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Financial Guarantees: Appropriate Delivery and Considerations regarding Mineral Restoration
GARETH MCCALLION, PRINCIPAL PLANNING CONSULTANT, QUARRYPLAN LIMITED Quarryplan on behalf of Creagh Concrete Products Ltd successfully challenged the imposition of a planning condition requiring a financial agreement to be secured regarding restoration of a mineral development site on planning legislation and policy grounds, together with arguments concerning equity and proficiency. The positive decision could have important and widely applicable effects or implications for the minerals industry. requirement for these types of condition. Furthermore, there is no implied direction with prevailing policy for Planning Authorities to seek ‘financial agreements’.
Overview
Planning Permission for the rationalisation of an existing approved sand and gravel site, for a lateral extension with deepening and restoration to agricultural after-use was granted by Mid Ulster District Council (the Council) in early 2020. The permission provided phased development and restoration landforms relating to both the existing and proposed mineral undertakings and a holistic restoration concept for the entire site. The permission incorporated mineral extraction areas conferred under planning permissions granted in 1983 and 2013.
The planning application sought to maximise reserve potential from an existing despoiled quarry site without significantly extending the approved footprint of the site. The proposal also promoted progressive phased development with a holistic restoration of the site. The designs were based on geological data collected by Creagh Concrete (the Appellant) through site investigation (boreholes). The phased working plans were assessed by a chartered landscape architect and a restoration scheme was provided accordingly. The restoration of the site could, for the first time in the quarry’s planning history, be implemented in accordance with planning conditions which provided assurances that the Council would not be left to assume the costs of the same. The Council approved the project. However, the approval was subject to a planning condition which required that, inter alia, “within 24 months of the date of the decision notice, the applicant must submit a guarantee
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・ Guidance: There had been no assessment of guidance by the Council with respect to the imposition of these conditions and the circumstances which justify the same. ・ Publicity and Equity: That the Council have acted unreasonably and unfairly with respect to the imposition of the conditions.
・ Proficiency: That the Council does not have the professional or technical capacity, nor the administrative framework in place to discharge the conditions. Gareth McCallion.
to cover all site restoration and aftercare liabilities for the written approval of Mid Ulster Council”.
The Appeal Challenge
An appeal was lodged with the Planning Appeals Commission (PAC) against the imposition of the condition (Appeal Reference 2020/ A0006) on the following grounds: ・ Legislative Ground: There is no prevailing legislation which permits these types of condition to be attached to mineral planning applications in Northern Ireland. ・ Policy: Neither the Local Development Plan (Draft Strategy), the Extant Area Plan, the Strategic Planning Policy Statement nor Planning Strategy for Rural Northern Ireland reference a
Legislative
The power for Planning Authorities to impose aftercare conditions to the grant of mineral planning permissions can be found in Section 53 of the Planning Act (NI) 2011. Section 53 does not legislate for ‘financial guarantees’ to be imposed on planning permissions for restoration/aftercare necessities. Rather, it provides the mechanisms for allowing reasonable steps for restoration and aftercare requirements to be stipulated on the grant of planning permissions for mineral undertakings. The steps required under Section 53 are plainly intended to be physical actions to be undertaken by the developer and not financial guarantees to secure restoration or aftercare of mineral development sites. Section 53(2) provides clarification regarding the distinctions under the legislation between a “restoration condition” and “an aftercare condition”. In this
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