Following considerable confusion over the past few weeks about reports of continuing extraction works at the former pit heap site in Hesleden Stacey and I asked the planning department last week to issue a position statement on the current status of enforcement measures to hold the site operator to account.
Specifically we asked for more information about what the council is willing or able to do about the impact of the development on the community. At the county planning committee meeting held on 11 September, alongside residents from Hesleden, we raised our concerns about how the extraction and removal of limestone, sand and combustible material was having an unacceptable impact on the community. We remain concerned about the impact of any ongoing works on site, and we have been consistent over the years since the development began in urging the council to take whichever enforcement measures were necessary to mitigate any associated danger and risk to public health.
The planning department's position on this matter is reproduced below in full. Please direct any comments, queries and concerns to the email address shown at the end of the statement.
Hesleden Colliery Spoil Heap Site Note
Planning history
There have been two planning permissions granted for mineral extraction at the site and one planning application which has been refused.
Planning Permission No. DM/14/00519/MIN was granted in 2016 for the reclamation of former colliery spoil mound to extract coal spoil, reprofiling of mound on completion of works and landscaping works. This permission allowed 24 months for working and restoration of the site. This planning permission has ceased to have effect and no enforcement action can be taken against this planning permission.
The original planning permission was subsequently varied under Planning Permission No. DM/19/02315/VOCMW for the variation of Condition 6 (Time limit for mineral extraction) of Planning Permission DM/14/00519/MIN for extension of time of mineral extraction until January 2022. This permission allowed for a 2 year extension of time for working and restoration of the site until January 2022. This permission also allowed for the export of 4,000m3 of limestone. This is the planning permission which is still extant, and operations at the site are in breach of.
Planning Application No. DM/22/00010/MIN for the continued restoration of colliery spoil heap, including extraction, processing and export of combustible material, limestone and sand for a period of 10 years was refused by the County Planning Committee and the decision notice was issued on 11 September 2023. This was a planning application and not a planning permission and there are no planning conditions associated with that application to be enforced.
Right of appeal against refusal of planning permission
An appeal against the refusal of planning permission has to be made to the Planning Inspectorate within 6 months of the date of the issue of the refusal notice. This was issued on 11/09/2023, so the appeal has to be made by 11/03/2024.
All planning and enforcement appeals are made to and determined by the Planning Inspectorate on behalf of the Secretary of State, entirely sperate to the Council.
At this moment in time the Council is not aware that an appeal has been submitted but expect one is to be made in the very near future.
Enforcement action
The operator has been in breach of conditions attached to the original planning permission (as varied in 2019) since 31 January 2021 as that was the date by which the operations were required to cease. As a planning application had been submitted to extend the life of the site and extract other minerals the Council took the decision not to consider enforcement action until that application was determined.
Following refusal of planning permission, the Council issued a planning Enforcement Notice on 25 September 2023, in respect of the breach of conditions of Planning Permission No. DM/19/02315/VOCMW because this is the extant planning permission for the site.
No enforcement action has been taken on the refused planning application because this was a planning application and not a planning permission and there are no planning conditions associated with that application to be enforced.
The Enforcement Notice will take effect on 27 October 2023. There is a legal requirement that the date it is effective from must be at least 28 days from the date the notice was issued. A few extra days are added for delivery via the postal service.
The Notice requires the recipient to:
1. Permanently cease the extraction of limestone, sand and combustible
material from the Land and in accordance with Condition 4 of Planning
Permission DM/19/02315/VOCMW. The time for compliance is within one day
from the date on which the notice takes effect.
2. Submit the restoration and aftercare schemes for the Land in accordance
with Condition 3 of Planning Permission DM/19/02315/VOCMW. The time for
compliance is within 3 months from the date on which the notice takes effect.
The Notice was posted via Royal Mail to those
parties with an interest in the land. These being:
- B&S RECYCLING LIMITED
- DRS LAND REGENERATION LTD
- Haven Power Limited
The Notice was also emailed to:
- The planning agent
- The leasehold owner/site
operator.
Right of appeal against the enforcement notice
When the enforcement notice comes into effect on 27 October 2023 the steps in the notice must be followed. However, prior to the Notice coming into effect those served have the right of appeal to the Planning Inspectorate. If an appeal is made, this has the effect of suspending the Notice and operations could continue until the appeal is determined.
It is highly likely that appeals against the refusal of planning permission and refusal of planning permission will be made at the same time. The planning merits to be decided by the Panning Inspectorate on the appeal against refusal of planning permission are not materially different to those which would arise on a ground (a) appeal against the Enforcement Notice so it is extremely likely that the Inspectorate would determine both appeals at the same time. An appeal against the Enforcement Notice results in the suspension of the notice until disposal of the appeal and the legislation affords the applicant/operator these rights of appeal. There is nothing that the Council can do on these points.
At this moment in time the Council is not aware that an appeal has been submitted but expect one is to be made in the very near future.
Notification of appeals
The Planning Inspectorate will inform the Council if appeals against the refusal of planning permission and the enforcement notice are made.
The appeals process requires information to be submitted at various dates. The Planning Inspectorate will provide these dates when notifying the Council of any appeal. The Planning Inspectorate endeavours to determine every appeal as efficiently as possible and aims to do so in line with its performance targets.
Details of the appeals process, and the Planning Inspectorate’s performance targets can be found at Appeals - GOV.UK (www.gov.uk)
The Council will keep residents informed of the key dates once we receive notification of the appeals.
It should be noted that if an appeal against refusal of planning permission is made then those who made representations on the application will be notified. In the case of the enforcement notice it will be the local Councillors because enforcement action has not been taken as a result of complaints.
Site working
In the period until appeals are made the Council would not take further enforcement action and the site can continue to work.
The site can also continue to work if appeals are made, and this would likely continue until the appeals are determined.
Working is only in breach of the enforcement notice if an appeal against the notice has not been made by 27 October 2023.
The Council could only seek to legally stop the work if it was felt it was causing the most serious level of planning harm to justify an injunction and/or a stop notice, which is not considered to be case here.
Vehicle movements
With regard to vehicle movements, Planning Permission No. DM/19/02315/VOCMW permits 44 (22 in and 22 out) per operational day Monday to Friday and 22 (11 in and 11 out) on Saturdays. The refused planning application proposed 20 (10 in and 10 out) per operational day Monday to Friday and 4 (2 in and 2 out) on Saturdays. It is likely that the operator would continue to work up to the higher number of vehicle movements as that is the only extant planning permission for the site.
Footpath No.24 (Monk Hesleden Parish)
There has been a query regarding Footpath No.24 (Monk Hesleden Parish). This footpath is subject to a Temporary Closure Order and the Secretary of State has given approval for a further 6 month period of closure.
Queries
Queries regarding this matter should be directed to Claire Teasdale, Principal Planning Officer claire.teasdale@durham.gov.uk
