses the appeal and refuses planning permission for the erection of 7 wind turbines, together with associated infrastructure and services at Land at Toft Hill to the south west of Grindon in accordance with planning application reference 06/B/1001 dated 31 October 2006’.

Inspector's Report extracts by Ruth V MacKenzie BA (Hons) MRTPI.
Report: APP/P2935/A/08/2078347; APP/P2935/A/08/2079520; APP/P2935/A/08/2077474

21. ‘The Duddo Stone Circle stands on the top of a small knoll. It consists of 5 stones, about 2m high, and it is thought to have been built about 4000 years ago. The whole wind farm would be clearly visible from the stone circle. The nearest turbine would be about 1.7km away to the west’.

341. ‘In my view, the stone circle has high evidential, historical, aesthetic and communal value; the 4 categories of “value” set out in English Heritage’s Conservation Principles (page 28, CD14.4). [47,169]’

English Heritage’s Conservation Principles. Policies and Guidance for the Sustainable Management of the Historic Environment
Consider the contribution made by setting and context

76 ‘‘Setting’ is an established concept that relates to the surroundings in which a place is experienced, its local context, embracing present and past relationships to the adjacent landscape. Definition of the setting of a significant place will normally be guided by the extent to which material change within it could affect (enhance or diminish) the place’s significance’.

77 ‘‘Context’ embraces any relationship between a place and other places. It can be, for example, cultural, intellectual, spatial or functional, so any one place can have a multi-layered context. The range of contextual relationships of a place will normally emerge from an understanding of its origins and evolution. Understanding context is particularly relevant to assessing whether a place has greater value for being part of a larger entity, or sharing characteristics with other places’.)

THE CASE FOR NORTHUMBERLAND COUNTY COUNCIL (summarised para 47 -57 of the report, including detailed consideration of archaeology).

49. ‘The 7 turbines at Toft Hill would radically alter, and adversely affect, the experience of visiting the Duddo Stone Circle. When approaching on the footpaths from the north and south, the prominence of the turbines would increase as the stones got nearer. From the stones there are views across the Tweed Valley to the north and north west, views of the Eildon Hills to the west, and views of the Cheviots to the south and south west’.

53. ‘The Council’s views about the harm to the setting of the stones are corroborated in a report by Professor Richard Bradley (CD14.18), an academic who is widely recognised as the leading expert in the UK on Neolithic and Bronze Age monuments. Further support comes from English Heritage’s policies and guidance in Wind Energy and the Historic Environment (CD14.2), Climate Change and the Historic Environment (CD14.3) and Conservation Principles (CD14.4). Wind Energy and the Historic Environment advises that consideration should be given to the reversibility of developments, but it does not advocate the approval of all developments simply because they are reversible’.

54. ‘Npower decided to press ahead with its proposal regardless of the conclusion in its own ES (Chapter 11, CD7.3) that there would be a significant adverse impact on the setting of the stones. Npower later commissioned a report, The Setting of Duddo Stones (CD4.7). The report contradicted the conclusions in the ES by arguing that the setting of the stones was extremely limited and did not extend as far as the Toft Hill site. This change of view, and the inconsistencies in the evidence given by Npower’s cultural heritage witness, does not inspire confidence’.

=============================================

On the 3rd of September 09 Dr Simn Thurley, EH’s Chief Executive, was asked to comment on the August 09 Judgement, because it was clearly wrong: -
‘As you will see, it flies in the face of all advice on setting and sets a dangerous precedent; which is most surprising because the judge had before him Steven Bee’s advice on setting. There are about a dozen factual errors in the Judgment, but I am most concerned about his assertion that setting is only a visual concept.

I would be grateful therefore if either you or another member of EH could comment, as soon as possible, not on the decision itself; but on the rationale in reaching it, and clarify EH’s position on the matter’.

On the 18th of September Dr Thurley replied: -
‘Thank you for your email of the 3rd September regarding the outcome of the Judicial Review at Ladybridge Farm, Thornborough, North Yorkshire.

The concept of setting, as enshrined within legislation, has been the matter of considerable debate within the historic environment sector. As set out in Steven Bee’s letter to John Lowry in March 2008, which you refer to in your email, there is still no formal definition of setting. But English Heritage (in connection with the draft Planning Policy Statement 15 – now out for consultation) has been working towards the publication of guidance on this subject. However, this piece of work has not yet been concluded, and it will not be completed until the consultation of the PSS has ended and a final draft has been prepared.

English Heritage is content with the decision made on this application. It would not be appropriate for us to express any detailed views on the Judgement.

Yours sincerely’,
Dr Simon Thurley

Quite where this leaves English Heritage’s strategy for the conservation of this archeologically significant area remains to be seen.

===================================

Ground 3: The Bird Management Strategy

Bird Management Plan and concomitant implications for the landscape setting of the henges. The main consideration in the decisions made over the years at Ladybridge was ‘did the value of the mineral plus the after-use outweigh the damage caused to landscape, higher grade farm land, archaeology and the setting of monuments etc, in a historic landscape singled out as being of special interest in the Regional Spatial Strategy ? The after-use was said to be so good that it did, although it was said by Officers that there was an inconsistency between attracting birds into the site and then having to discourage them on military bird strike grounds.

According to expert opinion on BBC Nature, nature reserves have a role. They help over-winter bird survival, but they might not be as helpful in the breeding season if there is no breeding habitat. Where do they go to breed when the site has been specifically designed to stop breeding? They bring birds into breeding condition, but they have nowhere to go. It is stated that the bigger the reserve the better, but no matter how big it is, if it is specifically designed to discourage certain birds this must apply.

The conditions on August’s permission stated that there should be a Bird Management Plan (BMP). We claim that County Council Officers were aware of the BMP and were concerned about its effects on landscape and biodiversity, but did not insist that it should be a material consideration put before the Planning Committee. An earlier version of the BMP had been seen by Officers in 2007, and the later version was dated April 2008, prior to the Planning Meeting in August 2008. Great concern was expressed in County Council internal memos about the effects on landscape and that the after-use would not achieve the benefits to nature conservation proposed. Much later, in April 2009 the Principle Ecologist decided that ‘I am generally satisfied with the bird management strategy (BMS). There are still some areas of potential conflict between this strategy and the nature conservation restoration, particularly in terms of water depth and shoreline treatments’. The visual effects ‘water depth and shoreline treatments’ to which the Principle Landscape Architect expressed alarm earlier, was apparently not considered material later.

At least two Members of the Planning Committee raised concerns about the dichotomy of the benefits of bringing birds into the area to feed and breed and that of having to prevent birds flocking and risking bird-strike. At one Planning Meeting a Senior Minerals Officer spoke for a few minutes on the matter and agreed there was a dichotomy, but said it would all be sorted out later as part of the S106 agreement.

If the BMP and the Landscape Character Assessments had been available at the relevant times the decisions would have been different.

To explain FoTH’s concerns in more detail, it is necessary to refer to the Application of 2004 where Defence Estates set out its criteria for bird control, and then much later the publication of the BMP which says it will discourage the BAP priority birds which the application sought to attract. This plan was available in April (dated April 08) and should have been shown in the Application (Dated June 08) and considered by the Planning Committee in August 08. The Applicant states in all of its Applications that the MPA has been consulted throughout, and indeed, this is recommended procedure. An earlier version of the BMP was available in 2007 and had been received with consternation by Officers, why then didn’t someone say ‘hadn’t we better let the Planning Committee see the BMP’.

The quashed 2007 Permission states "The GRANT OF PLANNING PERMISSION shall be subject to a section 106 legal agreement to cover the following matters:
(e) Bird Management Plan."

At the Planning Meeting of the 16th January 2007, the after-use of attracting local and national Biodiversity Action Plan bird species onto the restored quarry and landscape enhancement was said to be good, although it was recorded by Officers at the Meeting that there was a contradiction between attracting birds into the site and then having to discourage them on military bird-strike grounds. The 2007 permission stated that there should be a Bird Management Plan (BMP) as part of the S106 agreement. Members of the Planning Committee expressed concerns over the contradiction of attracting birds on the one hand and deterring them on the other.

FoTH did not raise the matter as an objection because they had taken advice that it was feasible, through passive means, to deter ‘hazardous’ birds whilst allowing for good numbers of other species. The expert advice was that, to achieve this would need subtle handling of the local environment. Note that the applicant's approach was not subtle, it did not consult experts who may have helped, and it adopted a policy to shoot the birds and deter them by steep quarry sides and no shallow water.

Shooting birds is what the land owners do for their recreation and financial gain.

The Minerals Officer reported verbally to the Committee that there was a dichotomy, but it could be worked around to satisfy the requirements of DE and the after-use proposal.

On the 26th March 2007 a Draft S106 was submitted to the County Council. This occasioned the comments in the memo dated 26th March 2007 from the Principal Ecologist to the Environment Manager on the proposed Bird Management Plan (Note that this was not the actual BMP, only reference to some of what the BMP should include.) : -
……. ‘This could result in more significant gains for nature conservation and I feel that we should push this to the absolute limit, as some of the bird management procedures can be diametrically opposed to the other natural environment objectives we are trying to achieve. Why is the timing for the Bird Management Plan different to that of the other plans? This plan should be prepared in conjunction with the other plans so that it can be sensibly applied to the site’……………

On the 3rd October 2007 the S106 agreement was signed by all parties without the inclusion of the BMP.

Following the signing of the s106 agreement, pursuant to paragraph 6.1, Schedule 2 of the agreement signed on 3rd October 2007, the BMP dated the 31st July was submitted On the 21st November 2007 to the County Council for consideration. The BMP recommended steep sides, deep water and no shallows for the lakes and active bird control measures including egg oiling and shooting. The plan stated at 2.2.6 ‘Where appropriate, the provisions outlined in this document would be applied to the restoration and long term management of the Ladybridge Farm Extension site’.

Note the BMP referred to Ladybridge only.

On 5 December 2007 the County council was issued with a Judicial Review Pre-action protocol letter based on FoTH objections.

These were, briefly...

  1. As the area is not a "Preferred Area" or an |"Area of Search", the development could not be considered to be "small scale" and was therefore illegal.
  2. That the County Council has failed to consider the effect of the development on the setting of the Thornborough Henges.
  3. That, as a site of international archaeological importance, remains ought to have been preserved in situ. The County Council has not had regard to this.
  4. The County Council's reasons for granting the permission were based on outdated policies.
  5. The decision did not contain a summary of the relevant development plan policies as required by the Town and Planning (Development Development Procedure) Order 1995, Article.
  6. The County Council did not have adequate information on surface water, ground water and hydrogeological risks posed by the proposed development.
  7. Conditions concerning hydrology and hydrogeology that the Committee resolved to impose on 16th January 2007 are not included in the planning permission.
  8. Consultation was denied to local residents in relation to the s106 agreement accompanying the permission.

On the 11th January 2008 the County Council conceded that the decision on this application issued in October was unlawful.

There was no further consideration of the BMP. (Except that there is an overlap between the CC conceding and the Memo dated 29 January 2008 below.)

On the 17th January 2008 the County Council signed the consent to Judgment order.

On the 25th January 2008 Eversheds (Tarmac's solicitors,) signs consent to Judgement order.

On the 29th January 2008, referring to the Bird Management Plan, an internal NYCC memo dated 29 January 2008 was sent from the Principal Ecologist to the Heritage and Environment Manager: -

In April 2008 Glen Kemp consultants produced a Bird Management Strategy Tarmac - confirming the "shoot the birds" plan, but worse - retrospectively attempting to extend it to the Nosterfield Quarry which already had an approved after-use of nature and recreation - so this required annulling the agreed terms but no application was made to do this.

On the 11th of June 2008 Tarmac submitted a further Ladybridge application and it was sent out for consultation. A "Shoot the birds" BMP was not shown within the application, neither was it mentioned that a plan had existed - any reference to a bird management strategy implied that it would be worked out later. BUT NYCC was aware of the 2007 "Shoot the birds" BMS as applied to the previous application. Whilst this did not come to the fore due to the quashing, they cannot deny awareness of its existence. Under 1.32 NYCC argue that "Since the application is essentially a re-submission" no further consultation is necessary, and "shoot the birds" is slipped under the wire again. This material consideration which was an essential part of the EIA was not picked up by the statutory consultees and was not presented to the public for consultation or the Minerals Planning Committee for consideration. This led to the decision on 12th June 2009 by NYCC to allow development to commence.

The April 2008 BMP stated: - 2.2.6 ‘Where appropriate, the provisions outlined in this document could be encompassed in a restoration and long term Management Plan of the Ladybridge Farm Extension site / Nosterfield Quarry site’.

2.2.3 ‘The habitat design and management provisions set out within this document should enable active bird management tools (e.g. bird scarers, shooting, etc) to be avoided in normal circumstances. However, such active management measures would be introduced if subsequent site monitoring of flocking bird numbers indicated a problem requiring positive action. In this respect, It should be noted that the landowner has specifically retained (and exercises) the shooting rights over the existing restored wetland areas at Nosterfield quarry to the west of Moor Lane’

There are vested interests who favour the "shoot the birds" BMP. Perhaps this was the plan all along and the North Yorkshire Minerals Planning Committee, consultees and the public have all been fooled as the applicant has known throughout that the terms laid down by the MoD must, in the end, prevail. Could this be why they have never allowed the promised public access?

On the 13 November 2008, in response to the Draft s106 agreement submitted to the CC on the 6th November 08 NYCC’s Heritage Manager sent an email to Catriona Gaterel of the CC’s legal department dated 13 November 2008 09:37. At this stage he had not seen the April 2008 BMP (because it followed the signing of the S106), he was responding to text in the S106 when he commented: - ‘The revised wording in 5.5.1 represents a significant step forward to achieving an after-use strategy that meets a variety of outcomes and is expressly designed to ensure that we don't just end up with large bodies of open water’.

Apparently when the Heritage Manager gave that advice he had forgotten all about the grave concerns expressed in the memos dated 26th March 2007 and 29 January 2008 by the Principal Ecologist and the Principal Landscape Architect to the BMP which was part of the quashed permission.

The BMP was submitted to NYCC on 2nd December 2008. On the 27 January 2009 the BMP was put out for consultation. This was the first time the public and (we think,) Statutory Consultees had seen it. We have to ask why NYCC sat on it for seven weeks.

It was essentially the same as the version submitted to the County Council on the 3rd October 2007 except that it now applied to Ladybridge plus the present quarry (which had been given permission based biodiversity and encouraging nature). Proposing shooting and egg oiling of priority species on 33ha is bad enough, but on an additional 106ha is clearly much worse, as all non aquatic life is sterilised. The 2007 and the 2008 versions of the secret BMP had the same restoration plans attached showing deep water and steep banks – the opposite of the plan upon which Members resolved to grant permission in August 2008.

The Target date on the Online Planning Register for its consideration was the 20th of March 2009, but in the event, the application was determined on the 3rd of March thus allowing little time for consultation on this crucial matter. One is forced to question why the delay in putting the BMP out to consultation and undue haste to put he matter before the Planning committee.

On the 20 July2008 FoTH objected to the Application which was due for determination on the 26th of August, to summerise all of our objections relate to North Yorkshire County Council's lack of adherence to policies and guidelines.

These policy contraventions include:

NYCC has a history of disregarding its own and national policies when considering mineral planning applications, causing concern to both statutory consultees and ratepayers. Legal opinion is that the 1994 decision that precipitated the sequence of quarrying close to Thornborough Henges was fundamentally flawed. Decisions made by local government must be lawful, and the authority’s Monitoring Officer has a duty to ensure adherence to the law, to policies and to guidelines. Yet permission C2/92/500/53 was criticised as unlawful on eight different counts, forcing its voluntary quashing by NYCC. Whether this was the result of institutional incompetence or under-resourcing, the authority must put its house in order, starting with this re-submission, or be subjected to external scrutiny.

The following are material considerations.

  1. Scale
  2. Setting
  3. Preservation 'in situ'
    Buried remains associated with and within the setting of a nationally important monument should be preserved in situ but, to date, this guidance has been largely flouted at Thornborough. (Note 2) The Committee should explain why national policy has been persistently ignored. The previous S106 agreement required preservation in situ of one third over three years, which is not good enough. We know nothing of the new S106 relating to Ladybridge, despite Tarmac’s promise: ‘It is our intention to let you have a copy of the new draft Section 106 agreement so that you may raise any points which you believe pertinent. The document will follow shortly.’ (Eversheds, 25 Jan 2008)
  4. BMV agricultural land
  1. (i) After-use
  1. (ii) Pollution
  1. (iii) Hydrology/hydrogeology
  1. New Policies
    Tarmac’s supporting statement makes little or no reference to two significant new policies, the Hambleton Local Development Framework and the Yorkshire & Humberside Regional Spatial Strategy to 2026, both of which were adopted prior to the submission of this revised application. Neither of these policies supports the water-based after-use strategy proposed at Ladybridge Farm. (See attachment, ‘Relevant Guidelines & Policies’)
  2. Mismanagement of assets.
  3. Inadequate consultation. Tanfield has produced a Parish Plan, which constitutes a new material consideration for this application.
    Contrary to planning law, local consultation on the S106 agreements has not been arranged, despite our requests. As invited consultees, we have not yet been allowed to see the new proposed S106 agreement, which will need access and time for comment. Tanfield has produced a Parish Plan, which constitutes a new material consideration for this application. It clearly states that local people do not want more quarrying or more water-filled disused quarries in the parish. The Committee must give due weight to the views of local people.
  4. Cumulative impacts.
    The applicant's Environmental Statement does not address the cumulative effects of fifty years of quarrying on this small rural community, which is contrary to planning guidelines. (Note 10) The Draft Conservation Plan constituted a thorough and comprehensive background upon which to judge the cumulative effects of quarrying. The positive and negative cumulative effects on the local social infrastructure, landscape character, agriculture, heritage, ecology, local economy and community spirit should be incorporated in a full environmental assessment.
  5. Unjustified land-take.
  6. Lack of need.
    Tarmac claims that there will be a ‘damaging shortfall in supply’ if permission isn’t granted, which is hardly likely with today’s severe downturn in the construction industry. As it is completely in the hands of the mining companies to determine the 'land bank', it permanently has the county council over a barrel.

Conclusion.
All of these objections are supportable by law or by the attached policies and guidelines. Sufficient time should be allotted for due weight be given them by the minerals planning authority and its consultees.

The 26 August 2008 Officer Report to Minerals Planning Committee.

"The planning permission granted following the (2007) meeting has now been quashed owing to administrative errors in the Decision Notice". (This is untrue as legal objections were the cause of the quashing.) "These can be summarised as follows: Two additional conditions regarding hydrology/hydrogeology as recommended by the Environment Agency were not set out in the decision notice.
    1. Although identifying relevant development plan policies the decision notice did not set out a summary of these policies.
    2. A copy of the proposed S106 Agreement was not placed on the statutory planning register."

‘A number of consultees have expressed concern with regard to the impact of the workings and proposed wet restoration scheme on the landscape’.

It reminded Committee Members that the site in question was previously a ‘landscape enhancement area’ under the obsolete Hambleton District Wide Plan (so it follows that it must be in need of improvement), and although it had been changed through mineral extraction, the benefits to nature conservation and biodiversity mitigated the change. To emphasise the point paragraph 9.24 advises that ‘Part of the existing Nosterfield Quarry is already designated as a Local Nature Reserve’, which is not true.

The report goes on to say that ‘Both English Nature and the County Council’s Ecologist are of the opinion that the proposed development will not have any significant adverse effect on ecology’.

Officers failed to refer to Landscape Character Assessments which the County Council Commissioned as part of the process of determining which Mineral and Waste sites to propose for inclusion or rejection as preferred areas in the Minerals and Waste Development Framework. These were contrary to the suggestion that the landscape was in need of enhancement through remodelling.

Members resolved to grant permission subject to the S106 agreement referred to in the report and the draft agreement was shown below the report.

At the time there was no reason for concern or alarm over the tension between the BMP and the after-use plan because the ‘Proposed lake shorelines, residual water body configurations and lake marginal planting are designed to minimise their attractiveness to large flocking birds’. It is reasonable to assume that Members had been persuaded that this meant little by way of remodeling of the pit lakes, but more in the way of planting – passive control. There can be little doubt that they were mislead.

The restoration proposals for the 2008 application were essentially the same as the previous application submitted in 2006. No mention of deterring birds.

The restoration drawing in the June 2008 application was the same as the 2006 one, except that it had a different suffix letter in its title and had a different sluice outfall level. The difference in levels is of no consequence to this case.

The restoration plan showed large areas of shallow water and gently sloping banks providing good habitat for many species. The broad thrust of the restoration and after use was to create a wildlife haven.

There was no mention of the "Shoot the birds" BMP, although there was discussion on the MoD recommendations.

The documentation to this application and previous ones makes considerable play on consulting with the Swale and Ure Washlands Project (SUWP) and how the proposal will not impact detrimentally on the Nosterfield Nature Reserve. However Mr Simon Warwick who is the leading player in the SUWP, in charge of the Nosterfield Nature Reserve and a Trustee of the Lower Ure Conservation Trust states categorically that he has not been consulted throughout all of the Ladybridge proposals including the BMP.
On the 29 March 08 he wrote: - ‘Indeed, I should add that I have never set eyes on the Ladybridge planning application(s) documents, let alone read or commented on them – I have no doubt that we would have done if invited to do so’.

And, on Feb 18th 2009, relating to the BMP: - ‘Whilst we have not been party to the current planning application, we understand that the thrust of this is based on a Bird Management Plan; clearly this is a disappointing outcome, reflects the lack of strategic guidance and presumably indicates what the applicants feel are in their best interest.’

2008 13 November. In response to the Draft s106 agreement submitted to the CC on the 6th November 08, Bob Sydes, the NYCC’s Heritage Manager sent an email to Catriona Gaterel of the CC’s legal department dated 13 November 2008 09:37. At this stage he had not seen the April 2008 BMP (because it followed the signing of the S106), he was responding to text in the S106 when he commented: - ‘The revised wording in 5.5.1 represents a significant step forward to achieving an after-use strategy that meets a variety of outcomes and is expressly designed to ensure that we don't just end up with large bodies of open water’.

Apparently when the Heritage Manager gave that advice he had forgotten all about the grave concerns expressed in the memos dated 26th March 2007 and 29 January 2008 by the Principal Ecologist and the Principal Landscape Architect to the BMP which was part of the quashed permission.

On the 10th June 2009 the County Council issued a notice that the BMP had been approved despite all of the reservations, thereby allowing the development of further quarrying to commence. This was precipitated by the knowledge that in the interim between the granting of Planning Permission and the serving of the Decision Notice, objectors could add grounds to their case. Serving the notice was NYCC's way of attempting to close this door.

At the Judicial Review hearing on the 11th June 2009 two additional grounds are permitted by the judge despite rigorous attempts by defendant (NYCC) and interested party (Tarmac) to block this. The JR was adjourned and the defendant agreed not to attempt further development without application to the Court.

The CC’s Minerals Planning Officer in her statement to the court claims that FoTH did not object at any stage to the BMS. As the above shows that the "shoot the birds" BMS was kept secret, then how could we object to it? Our own expert advice was that with subtle management, the MoD requirements could be incorporated in the biodiversity plan put before us and the Planning Committee; there was no need to comment. Sadly Tarmac does not understand subtle management and the "shoot the birds" BMS was the result.

The reason for keeping it secret was that they knew that they would not get permission if the system knew of it.