Development Control - How are decisions made?

Development control is the technical term for the procedures that operate to ensure that the decision about whether to permit a particular mineral application is made in the appropriate way. The "plan-led" system means that the criteria for making that decision will be based on the LDDs or Minerals and Waste Development Documents. It also includes the setting and enforcing of conditions by the MPA, to ensure that benefits are optimised and any negative impacts are minimised. Figure 6 shows the range of different mineral sites that have to be monitored by one MPA, in this case Leicestershire County Council.

Click to Enlarge (sites accurate in 2004).

What follows is an overview based upon a document published by Rotherham Metropolitan Borough Council called Working with Minerals, which can now be found on their website (here). It goes through the process step by step and attempts to clarify each stage. An approximate timetable for each part of the process from the Mineral Planning Officer's perspective is given in the interactive graphic below. The timetable assumes that if an Environmental Statement is required then it is submitted at the same time as the application. If not, there will be a massive delay.


A .pdf version of the above timetable can be downloaded.

Application Process (14K)

The Application Process

An application to open or extend a mineral working must be made to the MPA covering the local council area in which the mineral occurs. It should normally be in conformity with the development plan for that area. Applicants are strongly advised to discuss their intentions with the officers of the relevant minerals planning authority before making a formal application. This can help in identifying potential problems that need to be addressed, confirm whether EIA is necessary and reduce the need for the authority to request additional information later. This may save considerable time and money on both sides. It is also wise for the developer to discuss the proposals with the local community so that specific concerns can be heard and resolved as far as possible.

The application will comprise a set of forms, drawings and plans, as well as information about the land ownership and the appropriate fee. It includes a fully detailed scheme of working designed to minimise environmental problems during operation of the site and ensure good restoration and aftercare. An Environmental Statement (ES) is required if the site is over 25 hectares in area (100 hectares for peat). If the site is less than 25 hectares the decision on whether or not an EIA is required is made by the MPA on the basis of whether or not the proposal is likely to give rise to significant environmental effects. In practice, this applies to many minerals applications. A direction can be sought from the CLG if there is disagreement about the need for EIA.

As an environmental statement usually takes many months to prepare, it is advisable for the applicant to determine whether an EIA is required at a very early stage. An applicant that is uncertain whether an EIA will be needed can seek a formal "screening opinion" from the relevant MPA. If EIA is required, then it is wise for the applicant to seek a formal "scoping opinion" from the MPA as to the matters to be included in the Environmental Statement. This will reduce the need for additional information to be sought by the MPA and provided by the applicant at a later stage.

The CLG have published a number of guides which should be referred to for further information regarding (EIAs). These are written for all projects and developments, not just for mineral workings.

• Environmental impact assessment: guide to procedures²⁹⁷
• Note on environmental impact assessment directive for local planning authorities²⁹⁸
  This note, in the form of answers to frequently asked questions, offers a brief and basic introduction to the EU EIA Directive (found in Appendix 1 of the above document), the Town and Country Planning (EIA) (England and Wales) Regulations²⁹⁹ and planning authority responsibilities.
• Further sources of information from the CLG can be found here.

To give some indication of the sort of areas that would be covered by a Planning Application with an EIA, a check list used by an operating company is given below.

Planning Application Manager (22K)

Some Authorities have guidelines to help complete the application forms, such as those produced by Gloucestershire County Council. The information required will be in accordance with the provisions of the Town and Country Planning (Applications) Regulations 1988³⁰¹. Further guidance is provided by MPG2²⁸⁵ and MPG7⁶⁸

The applicant (guided by the MPA) will publicise proposals by posting notices on site, placing press notices in local newspapers and by directly notifying occupiers of properties likely to be most affected. A brief description will be given, along with details of where a copy of the application can be inspected and how comments and representations can be made.

There is often a detailed procedure for publicising planning applications and notifying people who may be affected. These details will be available from the appropriate Council (e.g. Exeter City Council) and exist so that the views of the public can be obtained and considered before the application is determined.

Details of all current planning applications and past decisions are kept in what is known as the "Statutory Register". Anyone can see this register in the Planning Department and anyone can comment on an application within 21 days of it being publicised.

It is important that any objections are made on the basis of planning issues and not on a person's personal preferences or fears, as these cannot be taken into consideration by the MPA. All comments are recorded and kept as part of the Statutory Register.

Assuming that the application is submitted using the correct procedures and contains the required information, the decision to give permission or not will be guided by the relevant development plans (see next sections). It has already been stated that these plans are extremely important. Indeed, legislation (Planning & Compulsory Purchase Act 2004²⁶³ ) requires that "decisions made should be in accordance with the development plan unless material considerations indicate otherwise". Development plan policies provide a firm basis for rational and consistent planning decisions. They give everyone concerned with development in an area a measure of certainty about what kind of development will and will not be permitted during the plan period. However, they do not have to be adhered to rigidly by the MPA if there are sound reasons for taking some other course of action. Where an authority wishes to approve an application that does not conform with the approved development plan, this will be referred to the Secretary of State as a departure from the development plan. The Secretary of State will then decide whether or not to recover the application for decision or to allow the MPA to proceed.

Some of the other factors that will be taken into consideration include impacts on the environment, population and local amenity, the likely duration of a working, the likely final appearance and use of the site and the likelihood of beneficial restoration once working has ceased.

It is important to realise that an MPA cannot refuse an application simply because a lot of people object to it. Their priority is to assess it with reference to the development plan, weigh up the benefits and losses in terms sustainability, and come to a legally defensible decision..

In coming to a decision the MPA will consult broadly with a number of statutory consultees and other relevant organisations as necessary (Table 5), to gain their perspectives on the impact of an application. Some of these agencies such as the Environment Agency and Natural England will advise on consent limits which may have to be imposed, or on mitigating measures which should be undertaken through planning conditions if the proposal were to be approved.

It is up to officers of the MPA to look at the application and weigh up the benefits against any impacts, so that the Mineral Planning Officer can make a recommendation to the Council Planning Committee to either accept or reject the application. This report will include the views of all interested bodies consulted in the planning application, including letters of objection or petitions from local residents.

It should be understood that if the application is in line with the development plan and demonstrates (usually through an EIA) that sustainability is being safeguarded, then the presumption is that the application will be recommended for approval. This gives an indication of how important and influential the development plans are. It is then up to the elected members of the Council's planning committee to make a decision, taking the recommendation of the minerals planning officer for the authority into account.

Normally, planning applications have to be determined within 8 weeks or 16 weeks if there is an ES in support of the application. However, because there are often complex issues involved in minerals applications an extension may be agreed and a year or more for determination is not unusual.

Members of the public can attend committee meetings dealing with planning applications. In many cases there is the opportunity to speak briefly to ensure that the committee is aware of their views. However only elected members of the council can vote on the decision itself.

It is not always the case that the Council Planning Committee will accept the Mineral Planning Officer's recommendation and it is possible for other local considerations to influence the Committee's decision. It should be noted however, that if the decision is not in line with the development plan, there is a stronger chance that an appeal against refusal would be successful. Moreover, if an application is not dealt with properly or is successfully challenged in the Courts, then the MPA may be required to pay the applicant's costs.

If a proposal does not conform to the approved development plan but the MPA is nevertheless minded to approve the application, the Secretary of State must be notified and can decide to determine the application himself. In practice, this power is used sparingly.

If planning permission is granted, there will normally be a series of conditions attached to ensure proper environmental monitoring, sound working practices and appropriate restoration and aftercare. These, therefore, will cover some operational factors such as the scheme of working and hours of operation, restoration plans and the control of traffic, noise, dust and vibrations.

Two examples of permissions for mineral working from Leeds City Council can be downloaded below. Each document has two columns, with the conditions that the Mineral Planning Officer set, together with comments about why the clause has been added and what guided the particular value or level stipulated.

Opencast Coal Decision Notice (93K)
Sand & Gravel Decision Notice (120K)

If the applicant disagrees with the grounds for refusal of an application, or they think the planning conditions are unreasonable, they can appeal. An appeal can also be lodged if the MPA does not decide the application within a reasonable period of time. All appeals are considered by a Planning Inspector. Most are handled in writing, some are examined at a hearing before an Inspector and a smaller proportion are decided after a public inquiry. Usually an appeal must be made within three months of the initial decision. The final recommendation to the Secretary of State will be formulated by the Inspector, but for larger or contentious cases, the Secretary of State may determine the application directly.

Full details of the appeal procedure can be found on the Planning Inspectorate Web site. Appeals which are decided by the written procedure are governed by The Written Representations Regulations 2000³⁰⁰. The timetable for the written procedure is designed to make the appeal proceed quickly and fairly.

If the applicant or the MPA do not agree to the written procedure, there will be a hearing or inquiry instead. Hearings are less formal than inquiries and usually involve an open discussion led by the Inspector. The applicant and the MPA can ask for a hearing, but it is not a statutory right. Hearings³²² and Public Inquiries³²³ are both governed by their own regulations. Sometimes the Planning Inspectorate will decide that an inquiry is necessary. The rules that govern appeals decided by inquiry are called the Inquiries Procedure Rules³²³.

The MPA's job is not finished when an application is approved as it is responsible for monitoring an operation scheme from start to finish and in the subsequent restoration/aftercare periods. The first approach to any breach of planning conditions will be to discuss the issue with the operator and to agree steps to deal with the problem. Where agreement cannot be reached, the MPA may need to consider using its powers of enforcement to resolve any breach of planning control, if necessary, before the Courts.

Planning Contributions

Planning conditions concern those matters relating to the site itself that are subject to planning control. In some circumstances it may be appropriate to mitigate effects on the wider environment and on the public through other means if the applicant is willing. This may be done by the MPA entering into a legal planning contribution. Such planning obligations were secured under section 106 of the Town and Country Planning Act 1990⁹⁶. These agreements have variously been referred to as 'section 106 agreements', 'section 106 legal agreements', 'planning agreements' or 'planning obligations'. However, they have recently been superseded by planning contributions under section 46 of the Planning and Compulsory Purchase Act 2004²⁶³. The relevance and application of such agreements to mineral workings are laid out in MPG7¹⁷⁶.

Further information on planning contributions can be found in Annex 2 in the Planning section.