THE OMBUDSMAN (NI) ORDER 1996
201000848 & 201000849
INVESTIGATION REPORT
UNDER ARTICLE 16 (1) (A)
GUIDANCE NOTE ON CONFIDENTIALITY AND PRIVLEGE
Confidentiality
As Ombudsman, I am mindful of the requirement of Article 13(3) of the Ombudsman
(NI) Order 1996 to the effect that every investigation is conducted in private. Under
this legislation, I have no general power to share information with the public and I am
in fact barred from disclosing any information obtained
for the purposes of an investigation except in very limited circumstances.
Consequently, it is my view that the information in this Report is confidential until such times as it is published by me in accordance
with the provision
of the above Order. Although ultimately a matter for
the Court to decide in any case, I consider
that any unauthorised publication of this report, or its contents, may breach
confidentiality.
Privilege for Certain Publications
While
I enjoy absolute
privilege for the purposes of the law of defamation when I publish my Report to the Northern
Ireland Assembly, please note that this privilege
does not extend to the publication by any person of this Report.
Report Summary
This complaint
relates to an opencast gold and silver mining facility
on land at Cavanacaw Upper, Botera Upper and Tattykeel
Omagh and, what the complainants
believe to be, the lack of appropriate enforcement action taken by PS in response to breaches of planning permission. Following an extensive
public enquiry, approval for the mine was given by PS in May 1995. Preparation work for the facility commenced in May 2000 and ore processing
began in January 2007. In May 2008 trucks began
removing considerable volumes
of rock from the mine which, the complainants believe, were to be used in local roadworks at Ballygawley. Residents
complained to PS at this time. The complainants believe
that PS failed to take enforcement action commensurate with the breach which had a considerable impact on their amenity. The complainants indicated
to me that, at its peak, up to 145 trucks per day were
leaving the site. They also complained that PS failed to effectively monitor the site and
allowed the operator
to alter the site without the required
planning approval. The complainants also raised concerns
about the handling
by PS of current applications to rectify the breaches
of planning control/
conditions at the mine.
Findings
My investigation indentified, what I consider
to be, a major system failure by PS in its response to complaints from residents about the removal of rock from the mine. Indeed,
it took PS in excess of one year to issue an enforcement notice requiring the company to cease removal
of the rock. PS permitted the company to remove in excess
of 8000 truck loads of rock, by the operator's own admission, without any assurance that there remained
sufficient rock to restore the site to its original condition. I also found that PS failed to monitor whether the company operating the site was complying with planning conditions, a failure I consider represented maladministration.
Given the considerable loss of amenity, inconvenience and severe distress to the complainants during the removal
of rock, I recommended that the Chief Executive
personally issues a letter of apology, along with a consolatory payment of £10,000 to
each of the three complainants.
I also recommended that a reassessment of the present position of the mine be
carried out within six months of the date of my report and that PS should report its findings both to me and to the complainants.
I am aware that planning applications are currently being considered by PS to regularise a number of the breaches
of planning condition/ control. Whilst it is not my
role to interfere in the planning process,
I can fully understand the complainant's
concern given the significant failure
of PS to meet its statutory responsibilities up to this point. The complete
absence of effective intervention has resulted in a complete lack of confidence by the complainants in the planning
process and a resultant
scepticism on their part that their current
concerns will be meaningfully considered by PS.
Introduction
1. I received
a complaint from xxxxxxxxxxxxxxxxxxxxxxx (the
complainants) regarding the actions of the Planning
Service (PS). Their
complaint relates to an opencast
pit for precious metal mineral extraction
operated by Omagh Minerals
Ltd (OML) at Cavanacaw, Omagh and the failure of PS, in their view, to ensure compliance
with the original planning approval (K/1992/0713) for the mine.
2. In
particular, the complainants believe PS failed to adequately monitor the site and when OML began removing
large volumes of rock from the mine, PS
failed to take appropriate enforcement action.
3. I am aware that on 1 April 2011, due to an organisational restructuring, the Planning Service (an Executive Agency of the Department of the Environment)
ceased to exist and its function
transferred to the newly created Planning & Local Government Group within the Department
of the Environment. In view
of the fact that the matters about which
this complaint relates, occurred
prior to
1 April 2011, I shall use the designation 'Planning Service' in this report.
Role of the Ombudsman
4. The Ombudsman
(NI) Order 1996 gives me the authority to investigate
complaints from people who claim to have sustained injustice
through maladministration by government departments and their agencies such asPS. It is
important that members
of the public who bring a complaint to me fully
understand the limitations of my role in
planning matters. It is not my role to question the merits of professional or technical decisions
such as those made by
planning officers in the exercise of
their discretion, unless there is evidence of maladministration in the reaching of such decisions
or the decisions made were perverse.
I therefore look to see
if there is any evidence of negligence, improper consideration or improper
use of powers. Generally I would only question a discretionary decision if it was clearly at variance with that which could be expected in the light of all the facts.
In other words it must be so
unreasonable that no reasonable person
would take it.
5. My authority
extends to the investigation of the administrative actions of PS.
Furthermore, disagreement
with a professional or technical decision
does not in itself constitute evidence
of maladministration, however unpopular
or at variance that decision may be with what some interested party, or indeed I,
might consider appropriate. Unless I find evidence
of maladministration which I
consider has caused injustice to a complainant I cannot uphold a complaint.
Legal and administrative background
6. The Department
of the Environment is responsible for planning and managing
development in Northern Ireland. The Department's statutory planning
functions are primarily provided for by the Planning (Northern
Ireland) Order
1991.
Planning Policy Statement (PPS) 9 -The Enforcement of Planning
Control
7. PPS 9 sets out the general
policy approach that the Department follows in taking enforcement action against unauthorised development in Northern Ireland.
8.
Paragraph 3.2 of PPS 9 advises how the Department will be guided in
considering whether
formal enforcement action is an expedient remedy for
unauthorised development by the following:
• Whether the breach of control would:
(a) be clearly
contrary to planning
policy; or
(b) unacceptably affect public amenity
(including road safety)
or the existing use of land and buildings
meriting protection in the public interest.
•
The extent of the breach. The Department will only pursue enforcement
action commensurate with the breach of planning
control to which it
relates. For example, it will usually be inappropriate to issue an
enforcement notice for an insignificant or technical breach of planning
control which has no material, adverse planning
implications. However,
in those cases where harm to public amenity has occurred, or is likely
to occur, then formal enforcement action will normally
be promptly initiated.
•
The willingness of the offender(s) to remedy the breach of control
voluntarily. Where initial
attempts by the Department fail to persuade the offender(s) to remedy the harmful effects of unauthorised
development voluntarily, protracted negotiations will not be allowed to
hamper or delay whatever formal enforcement action may be required
to make the development acceptable on planning
grounds, or to compel it to stop.
• The statutory
time limits for taking enforcement action.
•
The integrity of the development control process depends
upon the readiness of the Department to take effective
enforcement action when it is appropriate. Public respect for the development control system is quickly undermined if unauthorised development, which is
unacceptable on planning
grounds, is allowed to proceed without any
apparent attempt to intervene before serious harm to public amenity
results. The Department will therefore
assess in each case which
power (or mix of powers) is best suited to dealing
with any particular apparent or actual breach of control to achieve a satisfactory and lasting remedy. Prompt
initiation of enforcement action will normally be
necessary to prevent an unacceptable breach of control becoming well established and more difficult
to remedy.
•
The Government remains committed to fostering business
enterprise and the Department
will bear this in mind when considering how best to deal with unauthorised development by small businesses. However, in order
to maintain a fair and safe trading environment, business activity must take place within the context of current planning policies
and without unacceptable harm to public amenity. Accordingly in certain
cases effective enforcement action may be the only appropriate remedy for unauthorised business
where there is no willingness on the behalf of
operators to negotiate a satisfactory solution.
9. Paragraph 7.1 also advises: "Where, in
the view of the Department, unauthorised development is causing serious harm to public amenity
and there is little likelihood of the matter being resolved
voluntarily or through negotiations, the Department will normally take vigorous enforcement action. This may include the service
of a stop notice with, or on the foot of, an enforcement notice, or, where circumstances permit, an injunction to remedy
the breach urgently
in order to prevent further
serious harm to public amenity".
10. Most importantly, paragraph
9.1 of PPS9 sets out the Departments role in the enforcement of planning control over mineral working. It states: "Unauthorised
mineral workings can pose particular enforcement problems in terms of the
occasionally irremediable nature
of the working, the speed at which significant damage to the environment can be caused, as well as the fact that there will
be no agreed arrangements for the restoration or after-use of the land.
Consequently in cases where formal
enforcement proceedings are necessary
the Department will take prompt action and will
be guided by the advice set
out in section 7.0 of this Statement
to ensure that the possibility of irreparable
environmental damage is minimised".
Investigation
11. have reviewed
all relevant correspondence from the complainants and PS.
Additionally, I arranged
for my Director of Investigation and my Investigating Officer to meet with the complainants. I also arranged for my Investigating Officer to meet with staff from PS Minerals
Unit, Strategic Projects Division and also to inspect the enforcement files that relate to this complaint.
I also obtained extensive
documentation from PS including the papers from the
public enquiry held to consider
the original application (K/1992/0713) and the
Environmental Statement
which accompanied the application. I also examined
the relevant legislative framework. The responses
from the PS Chief
Executive (CE) to my enquiries are included at Appendices 2, 4 and 6. For
reference, I have included
the questions posed to the CE by this office at
Appendices 1, 3, and 5. The complainants raised a number of issues in their complaint which, for the purposes
of this report, I have set out under the headings below (in bold), my findings of fact and conclusions.
12.
have not included in this report every detail investigated, but I am satisfied that no matter of significance has been overlooked.
(a) PS failed to issue a stop order when the company comprehensively redesigned the entire site layout without
planning permission and failed to require the company to submit retrospective planning applications to rectify
the breaches;
13. The complainants told me that OML completely
redesigned the entire site
layout and that no planning application was made despite
complaints from residents in the area. They also believe
that PS took little or no action against
the company for these breaches
of planning permission. The complainants told me that the changes at the site included changes
to the site access, tailings
pond, internal roads, Kerr vein and stockpiles.
14. By way of background, I noted that the original planning
application (K1992/0713) was approved
on 23 May 1995 following
an extensive public enquiry. Condition 1 of the approval required
the development to commence
"not later than the expiration of five years". OML advised PS, in a letter dated
the 19 May 2000, that "work commenced
on site development earlier today". I also
noted that ore processing commenced in January 2007.
15. One of the issues raised
by the complainants related to the site access. I noted
approved drawing number K/1992/0713/02 from the original
approval which detailed the site plan and indicated
the stage of works at the end of year two. Among other things
the drawing sets out the entrance to the site during
phase one. Drawing K/1992/0713/03 details the entrance
to the site during phase two.
16. The CE told me in his response that the site access was included and illustrated on the approved
drawings. He also explained
that the operators wrote to PS on 8 May 2000 requesting an amendment to the phasing
of the access. The operator requested
that the phase two access be immediately available for use rather than having to implement
the Phase 1 access and subsequently the Phase 2 access.
17. On receipt of this request PS
consulted Roads Service who
informed PS that it had no objections to the amendment.
PS wrote to OML on 19 May 2000
advising that the amended access was approved.
18. Another issue raised by the complainants related to the tailings pond at the mine. I noted condition
10 of the original approval
which stated: "The
tailings dam shall be constructed generally
in accordance with details shown in
cross sections depicted in Figure 88 of the Environmental Statement." Condition 10 further advised that "the completed design for the dam structure
and impoundment area shall be submitted
to the Department for approval prior to
construction". The CE advised that the operators
submitted a conceptual design for the tailings cells system to PS on 4 March 2005
including conceptual drawings. The CE also advised
that PS approved the scheme on 9
May 2005 subject to detailed drawings
being submitted to PS prior to
construction.
19.In his response the CE also advised that the tailings
pond was included in the original planning approval and was illustrated on the approved
drawings. He also advised that "the
operators were keen to
pursue new environmentally
sensitive techniques and they commissioned some research into the
benefits of Tailings Cells instead". The CE further advised that the operator submitted detailed drawings on 5 October 2005 and that
"the current scheme that
can be observed on site
is being carried out in accordance with these drawings". He also
advised that PS is awaiting information to verify that the Tailings
Cells are constructed in accordance with these drawings.
20. In relation
to the internal roads the CE advised that the operator chose to relocate this road for operational reasons and submitted a retrospective
application (K/2010/0098/F) to regularise the change.
21.
The CE acknowledged that the current location and shape of the stockpile storage differ from that shown in the approved
drawings, however,
he advised that a Breach of Condition Notice (EN/2009/0655) has been issued by PS. I noted
the Breach of Condition Notice was issued on 30 November 2009 and
advised that Conditions 2, 7, 17,and 39 of the original approval
had not been complied with. The Notice also explained that the OML should "demonstrate
by way of appropriate survey
that the development is being carried out in accordance with the drawings
and details bearing
the Department's Drawing Number stamp with the reference K/92/0713
01-09".
22. In relation to the Kerr vein the CE advised that concerns
were raised that this
vein did not benefit from planning permission for extraction of ore. He advised
that,
having reviewed the files, it
was clear that the planning
permission allowed for this extraction. The CE also advised that, in response to concerns
from residents about the limited detail of plans relating
to this pit, PS engaged with the operators and requested detailed
construction plans for the extraction of ore from the Kerr vein. Detailed drawings
were submitted on 18 August 2009. The CE provided a copy of the request and response
for my information.
23. In relation
to the stockpiles, the CE agreed
that the current location and shape
of the actual stockpile storage
differed from that shown on the approved drawings. He explained that "breach of Condition Notice (EN/2009/0655) lists Condition 02 as one of the conditions considered to have been breached". He
advised that Condition 02 relates to the development as having to be carried out in accordance with the approved
drawings. The CE also explained that the
rate of lowering and removal
of stockpiles will be affected by the option of removing surplus rock, off site. He advised that enforcement action in relation to the height of the stockpiles was being "held in abeyance while the current application for the removal of surplus rock is determined".
24. In conclusion, the CE advised that "the
redesign of the site in its individual elements has been a progressive issue. Each element of the redesign
has been addressed by the means considered most appropriate and expedient,
with reference to the terms of the original planning
approval and the requirement of PPS 9. To date the service of a Stop Notice has not been considered necessary given the willingness of the operator
to co-operate and where
necessary submit retrospective applications to regularise
breaches."
(a) Conclusions
25. It is clear from the evidence
in this case, and the detail given in the CE's response, that the layout of the site differs
considerably from that of the approved drawings. The operator of the mine changed the layout of the site without the prior approval
of PS, although I am aware that the company has submitted retrospective planning applications to rectify these breaches. I consider PS has an important responsibility to ensure facilities, such as the
mine at Cavanacaw, are properly monitored
to enforce planning
laws, especially in relation to applications which are attended
by considerable public attention and objections. I have expanded on my view on this matter later in
my report. The enforcement action taken by PS only commenced following receipt of complaints from local residents in June 2008 regarding breaches
at the site. Given the site development commenced
in May 2000 and ore processing from January 2007, I find it wholly unacceptable that PS failed to
observe that the layout of the site had changed
considerably from that of
approved plans and associated drawings
and failed to take appropriate action.
26. I consider the failure of PS to proactively monitor this site to represent maladministration. In cases where I identify maladministration, I must consider
the injustice caused to the complainant(s). In reaching
my opinion of this
aspect of this complaint, I do not, however, consider that the complainants suffered a personal injustice as a result of the failure by PS to monitor the site
in respect of changes to the layout.
Whilst the layout of the site had changed
without planning approval, I do not consider this impacted on the amenity enjoyed by the complainants. I therefore, am unable to uphold this aspect of their
complaint.
27. Whilst I did not consider
that the complainants suffered a personal
injustice as a result of this failure, I do, however, believe
it highlights a complete
inadequate approach on the part of PS in its monitoring of the mine at
Cavanacaw.
(b) PS provided misleading/incorrect advice in particular in relation to a site survey, restoration of the site and the Kerr Vein;
28.In his reply to my enquiries
the CE advised that, throughout the investigation of this case, PS has maintained communications with all parties involved, including the complainants. The CE also advised that the local residents
met with the Minister
to discuss the issues raised by
them.
The CE did not agree that
PS misinformed complainants with regard to the commissioning of surveys at the mine.
29.
The CE explained that two officers from PS visited
the mine on 26 November2008 to investigate a number of alleged breaches of planning
control. Whilst on site the officers
attempted to take a number of readings in relation to the
width, depth and length of the pit, along with the height of the stockpile
but unfortunately the equipment
available to the officers was not suitable,
as a consequence of the scale of
the site. The CE advised that Mr Shankly was
notified of this in writing
on 18 December 2008.
30.
The CE advised that the operators of the mine submitted
a Closure Plan on
20March 2009 that included data from a survey which it had carried out. The
survey was forwarded to the Department of Finance and Personnel's (DFP) Central Procurement Directorate (CPO) but due to IT compatibility reasons it
could not be read. The CE also advised that PS,
through a procurement process, secured the services
of CPO to undertake a survey of the
mine, however, "the scale and nature of the site posed operational and safety
constraints that prevented
CPO from obtaining
the survey data that PS had requested". The CE also advised that Mr Shankly was again informed of this, in letters dated 1 and 22 July 2009.
31. The CE also advised that following further discussion, CPO agreed to explore
the possibility of placing a tender request
for a suitably qualified company to
carry out the survey. The CE advised that CPO provided
an indication of the
likely costs of the survey on 31 July 2009. Given the scale of the estimate
involved, the CE advised
that PS concluded that "this level of expenditure could not be justified
given its budgetary
constraints" and "the earlier
request for CPO to explore the tender process was therefore
terminated".
32. The CE explained
that OML confirmed that a specialist company had been commissioned to carry out a laser survey of the site and Mr Shankly was
informed on 3 September 2009 that PS would be requesting a copy of this
survey. In a further letter dated 30 November 2009 Mr Shankly was informed that PS had requested this survey from the operators
and that the earlier survey would not now be commissioned by PS. The CE advised that
this was explained by the Divisional
Planning Manager in his letter of 18 January 2010 to
Mr Shankly.
(b) Conclusion
33.
I noted a letter, dated 26 February
2009, issued by email to Mr Shankly from an officer from the Minerals
Unit, PS, who advised that "the Planning
Service are concerned with Land Use Planning only and on occasion will employ
the services of qualified professionals to undertake work that Planning
Service are unable to carry out. The Department
has secured the services
of a qualified surveyor to carry out this work".
34. I also noted
a letter, dated 18 January 2010, from the Strategic Projects Manager (SPM) in response to the complaint from Mr Shankly, when he
explained that two officers from the
Department visited the gold mine on 26
November 2008 and attempted
to take a number of readings in relation to the width, depth and length of the pit, along with the height of the stockpile. The SPM
advised that the equipment
available to the two officers was "unsuitable and thus incapable of taking readings
on the scale required".
35. It is clear to me that the officers from PS experienced difficulties carrying out the
site survey due to the unavailability of suitable equipment. PS also engaged the in-house technical
services of CPO, however,
due to the scale of the site,
CPO was unable to carry out the survey. The possibility of employing an external
surveying company to carry out the survey was considered, however, this was not pursued
due to the considerable costs that would be
involved. It is clear to me, however, that the letter of 26 February 2009 did
lead the complainants to believe
that a survey would be commissioned. I cannot, however, conclude
that PS deliberately misled the complainants. It was the case that there was considerable communication between PS and a number
of residents at that time regarding various
breaches of planning
control. Whilst the letter issued by PS did lead the complainants to believe that a survey was to be carried out, I believe the position as it unfolded was clearly
explained in subsequent letters. I am, therefore, unable to reach a definitive conclusion on this aspect
of the complaint.
36. Whilst, I was unable
to conclude that PS deliberately mi"sled the complainants in relation to the site survey, I feel I must comment
on the lack of appropriate action taken by PS when a survey of the site, forwarded by the operator, could not
be read by CPO "due to IT compatibility reasons". Given the considerable objections and complaints raised
by the residents regarding the ability to restore the site following
the removal of the rock, I find it inconceivable and unacceptable that PS failed to ask the operator to provide the survey in a
format that could be read. Such a basic failure
yet again highlights the half hearted approach
taken by PS in relation
to its monitoring of the mining
facility.
(c) PS took 8 months
to issue a stop order with regard to the unauthorised removal of rock from the site and failed
to require the company
to submit a retrospective planning application to rectify this breach.
Also, PS took 8 months
to issue a stop order with regard
to up to 145 trucks
per day unlawfully entering and
leaving the site over a seven
month period to remove rock from the site and failed to require the company
to submit a retrospective planning application to rectify this breach
37. In his response
the CE advised that the initial breach in relation
to the unauthorised removal
of rock was reported to PS in June 2008.
The CE advised that PS visited the site on 9 June 2008 and made contact
with the operators on 16 June 2008, followed by a site meeting on 1 August 2008.
38. The CE advised that the removal of rock ceased following negotiations with
the operator which resulted in an undertaking being provided by OML. The CE
advised that the removal of rock required
for restoration ceased
on 6 February
2009. The CE explained
that, during this period, PS engaged with DRD Roads Service, and with the operator
on the interpretation of the original planning condition. He also advised
that advice was sought from the Departmental Solicitor's Office.
39. A further report was received by PS on 17 June 2009 that removal of rock had recommenced. The CE advised
that an Enforcement Notice (EN/2009/0270) was issued on 30 June 2009. The CE also explained that a Stop Notice was not necessary given that the initial breach was ended through
negotiations and the subsequent
recommencement ceased following
the serving of the Enforcement
Notice.
40. The CE advised that the operators
submitted a planning
application (K/2008/0995/F) to vary condition 39 in an attempt to remedy this breach. However, in a subsequent
reply to enquiries
from this office, the Deputy
Secretary (Acting) advised
that this was in fact incorrect and that "in the Department's view, the unauthorised development (removal of rock) and the subsequent volume of traffic that had been entering
and leaving the site on a
daily basis was unacceptable and planning permission
was unlikely to have
been granted. In these circumstances a retrospective application would not have been appropriate". The CE advised that OML also submitted a Closure Plan in accordance with condition 39 which would allow for the removal of
surplus rock from the site at a stage earlier
than previously envisaged. The application proposes an amendment to allow for the Closure
Plan to be implemented at any stage (progressively) rather than within six months of the cessation of ore processing. The CE advised that this application is still
under consideration.
41. I noted that PS received a telephone call on 4 June 2008 advising that rock
was being taken off-site by a contractor to roadworks at Dungannon. The caller advised that the removal of rock started
on 26 May 2008 and localresidents were concerned about damage to the local roads. A further
call was received on 6 June 2008 advising
that the lorries were leaving
the site from 6.50am and estimated 30-40 lorries on a daily basis. The caller complained
that the roads were being damaged.
42. On 16 June 2008 PS contacted
the mine manager
to advise that the
Department had received
a number of complaints in relation to material
leaving the site. The mine manager
confirmed that the material being removed
was waste rock and was being used in
the Ballygawley road scheme. He also explained that the anticipated rock to be removed was in the region of several
million tones and would be removed over a number
of years. The mine
manager also questioned what condition
he was breaching.
43. I
noted a letter from the Managing
Director, OML, dated 24 June 2008 toPS explaining that "by disposing of the surplus rock on an ongoing
basis, rather than waiting until the last moment permitted
under the consent, we have
reduced the environmental landscaping tail to the project, reduced the additional visual impact where all such material to be stored during the project, reduced
the peak stress upon local roads by spreading in time the off-take of such
material and enhanced
the security of satisfactory project
completion arrangements".
44. I noted
the letter from the PS Special Studies
Section to the Managing
Director, OML, dated 9 July 2008, which stated "whilst it may have always been the intention of the company
to integrate the surplus rock into the local
aggregate environment, it is evident that this intention
was insufficiently highlighted or included in the Environmental Statement, PAC Report or indeed
the planning approval under K/1992/0713/F". The letter also advised that OML should "contact the Department to discuss the submission of a retrospective planning application should the company wish to regularise this breach of planning control". I noted the application (K/2008/0995/F) was received
by PS on 26 September 2008.
45. On 10 October 2008 two officers
from PS visited the site. In their notes of the
visit the officers recorded
that "in a timeframe
of 10-15 minutes" they witnessed and recorded 11 lorries. The notes also record
that the officers
met with the site manger and "outlined the Departments view on the breach of condition and explained the options that Planning Service
had available to them
under the Planning
Legislation to remedy the breach,
including the issuance of a Stop Notice. The operator
was advised to look at possible ways to
address the situation
before formal legal action was required".
46.In a letter from the Chief Executive, Omagh District Council, dated 28
November 2008, to the Principal
Planning Officer, the Chief Executive outlined concerns expressed by members
of the Council, which included
the removal of rock from the site. The Council's Chief Executive extended an invitation
to the Principal Planning
Officer to address
a meeting of the Council's Planning
and Public Services Liaison Committee.
47. On 27 January 2009, the mine manager
wrote to PS regarding the amendment to condition 39. In his letter the mine manager stated:
"from 6th February PT McWilliams will cease drawing
stocked rock from site. It is likely
that further surplus rock will have to be removed from site; however
they will not do so until the determination of the amendment
has been made and traffic levels agreed with the department, provided that determination of the
amendment is achieved within a reasonable time. Omagh
Minerals undertake this action not because
we believe we are in breach of our planning permission but we wish to demonstrate co-operation and enable the
department to demonstrate improved amenity
for local residents
to the minister".
48. I
also noted the mine manager set out the company's proposal
for HGV movements. He stated:
"We propose
that future movements
are limited to a
maximum of 40 loaded lorries
leaving site per day. This represents a significant decrease from the current
maximum that reached
145 loads per day."
49. In a further letter from the mine manager to PS, dated 23 March 2009, he
advised that 8213 truck loads of stone had been removed from site equating
to 82,000 cubic metres (broken).
50. On 17 June 2009, PS received
a telephone call advising that a tractor and trailer was removing rock
from the site to use in a laneway. Enforcement
file K/2009/0096/CA was subsequently
opened. PS contacted the
mine manager on 21 June 2009 who advised
that three loads had been removed.
PS carried out a site visit on 22 June 2009 when officers observed rock being removed from the mine.
51. On 30 June 2009 an enforcement
letter was issued to OML to "cease removal of rock within 24 hours of this notice". I noted the enforcement file is now closed, however,
the enforcement notice remains
in place.
(c) Conclusion
52.In reaching
my conclusions on this aspect of the complaint, I have examined
carefully the considerable documentation associated with this case, including the Environmental Statement
which accompanied the original
planning application and the documentation from the public
enquiry. I also arranged for my
Investigating Officer to examine
all the enforcement files in relation to the
mining facility at Cavanacaw.
53. I noted that the use of the local road network is referenced
at Page 11, paragraph four
of the Environmental Statement
accompanying the original
application, advising that "The minor
roads around the site are narrow and have
limited potential for the regular
movement of heavy loads. However, such
loads will be restricted to
the supervised transport of excavating machinery and plant components to and from the site during the preconstruction and decommissioning phases". Paragraph six further clarifies the issue: "During operations, traffic will be largely
confined to light vehicles. Total traffic generated is estimated as 60 to 75 movements per day of light vehicles
and one lorry load of fuel or other supplies per day (my
emphasis). This
level of vehicle activity
is low and will not affect the capacity of the local
road network".
54. Paragraph C10.3 of the Environmental Impact Assessment (EIA) included in the Environmental Statement also highlights issues
surrounding the local road
network: "The proposed vehicular
route to the site would cross the bridge
listed as number 1 on Figure C13. This is considered to be of local interest. Heavy vehicles, such as those delivering plant
and equipment, will be supervised over this bridge. The vehicles which are expected to traverse
other routes are not exceptionally large nor heavy, and are expected
to have minimal impact on cultural
heritage".
55. Paragraph C11.3 of the EIA also states: "The
proposed development will generate a limited amount
of heavy traffic during the construction phase,
notably in connection with the movement to site of the excavators and haulage vehicles and the components of the process
plant. During the operational
phase requirements will largely be confined to light vehicles. Following completion of construction and commissioning, there will be no requirement
for the transport of heavy materials to and from the site until the decommissioning phase (my emphasis), when plant and salvageable materials will be removed
from the site... Light vehicular traffic, principally conveying site personnel and visitors, may approach
the site from various
directions. An estimate of the number of vehicle
movements per day for
normal site activities is given in Table C11. 3. The majority
of car movements will occur at the beginning
and end of the day shift".
I have included a copy of
Table C11.3 at Appendix 7.
56. In summary, paragraph
C11.5 of the EIA states "The proposed
development will have very little impact on the local infrastructure, which has plenty of capacity to meet the site's requirements. The level of vehicle traffic
is low and will not affect the capacity
of the local road network. All deliveries and removal
of heavy equipment will be via the north, and under close supervision".
.
57. 1t is clear that the mine operator had a different
interpretation of the planning
approval than that of PS in relation
to the removal of rock. The operator believed Condition 39 allowed
for the disposal of waste rock. Condition 39 (b)
of the approval states "the refilling
of the trench with waste rock to the level of
the surrounding land and the disposal of surplus rock." In its letter to the operator dated 9 July 2008, PS stated "whilst it may have always been the
intention of the company to integrate the surplus rock into the local aggregate environment, it is evident that this intention
was insufficiently highlighted or included in the Environmental Statement, PAC Report or indeed the planning
approval under K/1992/0713/F".
58. Having carefully
reviewed the Environmental Statement and the Public
Enquiry Documentation, I agree with the interpretation of PS in this respect.
It is clear that it was never the intention, during the consideration of the initial planning application, that rock would be removed
from the mine. There are also
numerous references within the documentation accompanying the Public Enquiry which also reinforce
this view. Of particular importance is section eight of
the Public Enquiry which outlines
the position of the Department,
the applicant, third parties and the consideration of the Public Enquiry. For
completeness, I have included
this section of the Public Enquiry, in its entirety
at Appendix 8.
59. PS set out its position at a very early stage in its letter of 9 July 2008, some
four weeks after the initial report of rock removal from the mine. However, the complainants are at a loss to understand why PS took in excess of one year
from the date of the initial report (4 June 2008) to the issuing of an enforcement notice (30 June 2009), given the significant breach of planning approval and the potential
impact on the environment and local residents. The mine manager freely admitted in his letter of 27 January 2009 that a maximum
of 145 trucks per day were removing rock from the site at that time. Indeed, when PS official visited the site on 10 October 2008 they recorded 11 lorries
leaving the site in a period of 10-15 minutes.
60. Planning Policy Statement (PPS) 9 sets out
the general policy approach the Department will follow in taking enforcement action against unauthorised development. Paragraph
3.2 states "In considering whether formal
enforcement action is an expedient
remedy for unauthorised development, the Department will be guided by the following:
• whether the breach of control would:
(a) be clearly contrary to planning policy; or
• whether the breach of control would:
(a) be clearly contrary to planning policy; or
(b) unacceptably affect public amenity (including road safety) or the existing use of land and buildings
meriting protection in the
public interest.
61. The CE told me that on 6 February 2009 "the alleged unauthorised traffic movements associated with the removal of rock from the site had ceased following negotiations with OML". I note paragraph
3.2 of PPS 9 further clarifies the Department's role in enforcement: "Where initial attempts by the
Department fail to persuade the offender(s) to remedy the harmful effect of
unauthorised development voluntarily, protracted negotiations will not be allowed to hamper or delay whatever
formal enforcement action may be
required to make the development acceptable on planning grounds, or to compel
it to stop. "(my emphasis)
62. Paragraph 7.1 of PPS9 also states
"where, in the view of the Department, unauthorised development is causing serious harm to public amenity and there
is little likelihood of the matter being resolved
voluntarily or through negotiations, the Department will normally take vigorous enforcement action. This may include
the service of a stop notice with, or on the foot of, an enforcement notice, or,
where circumstances permit, an injunction to remedy
the breach urgently in order to prevent
further serious harm to public amenity".
63.
I noted with particular interest
section 9.0 of PPS 9 which sets out the Departments policy in respect of enforcement of planning control over mineral
working. Paragraph 9.1 states: "Unauthorised mineral
workings can pose particular enforcement problems in terms of the occasionally irremediable nature of the working, the speed at which significant damage to the environment can be caused, as well as the fact that there will
be no
agreed arrangements for the restoration or after-use of the land. Consequently in cases where formal enforcement proceedings are necessary the Department
will take prompt action and will be guided by the advice set out in section 7.0of this Statement to ensure that the possibility of irreparable environmental damage is minimised".
64. Given the Department's policy on enforcement action which I have highlighted in the above paragraphs, I find it wholly unacceptable that PS failed to take appropriate timely enforcement action commensurate with this breach of
planning control given the very significant impact this had on local residents,
including the complainants. The failure
of PS to take appropriate enforcement action is even more difficult to understand given that it issued an enforcement
notice in June 2009 when its officers
witnessed a trailer
load of stones being removed from the site yet failed to do so when, by the companies own admission, up to 145 trucks per day were leaving
the site and, indeed, when PS
officials witnessed 11 lorries leaving the site over a short period
of 10-15 minutes in October 2008.
65. Where the exercise
of discretion is involved, I carefully consider
whether, in my view, this discretion has been exercised
reasonably and without maladministration. I can only question a discretionary decision
if I regard it as being
wholly unreasonable that
no reasonable person
would take it in the light
of the relevant facts and circumstances. The decision on whether to take
enforcement action is an example
of a discretionary decision. It is clear from
the Public Enquiry held to consider the initial planning
application for the mine
that the prospect of a mining facility
attracted considerable opposition from a variety of sources in the Omagh
area. Indeed, Appendix 8 demonstrates the importance given to the issue of traffic to and from the mine by the Public
Enquiry.
66. I can fully understand the frustration of the complainants and the other residents at the lack of effective
enforcement action taken by PS. The Chief Executive, Omagh District Council
also corresponded with PS outlining
the Council's concerns at the rock being removed
from te site yet no action was taken
by PS to stop the removal. In response to enquiries from this office the
PS CE advised that the delay was as a result of negotiations with the mine operator along with a request for legal advice.
Whilst it is the case that officers did visit the site promptly after
receipt of the first report of the lorries leaving the site, it is my considered opinion
that the subsequent lack of timely
enforcement action by PS was attended by maladministration. Indeed, the
interpretation of the planning approval
by PS was clearly
set out in its letter of
9 July 2008. Why PS allowed the mine operator
to continue to remove up to
145 trucks of rock per day from the site, for a period of approximately eight months, given PS's clear understanding of the restrictions of the original planning approval, is quite astonishing and demonstrates a complete failure to
protect the public interest.
67. Inaction such as this clearly undermines the public's expectation of the planning process. Indeed
PPS 9 highlights this particular
issue: 'The integrity of the development control
process depends upon the readiness
of the Department to take effective
enforcement action when it is appropriate. Public respect for the development control system is quickly undermined if unauthorised development, which is unacceptable on planning grounds, is allowed to proceed without
any apparent attempt
to intervene before serious
harm to public amenity results".
68. Notwithstanding the issue of traffic to and from the mine, the complainants also raised concerns
about the restoration of the site. I can fully understand their concern given the large volume of rock removed from the site given that, by its own admission, the operator
removed some 8213 truck loads of stone equating to 82, 000 cubic metres from the site. It is inconceivable that PS continued to allow the operator to remove huge volumes of rock from the site without any assurance that there remained
sufficient rock to backfill the trench, a failure which,
in my view, also represents maladministration. Indeed, PS has
confirmed that officers
were unable to measure the size of the trench
and rock pile on the site. As such, it had no confirmation that there remained
on site enough rock to fully restore the mine to its former
condition as outlined in the original Public Enquiry.
69. In its consideration of the original
planning approval considerable importance was given by the Public
Enquiry to the restoration of the site and how the land would be restored to its original
condition. The CE confirmed
that PS was not treating application K/2008/0995/F as a retrospective application as the volume of traffic would not have been acceptable. In effect, other than the
Enforcement Notice issued in June 2009, the removal
of the rock over the period June 2008 to February 2009 has been allowed without
planning approval. Whilst planning
application (K/2008/0995/F) submitted
by the mine operator on 26 September
2008 was to vary condition
39 of the original approval, to allow progressive restoration, I believe
PS clearly should have
taken more effective, robust
and timely enforcement action following the initial
complaints from residents in June 2008. I, therefore, uphold this aspect of their complaint.
(d) there has been delay in or a general lack of enforcement by PS
70. 1n his response to my enquiries
the CE provided a chronology of the enforcement action
taken by PS in this case. I have provided a copy of this at Appendix 9.
71. I noted the original
approval (K/1992/0713), issued on 23 May 1995, included
40 conditions. The CE advised that PS received
confirmation on 24 May 2000 that
the company had commenced operations on site on 19 May 2000. The
CE also advised that the plant at the site became operational on 22 January
2007 when the company commenced
the processing of ore.
72. Whilst an enforcement case (K/2006/0139CA) had been opened
in
December2006 to investigate alleged
breaches with regard to conditions
relating to noise monitoring, the first enforcement action taken by PS following
the commencement of ore processing was as a result of the report of rock removal received on 4 June 2008. Subsequent
to this PS took enforcement action in relation to additional breaches
such as unauthorised screening and crushing plant; hard surfacing of internal roads; internal road not located in
accordance with the approved drawings. In addition to the Enforcement Notice issued on 30 June 2009 in relation
to the removal of rock from the mine, the
CE advised that PS issued a Breach of Condition Notice
(EN/2009/0655) in respect of conditions 02, 07, 17, and 39.
(d) Conclusion
73. I noted condition
39 of the original approval
stated: "within 5 years of the date of commencement of this development, or within 3 months of a written
request from the Department, the operator shall provide for the
agreement of the Department, a Closure Plan for the development; such a plan to be
implemented within 6 months of cessation of ore processing.
74. Condition 1 also states that "the
development must be begun not later than the
expiration of five years beginning
with the date of this permission as required
by Article 34 of the Planning (Northern Ireland) Order 1991". The CE advised that the company notified PS in a letter dated 19 May 2000 that site
development had commenced.
Given this start date it follows
that the Closure Plan should have been submitted to PS no later than May 2005.
75. I
noted paragraph 19.43 of the Public Enquiry where the Commissioner stated "As Dr Johnson
has persuaded me that it is physically
possible to successfully restore the site at Cavanacaw
I have only one remaining
concern. That concern, and I am aware
that it is a concern
raised by many of the objectors,
is that OML will be able to fully implement the restoration
scheme. Should planning permission be granted for this proposal
I consider it to be essential
(my emphasis) that
any consent makes provision to ensure that OML, or any consent makes provision to ensure that OML, or any successor
company, can be made to fully implement any Restoration (or Closure) Plan".
76. As highlighted in PPS 9 the key objectives for planning enforcement must be secured "otherwise the credibility and integrity of the planning
system will be undermined". This
view was reinforced by the Criminal
Justice Inspection (CJI) Northern Ireland, in its report of October
2007, in relation to enforcement in the
Department of the Environment (DOE)
and its Executive Agencies, including
PS.
In relation to PS, the report
concluded that "PS needs to be seen as committed to tackling breaches of the regulations. That commitment needs to be sharpened to ensure that there is a systematic means of progressing all relevant cases through
to the right outcome. There should be little room for a
soft option' of restoration only, no offender should
be able to negotiate their way
out". The report also stated that there was "a lack of clarity on work
priorities and a lack of focus on enforcement.
These pressures are de motivating staff and causing
inequality and inconsistency of approach as staff
look for 'quick wins' to close cases. Additionally, the CJI report stated
"there is some ambiguity around what is meant by 'commensurate' or 'expedient' which often leads to staff taking the 'soft' option. There
is a need for more clarity
around these elements to improve the efficacy
of enforcement actions and show
greater determination to enforce planning
laws, to their full extent".
77.I note that an initial closure plan was submitted on 20 March 2009 with a final version of the closure plan submitted
in February 2011. Given that the Closure
Plan should have been submitted
to PS no later than May 2005 (paragraph 74 refers), I consider the failure of PS to ensure the closure plan was submitted within the timescales permitted in the original approval
to constitute maladministration. Indeed, the sole purpose of condition 39 was to ensure a closure
plan would be submitted which set out the mine operator's proposals for restoration of the site. It was only following
local residents raising their
concerns regarding the removal of rock that any action was taken by PS,
albeit over a year after the initial approach from residents.
78. As part of my investigation, I also examined the documentation relating
to Enforcement Notice EN/2009/0270 which was issued on 30 June 2009. The
Enforcement Notice highlighted the breach of planning control, in particular, the "unauthorised removal of rock required under K/1992/0713 for restoration
of the site, from lands at Cavanacaw, Omagh. " I asked the Deputy Secretary
(Acting) if an Environment Impact Assessment (EIA) had been carried out by
PS in
accordance with paragraph
23.1 of Development Control Advice Note
(DCAN) 10 which states that "the Department is required to make an EIA
determination accordingly and issue it with the enforcement notice". In her
reply the Deputy Secretary (Acting)
advised that the Department did make an EIA determination but did not issue it with the enforcement notice. The Deputy
Secretary (Acting) also advised that the Department concluded that the removal of rock did not constitute EIA development and that the determination
was not issued with the Enforcement Notice. The Deputy Secretary (Acting) explained that the wording in paragraph 23.1 of DCAN 10 is "a little unclear in
terms of the circumstances in which an EIA determination is to be issued with an enforcement notice." She further advised that, under Regulation
22 of The Planning (Environmental Impact Assessment) Regulations (NI) 1999, PS was not required to issue a negative determination with the enforcement notice.
79.
I noted that PS determined
that the breach of planning
control did not fall
within the scope of Schedule
1 of The Planning (Environmental Impact Assessment) Regulations (NI) 1999. I asked the Deputy Secretary (Acting)
for an explanation as to how this determination was reached given that the Regulations classify a Schedule
1 development as "Quarries and open-cast mining where the surface
of the site exceeds 25 hectares, or peat extraction
where the surface exceeds 150 hectares".
I noted the P1 form accompanying
the original application for the mine gives the area of the site to be 60 hectares.
80. 1n her response, the Deputy Secretary (Acting) advised that "the determination
was reached by consideration of the development associated with the breach
i.e. the removal of the rock". She also advised that the size of the site for the
original application (K/1992/0713) was not a factor
for consideration in this
determination.
81.
am confused with this determination given the Enforcement Notice (EN/2009/0270) issued on 30 June 2009 related
to "land at Cavanacaw
Gold Mine, Botera
Upper Road, Cavanacaw, Omagh shown edged in red on the
attached plan". The attached
plan (Appendix 10) outlines
the mine in its entirety.
82. PS records show that an Environmental Statement was not required
for the following reason(s): "The breach
involves the removal
of this rock from the site
to other locations in haulage
vehicles travelling along the public road network.
The proposal does not fall within Schedule
1 but does fall within Schedule 2 of
The Planning (Environmental Impact Assessment) Regulations (Northern
Ireland) 1999. It is considered that the removal
of rock from the site would not have
significant environmental impacts
and that indeed the problems
and concerns associated with this type of development could be dealt with and taken
into consideration in the normal planning
process and through the
submission of additional information if required."
I find this statement confusing given that the determination also states that "the
rock is to be used to restore
the site after the operations are completed. The rock is to be used to backfill the pit and create landfilling features".
83. The complainants have asked how the rock can be used to restore the site
when it has been removed and used in road building.
I can fully understand this concern.
I am also concerned with the determination that the proposal does not fall within Schedule
1, given the size of the site (60 hectares) and the
area outlined in the map accompanying the Enforcement Notice.
The EIA determination also states that an environmental statement was not required as "this
type of development could be dealt with and taken into consideration in the normal planning
process and through
submission of additional
information if required". I find this statement conflicts with the Deputy
Secretary's (Acting)
confirmation that the "volume of traffic that had been entering and leaving the site
on a daily basis was unacceptable and planning permission was unlikely to have been granted".
84. Given
the lack of supporting explanation, I consider
the decision to classify the proposal as a Schedule
2 development during the EIA determination inspect of enforcement notice EN/2009/0270 to be attended
by maladministration.
Overall conclusions
85. Having considered
the large volume of documents
from both the complainants and PS, I have identified a number of instances of maladministration in the enforcement action taken by PS. In particular PS:
• failed to stop the operator removing
up to 145 truck loads of rock per day from
the site for a period
of approximately eight months without
any assurance that sufficient
rock remained on the site to backfill
the trench already excavated;
• failed to ensure the closure plan was submitted
within the timescales permitted in the original approval;
•
failed to adequately document the decision to classify the proposal as a
Schedule 2 development in the EIA determination carried out as part of enforcement notice EN/2009/0270.
86. I
did consider the letter issued by PS in respect of the commissioning of a survey of the site by PS to be misleading, however, I was unable to reach a definitive decision on whether PS deliberately misled the complainants. I also identified maladministration in the failure of PS to proactively monitor
the site following a redesign by the operators, however: I did not consider
the complainants suffered any injustice as a result of this failure.
87. Whilst I am aware that the majority of enforcement action
taken by PS is by its
nature reactive, in cases such as this, which have both the potential to and the actual
effect of impacting
on the environment and the amenity of local
residents, I consider it essential that PS take proactive enforcement action to ensure full compliance with planning approvals. Members of the public need to
be assured that public bodies such as PS are taking appropriate and timely action to ensure activity
of this nature complies with the conditions set out in the planning approval.
This is essential
if public confidence and trust in the
role of PS is to be secured
and maintained.
88. Notwithstanding the failure of PS to proactively monitor
the mine, PS also failed to take timely enforcement action following complaints from local residents. I have no doubt the failure by PS to take appropriate robust enforcement action has caused
the complainants considerable anxiety, inconvenience, distress, frustration and loss of amenity. Despite repeated complaints from local residents
regarding the movement
of up to 145 trucks per day from the mine, PS allowed
this breach to continue for a period
of eight months. In every respect, the action taken by PS fell significantly short of what I consider to be appropriate in this case. I have not been presented
with any
evidence to demonstrate that PS took appropriate action
to ensure planning conditions were adhered to in order to ensure the public confidence in the
planning system. The failures identified in my report
highlight what I consider
to be a major system
failure in the monitoring and effective, prompt
enforcement action taken
by PS in relation to the mining facility at Cavanacaw.
89. Given what I consider
to be the considerable injustice
caused to the complainants in this case, I recommend that the CE personally issues a letter of
apology along with a consolatory payment of £10,000 to each of the three
complainants. I also recommend
that PS carries out, or commissions external consultants to carry out, and complete
a reassessment of the present
position of the mine within six months of the date of this report. In particular, the report
should detail the level of rock remaining
on the site and whether
this is sufficient to restore the site to its previous
condition. PS should report its
findings both to me and to the complainants, and should then consider
any recommendations to protect
the amenity of the area and the site that may be judged
necessary in light of its conclusions.
90. 1n conclusion, my investigation has highlighted the failures of PS to effectively
monitor and enforce planning control/
conditions at the precious metal mine, I also believe it is important
to comment on, what I consider
to be, my very serious concerns
regarding road safety
for residents, pedestrians and other users of the road network around
the mine at Cavanacaw. When rural roads, such as those leading to the mine at Cavanacaw, are used so intensively by large
vehicles to transport
heavy loads, road safety must be the primary
consideration not only for PS, but for other authorities such as Roads Service
and the PSNI, who also should be proactive in monitoring risk. I would expect, therefore, that PS in future engage
with other authorities when difficulties such as these are identified to ensure a more integrated approach is taken to
address the concerns and potential risks to road users and residents. I also
will have an expectation that the Roads Service, in cases such as this, proactively pursue a more robust approach
in order to achieve its key
objective in promoting road safety
and importantly protect
road infrastructure from damage due to unplanned use.
Assembly Ombudsman
Cavanacaw Goldmine Blog
Assembly Ombudsman
Cavanacaw Goldmine Blog
