Hyndford Quarry application, advice after Reporter’s report : EIR release

• is contrary to Scottish Planning Policy and the Scottish Historic Environment Policy and development plan policy in place to protect heritage assets;
• would cause serious physical and visual disruption within the buffer of the WHS and be detrimental to its setting;
• would adversely affect the Falls of Clyde Designed Landscape which is an essential part of the buffer zone;
• would create a harmful precedent;
• risks the removal of New Lanark from the list of World Heritage Sites.
• would detract from its outstanding features as a major tourist attraction and the appreciation of the Falls of Clyde.
• has potential for adverse impacts on various Scheduled Monuments;
• adversely impacts on the integrity and conservation interest of the designed landscape; would remove the natural topography and would result in an unacceptable impact to the stone wall, dating back to the 18th century.
• would reduce visitors and tourism spend.
• would destroy the area for recreational access;
• would destroy the drove road and part of the estate wall.
• would increase noise, dust and traffic in the area.
• provides inadequate restoration proposals which do not represent an enhancement.
• is not required since the existing quarry has reserves and there is no need for an extension.  

• there is a need for good quality sand and gravel products
• seeking alternative supplies elsewhere would increase travel costs
• the proposal would support existing jobs at the quarry
• the proposal has addressed all reasonable concerns
• there will be no impact on New Lanark.
• one objector also indicated that if the restoration proposals could be guaranteed they would not object to the proposal.

13. A number of call-in requests were received – including from Save Our Landscape and ICOMOS – UK, 298 pro forma letters addressed to the First Minister, and 133 individual letters addressed to Scottish Ministers. In addition, Cameron Buchanan MSP, Aileen Campbell MSP, Patrick Harvie MSP, Jim Hume MSP, Joan McAlpine MSP, Graeme Pearson MSP and Dave Thompson MSP requested or passed on constituent requests for the planning application to be called in. ICOMOS-UK, New Lanark Trust, The Garden History Society, Save Our Landscape and the Scottish Civic Trust asked Scottish Ministers to call-in. Sir William Lithgow also wrote to Scottish Ministers supporting the representations made by Save Our Landscape and added additional reasons for calling-in the planning application. Councillor Vivienne Shaw, who is a member of the Planning Committee and had proposed that the application be refused, wrote to Scottish Ministers requesting call-in.

14. During consideration by DPEA some 450 pro-forma letters were sent to the Minister for Local Government and Community Empowerment. At the same time 143 individual letters of objection were received by the Scottish Government. Many had previously written to the council objecting to the application or to Scottish Ministers asking the application to be called in.

15. Whilst fewer parties responded to the targeted re-opening of this case all of the responses received previously have been considered by the reporter. An additional comment of support was submitted by Clydesdale Community Iniatives, neighbours to Cemex Quarry.

Concern from UNESCO

16. ICOMOS-International, advisors to UNESCO on cultural World Heritage sites, wrote to Scottish Ministers in 2013 expressing concern that this application could potentially affect New Lanark WHS and its setting. In 2014, UNESCO World Heritage Centre advised that if consent is granted to the current application, it may consider bringing the case before the World Heritage Committee for examination. The Scottish Government Culture and Historic Environment Division (CHED) undertake the State Party role in Scotland in relation to World Heritage. They coordinate updates to UNESCO on the process and timescale for Ministers’ determination of the application and assurances that the case is being handled in full accordance with legislation, via the UK Government Department for Digital, Culture, Media and Sport which holds the formal State Party role. A State of Conservation Report on New Lanark was made to the World Heritage Committee in 2014. The decision of the Committee set out two requirements: the need for a detailed Heritage Impact Assessment (HIA) to be undertaken to define the potential impact of the extraction scheme, in line with ICOMOS Guidelines on HIAs for cultural World Heritage properties; and the need for the setting of the property to be more adequately defined, particularly in relation to how it supports the OUV of the property. The decision of the World Heritage Committee in 2016, in receipt of a report that the Scottish Ministers were minded to reject the western extension, was to formally note with satisfaction the measures taken to address its previous requests to mitigate the threats on the OUV of the World Heritage property.

Representations made by the Working Group

17. Save Our Landscapes (SOL)/New Lanark and Falls of Clyde Working Group was formed in 2011 by people living in and around Lanark to protect and promote the area around New Lanark and the Falls of Clyde. They have campaigned against the proposal and welcomed Ministers’ 2016 decision to only allow the southern extension and refuse the western extension. They highlight that the applicant made a public commitment in its 2015 Sustainable Development Report and on the UNESCO website as follows “CEMEX fully recognises the need to protect the OUV of World Heritage sites and that these sites should be considered no go areas and nothing should impinge on their settings and buffer zones.” This commitment has not been publicly withdrawn in its 2016 report. The Working Group have stated that it is at a loss as to the reason for the continued quest by the applicant for consent for the western extension in view of this undertaking and the concerns of UNESCO. In September 2016, Historic Environment Scotland published “Managing Change in the Historic Environment: World Heritage” in its ongoing series of guidance notes on managing change. The Working Group highlight that this reflects the terms of the UNESCO Operational Guidelines and confirms that adverse impacts on the OUV of the WHS from development within the Buffer Zone (or setting generally) need not be confined to direct visual impacts on the WHS itself. The working Group maintains its position that the proposal is contrary to Local Development Plan Policy 15, NHE1 and MIN2 given the harm to the international designation and its setting (buffer zone). In their opinion, the previous reporters erred by attempting to interpret OUV too narrowly, and ignoring the expert guidance of ICOMOS-UK and the ICOMOS World Heritage Advisor that, “A full understanding of the attributes and their relationship to OUV emerges from details in the nomination dossier and the ICOMOS evaluation.”

Representations made by the applicant

18. The Applicant states that without being able to extract course material within the western extension area, the viability of the remaining deposit at Hyndord is questionable. The proposed development would retain 21 existing jobs and 60 indirect jobs. They argue that there is a lack of alternative options as the course material is not found in the finer materials at greater depth and is not found in sufficient quantities at other locations or in the southern area. In relation to the WHS, the applicant considers that their restoration proposals remain the only practical route to achieve significant improvements in line with the aims of the New Lanark Trust. The applicant acknowledges that there would be a change in the Designed Landscape but has designed the proposal to protect the Designed Landscape. They also note that the impacts resulting from the development will be limited to the Bonnington element of the designed landscape, which has already lost the majority of its parkland features.

Account taken of consultations and representations

19. South Lanarkshire Council took all representations into account and were minded to grant the application. Historic Scotland did not object. The redetermination reporter has taken acount of all the representations received. Whilst the reporter appreciates the concerns and the perceived sensitivity of this location, she is satisfied that compliance with the development plan can be achieved and that there are no material consideration sufficient to justify a different conclusion. 

Reporter's conclusions and recommendation

20. The reporter has taken account of the updated development plan context, since the reporters’ last recommendation in 2016. The development plan now comprises the Glasgow and Clyde Valley Strategic Development Plan 2017 (Clydeplan), and the adopted South Lanarkshire Local Development Plan 2015. The Minerals Development Plan has not been reviewed since the adoption of the Minerals Local Plan in 2012. The reporter has assessed the proposal against all relevant planning policy and material considerations including: the minerals demand supply; heritage and landscape impacts; other matters including environmental assessment; economic benefits; ecology; and impact on visitors and tourism.

21. Overall, the reporter finds that subject to the proposed mitigation and restoration that there would be no significant effect on heritage assets and that the proposed development complies with the provisions of the development plan and does not consider that there are any material considerations that would justify the refusal of planning permission.

22. The reporter’s conclusions (as set out in Chapter 6.23 of the report) are that the proposed development would:

• contribute to overcoming an identified shortfall in the minerals reserve (land-bank);
• protect and preserve the character, integrity and quality of the New Lanark World Heritage Site, its setting and Outstanding Universal Value;
• avoid compromise to the integrity of the Falls of Clyde Designed Landscape, its character and the objectives of its designation;
• safeguard listed buildings, their settings, and any features of special interest they possess;
• preserve or enhance the character or appearance of the New Lanark and Falls of Clyde Conservation Area;
• protect scheduled ancient monuments and their settings;
• not adversely affect the overall quality of special landscape areas;
• not harm nature conservation interests;
• support sustainable economic development; and
• provide an acceptable restoration scheme.

 23. Consequently the reporter recommends that Ministers intimate their intention to grant planning permission subject to 47 conditions, a legal agreement and planning obligations. The suite of recommended conditions is intended to control the phasing of the proposed development; provide a mechanism to approve the progressive restoration and enhancement proposals for each phase of the development; give a means of controlling the aftercare arrangements (including a long-term management plan); and provide financial guarantees to cover the site restoration and aftercare liabilities in the event that the operator is no longer able to fulfil this requirement. The proposed conditions are suspensive, meaning that the planning authority must approve details before works can begin on each phase of the proposed development. The reporter considers these controls to be satisfactory and important to enable control over the timeframes for each phase and the associated restoration which is particularly important in the context of the western extension.

24. The reporter also recommends a legal agreement for contributions to cover extraordinary wear and tear on the public road and cycle lane network; and S75 planning obligations covering an undertaking to cease, and not restart, operations under the current planning permission; and an undertaking to provide a long-term management plan (as part of the aftercare of the site) once quarrying has ceased on the application site; as well as the setting up of a liaison group to help guide the future management of the site. The applicant has also indicated a willingness to contribute to the Aggregates Quarry Fund. This is a voluntary matter to be arranged between South Lanarkshire Council and the applicant.

25. The Reporter states at 4.119 that she shares the concerns of the council and previous reporters and concludes that if Ministers consider the western extension is unacceptable and the southern extension is acceptable, it would be better for the current proposal to be refused in its entirety. It would then be open to the applicant to design and develop a separate application for the southern extension. 

PAD assessment - advice to Ministers

26. Taking all the issues into account, a judgement on the application comes down to the degree to which the proposals are in accordance with the terms of the development plan, and other material considerations.

Mineral supply and demand

27. Scottish Planning Policy (SPP) and the development plan support maintenance of at least a 10 year land bank of minerals reserves recognising the important contribution to the economy. SPP requires that the planning system should minimise the impacts of extraction on local communities, the environment and the built and natural heritage. Clydeplan Policy 15 – Natural Resource Planning requires that proposals should balance economic benefit against the protection of the environment and local communities from their potential impacts.

28. The minerals supply is disputed, but the reporter’s conclusion rests on there being a current 10 year land-bank reserve of around 11.8 million tonnes. The extent of minerals demand is also in dispute and the reporter rests on it being somewhere between 11.2M tonnes and 11.7M tonnes over the 10 year period. Even assuming for the most pessimistic levels of demand (11.2M) the reporter considers there is only just a current 10 year land-bank signalling clear difficulties in its continued maintenance. The reporter considers it reasonable to assume potential for demand to rise to 17 million tonnes over the ten year period and to plan accordingly. The

reporter therefore concludes that in planning for economic recovery, there is policy support for increasing the available mineral reserve in South Lanarkshire, however that does not set aside the due consideration of other relevant planning policies and material considerations.

29. While SPP provides a policy support for ten years supply, this does not in itself create a presumption in favour of all developments that may contribute to the minerals supply and it is clear that the nature of landbank information is imprecise. The reporter’s conclusion on supply reflects significantly higher demand than has been recorded recently (1.2 M tonnes per annum based on August 2017 returns). It is noted that Clydeplan has reported they have a 12 year land-bank over their whole area. There is also potential for new works to come forward over the ten year period which would affect supply. The reporter acknowledges that but, given uncertainties around consenting, capacities and the rate of extraction, sets that aside. Those in opposition to the western extension have argued that there is no shortage of sand and gravel in South Lanarkshire but any perceived shortage could be remedied at other more suitable sites not in a WHS buffer zone.

30. The minerals policy support needs to be considered in relation to community and environmental impacts in drawing conclusions around the degree to which the proposal accords with the terms of the development plan and other material considerations.

Impact on the Outstanding Universal Value (OUV) of the New Lanark WHS and buffer zone

31. The reporter has given consideration to the impacts on the historic environment and landscape and appropriate mitigation and restoration in the round before coming to a conclusion on consistency with the development plan and acceptability overall. The principal parties agree that the proposed southern extension does not raise concerns relative to the WHS or its setting. The dispute relates to mineral extraction in the proposed western extension which is identified as being within the buffer zone of the New Lanark WHS and the Falls of Clyde Designed Landscape and Special Landscape Area.

32. The buffer zone at New Lanark is designed to comply with UNESCO guidance that buffer zones should include the immediate setting of the site, important views, and other areas or attributes that are functionally important as a support to the Site and its protection. Designation of the buffer zone takes account of key views into and from the Site as well as important relationships between the site and other buildings and land in the surrounding area. The purpose of the buffer zone and sensitive area is to indicate areas where development proposals require careful consideration by developers and decision makers to determine whether they are likely to significantly impact the WHS, its OUV, or its authenticity and integrity. 

33. The reporter’s conclusions, in summary, are that significant adverse effects would be localised, and time limited over a period of 8 years during extraction at the western extension and confined to a relatively small area of the Bonnington Estate within the wider Falls of Clyde Historic Designed Landscape and the Special Landscape Area. The reporter considers there would be no adverse visual effect on the WHS and a time limited adverse effect on part of the Historic Designed Landscape (the Bonnington Estate). The reporter concludes that development in this  location albeit within the buffer zone, is not part of the visual setting of the WHS, and that any inter-relationship of the development with the WHS and its OUV would be minimal and indirect. The reporter states that the proposal would not impact on the integrity of the WHS or the Historic Designed Landscape; and the proposal avoids harm to listed buildings, the conservation area, scheduled ancient monuments or their settings. The reporter’s overall conclusion in relation to heritage and landscape issues, is that the proposal, subject to mitigation, would achieve compliance with Local Development Plan Policies but that there would be some time limited conflict with the Minerals Local Plan 2012 in so far as it relates to the Historic Designed Landscape.

34. The reporter has considered the UNESCO Operational Guidelines as published in July 2017 and finds nothing in this document to alter her conclusions.  The reporter considers that the buffer zone is a planning tool rather than an additional layer of protection or a designation in its own right. A significant impact on a buffer zone would not automatically translate to a significant or unacceptable impact on the objectives of the designation. The reporter has also read the expert statement provided by the Working Group regarding the interpretation of OUV and has taken these wider considerations into account. The reporter advises that this does not alter her conclusions which broadly reflect those reached previously by the council, HES and the reporters who assessed this case previously. The reporter notes that the World Heritage committee welcomed a “no go” commitment by CEMEX and the Scottish Government’s decision (at that time) to refuse the western extension. However it is unclear to the reporter whether that support was based on a full assessment of the likely effects or rather an assumed threat and a statement welcoming any decision to mitigate such a threat. However, regardless of how their decision was informed Ministers must consider this application on the basis of the evidence presented. On the basis of that evidence the reporter finds nothing to suggest the proposals are a threat to the OUV of the New Lanark WHS. 

35. The reporter considers that subject to the proposed mitigation and restoration, there would be no significant effects regarding the introduction of quarry operations close to the WHS and within its buffer zone and a Historic Designed Landscape. Ministers should also note that the New Lanark Management Plan provides a basis for the protection and enhancement of the site for future generations and against that context 8 year disturbance may seem relatively small in scale. However, there can be no certainty that 8 years, which takes the site to its existing consenting period, will be sufficient to complete restoration and evaluate final impact since extraction rates are linked to market demand. Minister’s previously took a precautionary approach to disruption within the more sensitive western extension and were of the view that 8 years of acknowledged disruption, with the potential for a longer period, on a sensitive site is not acceptable.

Acceptability overall with the development plan 

Southern Extension 

36. The southern extension is not located within the World Heritage Site (WHS) or its buffer zone and that part of the scheme is not in contention. It is recommended that you accept and agree with the reporter’s conclusions that this part of the proposed development does comply with the development plan and that for this part of the proposed development there are no other material considerations to indicate that the decision on this part of the application should be made otherwise than in accordance with the development plan.   

37. It is recommended that you therefore accept all of the reporters findings in respect of the southern extension including the conclusions that it would make a substantial contribution to the mineral supply to provide 1.4 million tonnes of mineral, and any adverse impact on designations or assets would be avoided and there would also be no significant adverse impact on the remains of non-designated assets.

Western Extension

38. The proposed western extension is considered to be the focus of concern and impacts given the relatively greater sensitivity of this area within a World Heritage Site buffer zone, a Designed Landscape, a Special Landscape Area, and in proximity to a number of other heritage designations and assets. There are development plan policies both in support and against the proposed western extension and a judgement on whether the western extension is in compliance with the development plan is accordingly finely balanced.  

39. You may not wish to accept the reporter’s view that the western extension is in accordance with the development plan as it has adverse impacts on designations of national importance. Any disruption to this sensitive landscape, albeit time limited and, as suggested, for a period up to 8 years, may be considered to represent a significant and unacceptable adverse effect which renders the western extension element of the proposal to be in conflict with key development plan policies. Support for mineral extraction is linked to consideration of the likely adverse impact on community and heritage interests. As indicated in paragraph 31 above, given the imprecise nature of the demand and supply of minerals and the link to market demand there may be no guarantee that once work commences, extraction and associated land restoration operations will be completed within the 8 year period referred to. Given the acknowledged adverse effects of the development within the western extension on the Bonnington Estate and wider Falls of Clyde Historic Designed Landscape and the Special Landscape Area – albeit for a temporary period, Scottish Ministers are entitled to consider that these adverse impacts on assets that include a designed landscape within the buffer zone of a world heritage site are unacceptable and that accordingly the proposals are not in compliance with the development plan, particularly Policy 15 in Clydeplan and the 2012 Minerals Plan.

40. Even if you do consider that, on balance, the western extension was supported by the development plan, you may consider that there are other material considerations which are such that planning permission should not be granted for the western extension. These include the impacts and disruption within heritage designations identified in the environmental information; World Heritage Issues in Scotland and the intrinsic value of the international designation; the National Planning Framework 3 (NPF3) and Scottish Planning Policy principles; and stakeholder concerns about the western extension. Not all matters such as minerals supply, duration of extraction, impacts on heritage interests are precise in nature but there remains widespread public concern about adverse impacts of the western extension notwithstanding the extensive period of deliberation which the planning process has provided. You may wish to retain a precautionary approach to the protection of assets that include a designed landscape within the buffer zone of a world heritage site.

Conclusion and recommendation  

41. This is a complex application with an extensive history. Depending on your decision, it is likely that either the appellant or interested parties may seek to challenge the decision in the Courts.  

42. A decision on this application comes down to a judgement on the development plan position and other material considerations. In this case, the reporter has again recommended that the case should be granted in full, concluding that the entire proposal (both the southern and western parts of the scheme) is in accordance with the development plan and finding no material considerations to refuse the application.  

43. A decision to grant in full would be inconsistent with Ministers’ previous decision. At the time of the previous decision, Ministers disagreed with the reporters’ conclusions that the proposed development would not adversely affect the conservation interest or integrity of the New Lanark WHS or its setting. They also considered that a period of 8 years of designed landscape disturbance before restoration was unacceptable. Whilst there has been a new LDP adopted since the previous decision, there has not been a significant change in policy and the issues that Ministers were previously concerned about have not been resolved.

44. The council and reporter are of the view that refusal would be preferable to a partial approval and it would be better for the applicant to prepare a revised application for the southern extension only. We do not think that this should be a significant element to the Ministers decision making process. The argument for it being “better” to refuse seems essentially to be that it would be easier to deal with a new application than to sort out conditions for only the southern extension. In any event, the last decision already dealt with the issue of granting only the southern extension with a set of proposed conditions by DPEA. Also, the applicant has invested significant time and money pursing this application – resubmitting a separate application for the southern extension may give messages contrary to those we are promoting through the Planning Bill about an efficient planning process.    

45. Overall, we consider that any decision will be contentious and likely to result in legal challenge. Whilst the Reporter covers the issues of impact on heritage designations and the temporary nature of extraction in detail, there is no significant change in policy since Ministers’ previous decision. It is recommended that Scottish Ministers maintain their position that the western extension is contrary to the development plan and that there are other material considerations to reinforce the view that the western extension should be refused. It is therefore recommended that we intimate the intention to grant permission for the southern extension only, and to refuse permission for the western extension. A draft intentions letter is attached at Annex B.

46. If an Intentions letter is issued granting only the southern extension, it will require to be referred back to DPEA to consider appropriate conditions and a legal agreement.  

Sensitivities/ Presentation

47. Since receipt of the redetermination report, Ministers have received 28 letters and there have also been over 6,000 campaign postcards submitted to the First Minister opposed to quarrying in the buffer zone of the WHS. There has been media coverage opposed to the development including being featured on the BBC, and newspaper articles. The points of objection reiterate those summarised above with the additional grounds submitted by Calderglen Heritage highlighting that since Ministers’ original decision, an ancient route has been discovered which crosses the proposed site, and represents a route of Christian and Pre-Christian pilgrimage worship concerning Tinto, and dating at least to the Bronze Age. Whilst we have noted this information, we have not given any weight to it in our recommendation.

48. Given the level of public interest, there is likely to be significant media interest in the decision and we will liaise with Comms as required.

49. Any person aggrieved by the decision can apply to the Court of Session within 6 weeks of the date of the decision notice.  

50. There have now been two appeals by the applicant’s solicitors to the Information Commissioner, for information to be released which showed that the Scottish Ministers had previously departed from the recommendation of officials to approve the Hyndford Quarry development in its entirety. PAD have contributed to a subsequent FOI appeal and all information with the exception of legal advice was released in September 2018 following the decision by the Scottish Information Commissioner.

51. In light of her constituency interest, the Cabinet Secretary for Communities and Local Government has not been included on the copy list of this submission. Ms Campbell will receive a copy of the decision letter for her information once issued.

Conclusion

52 We invite you to consider the details of this case set out above, and agree with our recommendation to intimate your intentions to partially approve the application, granting permission for the southern extension only.

Chief Planner

Planning and Architecture Division
18 December 2018

Perm Sec
DG Education, Communities and Justice
DG Economy
Director
Director for Culture, Tourism and Major Events
Deputy Director, Natural Resources
Assistant Chief Planner
Assistant Chief Planner
Acting Chief Reporter
DPEA
Planning Decisions
Planning Decisions
Planning Decisions
Planning Decisions
Planning Decisions
Planning Decisions
Planning Decisions
Planning Decisions
Environmental Assessment / Minerals
Culture and Historic Environment
Culture and Historic Environment
Solicitor to the Scottish Government and PS
Location Director
SGLD
SpAD
SpAD
Comms CSSE
Comms
Comms
Comms

ANNEX B

REASONS FOR NOT PUBLISHING INFORMATION

Exceptions apply:

Exceptions under Section 11(2) of the ENVIRONMENTAL INFORMATION (SCOTLAND) REGULATIONS 2004 (EIRs) applies to some of the information you have requested.

Regulation 11(2) - applicant has asked for personal data of a third party

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception