Condron v National Assembley for Wales

Introduction

This is an application under Section 288 (1) of the Town and Country Planning Act 1990 against the decision of the 11 ^th April 2005 of the National Assembly for Wales ("the Assembly"), which granted planning permission to a developer, Miller Argent (South Wales) Limited ("Miller Argent"), to carry out opencast mining and related removal and reclamation operations at a large site near Merthyr Tydfil called Ffos-y-fran. The Developer's proposals had generated a great deal of comment and interest, both in support and against, and there had been an Inquiry at which numerous objectors, both individually and by way of informal associations, spoke against the development. They were not legally represented. The planning permission had been "called-in" so as to be determined by the Assembly itself which, by way of its standing orders, then delegated the matter to a committee convened to deal with this particular application, the Planning Decision Committee. Planning permission was granted but subject to many conditions.

On the 19 ^th May 2005 one of the objectors, Mrs E.C. Condron, lodged Grounds of Appeal (since amended). She appears before me by Mr George Q.C. leading Mr Booth. The developer, who had been represented at the Inquiry by Mr Price-Lewis Q.C., is now represented by Mr Lindblom Q.C., Mr Price-Lewis Q.C. and Mr J. Pereira. The Local Authority, Merthyr Tydfil County Borough Council, supporting the grant of permission, was represented at the Inquiry by its Head of Planning; it is not now represented. The National Assembly for Wales, which made the decision of the 11 ^th April, is represented by Mr Rhodri Williams.

The Ffos-y-fran site consists of some 400.6 hectares of land, largely elevated urban common land, to the east of the Merthyr Tydfil and about 2 kilometres from that town's centre. Dowlais is closer than that, to the north-west of the site. Along the site's western edge now runs the A4060 (T) trunk road, the width of which alone separates the settlement of Mountain Hare from the site. To the north- east of the site and immediately adjoining it is the Trecatti landfill. There has been little discussion about the lay-out of the east and of the furthest southern part of the site but at the south of the western part of the site there is a road called "the Bogey Road", running roughly east-west along the boundary of the site and on which is to be found a clutch of residences called "Incline Side". The application site lies wholly within Merthyr Tydfil County Borough and the greater part of it is classed as derelict and unsightly, containing in part (and grassed over to a greater or lesser extent by a merciful nature) former waste tips, not always detectable by the naked eye, and the residues of earlier operations.

The residents of Mountain Hare, as they turn their eyes towards the site, see first, a little higher than they are, the A4060 (T) trunk road (two lanes wide in each direction) and then, running parallel to the road, the boundary of the site, and then, almost immediately inside that boundary, a steep man-made bank to a height of about 15–17 metres above the level of the road. There is no constant distance between the edge of the site and the proposed edge of workings; that distance varies greatly from one part of the site to the other. So far as concerns Mountain Hare, the proposed workings, partly consisting of the shifting of the earth and overburden currently in place and partly, then, of opencast mining, will take place a little short of the top of that steep bank, then moving further away as works progress. At Mountain Hare the closest limit to the proposed working lies at a distance of some 40 metres or so, give or take a few metres, further back from the boundary of the site. One objector, Mr W.T. Evans, at Mountain Hare, whose house faces the trunk road, has the front wall of his house about 37 metres from the site boundary and at perhaps 60–70 metres from the nearest point of the proposed workings. Certainly there will be proposed workings which will lie well within 100 metres of the front wall of his house.

14 dwellings lie in the band of being between 0–100 metres from the proposed workings on the site (12 at Mountain Hare, 2 at Incline Side), some 27 dwellings in the band between 100–200 metres, thus making 41 dwellings within 200 metres of the proposed workings on the site. The Inspector notes there to be 61 dwellings within 200 metres of the site boundary. To judge somewhat crudely from the scale on the plans, no house of the 15 or so at the Mountain Hare cluster north of the roundabout is more than about 150 metres from the proposed workings.

The most common wind (up to 25% of the time) is from the South West; the second most common (15%) is from the North East. The former leaves Mountain Hare and Incline Side upwind of the site, the latter leaves them downwind of it.

A brief chronology

On 30 ^th April 2003 Miller Argent submitted its planning application, which, on 1 ^st December 2003, was called in by the Assembly under the provisions of section 77 of the 1990 Act. It was called in because the proposed development raised issues of more than local importance in that it would have wide effects beyond the immediate locality. The Local Planning Authority, Merthyr Tydfil County Borough Council, decided to support the proposal. Mr Clive Nield BSc, C.Eng, MICE, MCIWEM ("the Inspector") was appointed to conduct an Inquiry ("the Inquiry") and in that capacity sat for 8 days in September 2004 to hear witnesses and argument. On the 8 ^th November 2004 he lodged his report ("the Inspector's Report") with the Assembly. He recommended that planning permission should be granted subject to conditions which he annexed.

On 3 ^rd February 2005 the Planning Decision Committee of the Assembly (to the composition of which I shall need to return) met. They had before them the Inspector's Report and the Assembly's Planning Division's Officers' Report. The officers agreed with the Inspector that the scheme proposed would be in accord with the development plan and national policy and that the benefits outweighed the objections. About 60 letters of objections to the Scheme had been received by the Assembly as well as a Petition against it with some 3,400 signatures. The Committee ("the PDC") were advised by the officers that the matters raised since the close of the Inquiry had mostly been dealt with at the Inquiry and in the officers' view would not materially affect the decision. The PDC resolved (adopting the officers' recommendation) to indicate to the parties that it was minded to grant planning permission subject to submission of a completed section 106 Agreement and subject also to the conditions proposed by the Inspector, with amendments suggested by the officers. The PDC authorised the detail of the grant of formal permission to be dealt with, including review of the section 106 Agreement and the final formulation of the planning conditions, by officials on its behalf.

By a letter of 7 ^th February 2005 the Chairman of the PDC, Mr Carwyn Jones A.M., wrote to Miller Argent, with a copy to Merthyr Tydfil's Head of Planning, indicating that Miller Argent was invited to conclude a section 106 Agreement as described in the letter within 3 months and that on receipt of a satisfactory one a grant of planning permission implementing the PDC's decision of 3 ^rd February would issue. The letter indicated that the PDC had reached their decision taking account of all correspondence raised after the hearing had ceased and that they were satisfied that it raised no new evidence or new matter of fact which would materially affect their decision. There was still no planning permission formally granted.

On 16 ^th March 2005 there was a debate in the Assembly of some relevance to the case before me. The Assembly from time to time makes proposals ("bids") to the Westminster Parliament as to primary legislation which it suggests should be passed with respect to Wales. On the 16 ^th March the Assembly had before it in substance a proposal from the First Minister "to pursue theseproposals with the UK Government and press for primary legislation which reflects the particular needs of Wales ….". Many amendments were proposed so as to signify what "these proposals" were to be. Jocelyn Davies A.M. had proposed, inter alios, an amendment 7 which was described by the Assembly's Minister for Environment, Planning and Countryside, Mr Carwyn Jones (the same gentleman as the Chairman of the PDC) as referring to the need for the Assembly to be able, effectively, to impose a 500 metres separation distance between opencast workings and residential homes. The Minister opposed the amendment on a point of order on the basis that the Assembly already had that power. The Assembly's Presiding Officer ruled that the amendment was in order and it was then debated. I shall return to some of the things said in the debate but it suffices at this stage to say that after a rather bad tempered debate (there were accusations of...