Agenda item

The installation of perimeter security fencing consisting of 2 metre (m) high Heras fencing and 3m high deer fencing; an office and wc at the site entrance; and office, welfare accommodation, water fuel and a generator, all ancillary to and in association with appeal decision APP/B3600/A/11/2166561 dated 7 August 2015.

 

Two update sheets and a letter from Leith Hill Action Group were tabled at the meeting, and these are attached to these minutes as Annexes 1a, 1b, 1c.

 

Officers:

Caroline Smith, Planning Development Manager

Samantha Murphy, Principal Planning Officer

Nancy El-Shatoury, Principal Solicitor

 

 

The Principal Solicitor updated the Committee on the legal position of this application. 

1.    It was explained that this application first came to the Committee for determination in October 2017.  Planning permission was granted.  This was subsequently challenged by Leith Hill Action Group (LHAG) with a Letter Before Action. 

2.    The County Planning Authority (CPA) responded to the Letter Before Action on Counsels’ advice, rebutting the challenge.

3.    On 8 December 2017, LHAG responded with a claim for judicial review.  The CPA was required to respond by 1 January 2018, in compliance with the timetable for the judicial review process.

4.    The CPA sought Queen’s Counsel’s (QC) advice.  QC advised that whilst LHAG’s other grounds for claim were not tenable, the CPA was advised to concede because of the way Green Belt Policy had been dealt with in the planning report in October 2017. QC was of the view that a challenge could be successful on that ground.

5.    The officer report had relied upon the Planning Inspector’s decision when dealing with Green Belt Openness, and, it transpired that whilst his decision had not been challenged, the Planning Inspector was also in error on this point.

6.    The CPA therefore advised LHAG that their application for judicial review would not be contested; and a consent order was drafted between the CPA, LHAG and the applicant’s solicitors, requesting that the planning permission be quashed.

7.    This order was made by the Planning Court on 29 March 2018, and the planning permission for MO/2016/1563 was quashed.

8.    The application comes afresh to the Committee for determination.

 

Speakers:

 

Alan Hustings, local resident, made the following points:

 

1.    When the exploratory development was approved by the Planning Inspector in 2015, by appeal, the permission had a number of conditions attached to it.  Condition 6 stated “no lights or fences other than those permitted in this application shall be installed erected at the application site”.

2.    As a freestanding application, to be judged on its own merits, this is simply an application for a fence and to erect some buildings in an Area of Outstanding Natural Beauty (AONB), defined as inappropriate development in the Green Belt. 

3.    The Committee is being asked to approve a freestanding application, to be judged on its own merits, but the officer report then also states that this is an additional component to the hydrocarbon well-site. This is contradictory and this approach leaves the Council once again open to legal challenge.

4.    A freestanding application for fences and buildings is not mineral extraction, it is inappropriate development in the Green Belt and the Committee should refuse this application.

 

Lucy Barford, local resident, made the following points:

 

1.    Questioned why the application was not included in the submissions to the Public Inquiry in 2015, which would have allowed the Planning Inspectorate to make a decision with the full facts before them.

2.    The 30% increased site footprint and severe visual impact could have led to the permission not being granted by the Planning Inspector.

3.    Over the last nine years, the applicant has not secured any community buy in until ordered to do so by this Committee in October 2017.

4.    The right to protest is part of any democracy and is included in Article 11 of the European Convention on Human Rights.  Exercising of that democracy does not require additional fencing.

5.    The applicant already has a security fence around the site. If the public requires additional fencing to make the site safe, the permitted development site must be unsafe by implication.

6.    The application should be rejected as it is unwarranted and risks exacerbating an already tense situation.

 

Vicki Elcoate, local resident, made the following points:

 

1.    Without LHAG, the Council would have taken a decision that was wrong in law. 

2.    The fence is unnecessary, there is already a fence on the site covering the area permitted by the Planning Inspector, in place and an injunction on the land.  There have been no intrusions onto the site since the eviction of the protestor camp almost a year ago.

3.    The fence would have a large environmental impact.  It would not be well screened as it would run along the roadside.  It would bring an unwanted industrial feel to the area, not in-keeping with the rural character of Coldharbour Lane.

4.    The timeframe of the proposal is irrelevant. If a fence is erected, openness of the Green Belt will be lost. 

5.    MVDC unanimously raised objection on the grounds that it is inappropriate development in the Green Belt, not linked to the minerals extraction operation proposed, with no special circumstances and is an attempt to significantly amend the plan that was scrutinised by the Planning Inspectorate.

6.    The application should be turned down.

 

Max Rosenberg, local resident, made the following points:

 

1.    The planning permission for this application was quashed at the High Court on 29 March 2018. 

2.    Represents inappropriate development in the Green Belt as there is harm to openness, including visual impact.

3.    The increased footprint would allow the applicant to erect industrial fencing and buildings, visible from the roadside in an AONB.

4.    The Planning Inspector granted planning permission for the exploratory drilling on the understanding there would be no visibility from Coldharbour Lane.  This assurance by the applicant explicitly informed his decision.

5.    The Council accepted, in the consent to quash the planning permission, that any harm to openness of the Green Belt necessarily made the application inappropriate development. 

6.    The visual impact is indisputable, and I would encourage the Committee to refuse on the grounds of inappropriate development in the Green Belt.

 

Victoria Yeandle, applicant’s agent made the following points:

 

1.    The application is for a temporary period. The development proposed will be in place for 18 weeks and form an enclosure around the temporary oil and gas exploratory well site.

2.    The security environment has changed substantially since the 2015 consent was granted.  It is now standard industry practise to have enhanced security on sites, even for conventional on-shore oil exploration wells. 

3.    Europa has a duty of care to protect its employees and the public at large.  The temporary security fence will maximise the safety of the operation.

4.    It was acknowledged that there would be some impact on openness on the Green Belt, however it is a temporary proposal for 18 weeks and entirely reversible.

5.    In close proximity, the fencing and welfare facilities would be noticeable, however this would be temporary and any visual harm is outweighed by the short term nature of the development.

6.    The development is located within Forestry Commission managed woodland and is enclosed by woodland on all sides.  No trees will be removed to facilitate the development.  The deer fence posts will be driven in to the ground to avoid tree roots and root protection zones.  The welfare facilities, office and WCs would be placed in an area where there are no trees.

7.    There will be a total of 28 vehicular movements.  This comprises of eight vehicular movements to drop off and collect the fencing, and 20 vehicular movements to drop off and collect the welfare facilities.

8.    There will be no additional external lighting, and a condition will be imposed to reflect this.

 

Hazel Watson, Local Member, made the following points:

 

1.    The site is in an AONB and Area of Great Landscape Value.

2.    The proposed fencing and structures do not preserve the openness of the Green Belt, therefore constituting inappropriate development in the Green Belt.

3.    The fencing would be one metre from Coldharbour Lane and therefore of an adverse visual impact for visitors and local residents.  Furthermore, fencing being one metre from the road would obscure sightlines and therefore road safety would be compromised. 

4.    Application enlarges the site by 25%.  It is questionable whether the Planning Inspector would have approved the application for oil exploration in 2015, as he relied upon the lack of visibility from Coldharbour Lane when making his decision.

5.    If this application is inextricably linked to the oil exploration, then the same conditions should apply.  Condition 6 would therefore mean this application would not be permissible.

6.    Request the Committee to vote against this planning application.

 

Key points raised during the discussion:

 

1.    The Planning Officer introduced the report, and advised Members of a correction to the number of representations in the report summary.  The correct number of representations was 378.

2.    A Member commented that given the temporary nature of the application, he was supportive of the application.  A suggestion was made that an informative could be added to emphasise that the CPA would not be minded to support any permanent fencing beyond the 18 weeks, or extension to the permission.

3.    A Member stated that as the proposal would not preserve the openness of the Green Belt.  The applicant should have considered earlier in the process whether additional security or additional facilities would have been required.  It was added that traffic arrangements had not been properly explored and that delivery of fencing and facilities would cause difficulties on Coldharbour Lane.

4.    Members sought clarity on some points raised by the public speakers; particularly regarding whether this was a freestanding application or not; some detail about the existing fence and the injunction mentioned; and clarity of planning reasons as to why the footprint would be enlarging by 25-30%.

5.    The Planning Officer explained that the application was freestanding in that it has its own red line boundary and cannot be a section 73 to the hydrocarbon wellsite.  It is however inextricably linked to the hydrocarbon wellsite and the Secretary of State, when screening for the EIA, said that it should be seen as an overall project.  The proposal would not be required unless the wellsite had permission and wasn’t moving forward.  The Planning Officer was unable to provide details of the terms and conditions of the injunction as she had not seen a copy of it other than to assume it was so that if people were on the land they could be removed.  Regarding the existing fence, the Planning Officer explained that the fence was to protect the groundwater boreholes that were sunk in 2017.  It was confirmed that the existing fence does not cover the full extent of the application site.

6.    The Planning Development Manager informed Members that the Planning Inspector did foresee the potential need for additional or different fencing proposals to those included in the original application. In Paragraph 105, the Inspector said “The Environment Agency (EA) believes that the initial proposals for the fence surrounding the site may need to be reviewed to ensure that there is adequate site security.” 

7.    The Planning Development Manager also clarified the officer report stance regarding harm to Green Belt.  Previously, the report set out limited harm, mitigated by the need, limited duration and full reversibility of the development.  On the basis of case law and legal advice, officers have taken the view that, due to the need, the short duration and full reversibility, there is no harm and openness is preserved.  The Planning Development Manager referred to case law (Samuel Smith vs North Yorkshire), whereby the term ‘preserve’ was defined as ‘to keep safe from harm’ rather than ‘to maintain a state of things’.  This site would be kept safe from harm as it would be restored to forestry use and would not impact on the openness of the Green Belt. 

8.    A Member commented that modern companies should know that environmental activists would be at the forefront of such an application, campaigning to protect the AONB, so this should have been pre-empted and included in the previous application. 

9.    A Member stated that the case provides mitigation and is fully reversible.  It is not just a case about whether there is harm or not to the Green Belt.

10.  A Member questioned how long the protestor camp had been erected for.  The protest camp moved onto the site in November 2016.  They were there until June 2017 when Europa obtained an injunction to remove them from the site, and they have since moved to the other site of the Lane.  The Member further commented that the protestor camp is equally inappropriate in the Green Belt and that 18 weeks of fencing in the Green Belt was a better solution.

11.  The Planning Officer clarified that the increased scale of the site is due to having a patrol zone all the way around the site.

12.  Mr Stephen Cooksey moved a motion to refuse the application due to inappropriate development in the Green Belt which is harmful to the openness of the Green Belt and the visual amenities of the Green Belt.  He added that there were serious highway issues that depend on the Traffic Management Plan which does not exist.  There were 4 votes for this motion and 5 votes against, therefore the motion was lost.

13.  Members sought clarification as to whether this application, if granted, would expire on 8 August 2018 in line with the expiry date of the oil exploratory planning permission.

 

The meeting was adjourned at 11:41am whilst this point was clarified. 

The meeting was reconvened 11:50am

 

14.  The Planning Officer explained that Condition 3 in the report would be amended to include a reference back to the appeal decision, stating “Within 18 weeks of the commencement of the development hereby permitted, all buildings, fencing, the generator, the water and fuel cell and the ramp connected therewith, on or related to the application site (including any hard surface constructed for any purpose), shall be removed from the application site; and the application site shall be reinstated to a condition suitable for forestry on or before 7 August 2018.”

15.  Officers clarified that by amending this condition, this tied it into the mineral extraction application so they will both expire on 8 August 2018.

16.  The Chairman moved the motion to permit, subject to the amended conditions. There were five votes for and four votes against, therefore the motion was carried.

17.  The Chairman advised the applicant’s agent that the officer team and LHAG would welcome early insight into the applicants plans for its next steps.

 

 

RESOLVED:

 

That application MO/2016/1563, Land at Bury Hill Wood, Coldharbour Lane, Holmwood, Surrey, RH5 6HN be PERMITTED, subject to the conditions and informatives listed in the report, information included in the update sheets and the amended Condition 3 as agreed at the meeting.