To consider a report from the Acting Executive Director – Economy and Infrastructure.
Members had before them a report from the Acting Executive Director – Economy and Infrastructure which explained this was an Addendum to the previous report on the planning application for the development of a new underground metallurgical coal mine and associated development at the former Marchon site (High Road) Whitehaven. The previous report was considered at the Development Control and Regulation meeting held on 19 March 2019. The addendum report considered the implication of a potential challenge to the decision made in March 2019.
The Development Control Manager referred members to the update sheet, which contained details of the late representations and objections received.
In March 2019 the Committee resolved to grant planning permission for the Mine, subject to conditions and a Section 106 agreement to secure various obligations including highway and heritage improvements and also a restoration bond. The s106 agreement was nearing completion. However the Secretary of State had issued a direction under article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. This prevented the release of the Council’s decision until the Secretary of States decided whether to call in the application to determine it himself.
On the 21 June 2019 the Council received a letter from Leigh Day Solicitors acting on behalf of “Keep Cumbrian Coal in the Hole” (KCCH) who were one of a number of objectors to the planning application. The letter contended that there had been material changes in circumstances since the Committee`s resolution that required the application to be reconsidered by Committee. The letter also contended that there were a number of alleged flaws in our Original Committee Report that could form the basis of a legal challenge to the Council’s decision.
The County Council had reviewed the contents of the letter carefully and decided to address those matters in an Addendum to the original Committee Report, given the time available due to the Secretary of State’s direction. This report itemised each of those issues and provided the Council’s response to the issues raised. The opportunity had also been taken to propose adding an obligation to the S106 Agreement for a financial contribution to the Council to ensure that works to the access with the junction with the public highway and necessary improvements to the Mirehouse Road/St Bees Road junction were carried out. The works were necessary to ensure the safe access and egress to the site and at the Mirehouse Road/St Bees Road junction and this had been agreed with West Cumbria Mining.
Normally the only recourse to challenge a decision to grant planning permission was a Judicial Review after the planning permission had been issued. However because the County Council had yet to release the formal decision notice, Leigh Day has raised the issues in advance and the additional agreed S106 obligation, it was considered appropriate in this particular instance for the Committee to ratify its original decision having considered the issues raised and the additional S106 obligation.
The Council needed to consider whether any alleged new factor would have been capable of affecting the outcome of the Committee’s decision. What was required was a change that might have had a material effect on the Committee’s deliberations had it occurred before the decision was made. The crucial question was whether the new factor might have led the Committee to reach a different decision.
It was considered that neither the liquidation of British Steel, nor the change to a zero net carbon target would have led to a different decision. However, given that the Committee was being updated in this report on other matters, for completeness and, as a matter of prudence, these matters were addressed in the main body of the report.
Leigh Day had challenged the County Council on what they perceived to be a failure by the council to consider greenhouse gases (GHG) resulting from the mining operations.
The greenhouse gas emissions of the mining operations were not estimated, because the officer assessment in the original Committee Report proceeded on the basis that coal production at Whitehaven would substitute for coal production elsewhere. Therefore, it was considered that the greenhouse gas emissions of the mining operations would be broadly carbon neutral.
Whilst the greenhouse gas emissions of the mining operations were very likely to be carbon neutral, it was still considered that some carbon savings must exist from reduced transportation distances associated with the more locally sourced coking coal at Whitehaven, as noted in paragraphs 6.43 and 6.46 of the original Committee Report. This supported the original recommendation in the Committee Report.
Leigh Day had also issued a challenge that there had been a failure to consider the need for, and GHG impacts of, middlings coal.
In the original Committee Report at paragraph 6.68 middlings coal was assessed as a by-product of coking coal alongside waste (predominantly rock). In other words it would be extracted from underground at the same time. By implication therefore it would produce no more CO2 emissions than that necessary to extract coking coal.
In acknowledging the valid arguments made in respect of climate change and the middlings coal, officers were clear that this issue was weighed in the planning balance, but was not considered of sufficient weight as to justify the refusal of the planning permission for the extraction of coking coal, or to require a condition requiring disposal of the middlings coal product within the mine in order to make the development acceptable, as there were other determinative factors as set out above and in paragraphs 6.70, 6.71 and 6.74 of the Original Committee Report, including that there would be a condition restricting the output of middlings coal from the mine to a maximum of 15% as considered necessary as a matter of planning judgement.
With reference to the alleged failure from Leigh Day that the County Council had to consider the GHG impacts of an increase in coal production, the ground of alleged error was based on the assumption that the Whitehaven mine would add substantially to the global stock of fossil fuels and thereby increase the likelihood of GHG emissions. However, it was not considered that this was likely to be the case and this point had already been covered in paragraph 4.1 a); of the report.
The middlings coal by-product of the coking coal was addressed in 4.6 b) in the report.
Leigh Day contend that the Whitehaven mine could depress the worldwide price of coal, which in turn could lead to an increase in demand. This was acknowledged as a duly made objection in paragraph 6.45 of the original Committee Report, and this issue was addressed in paragraphs 6.46 and 6.47 of the previous report.
The whole basis of the view now and then was that there was only a finite demand for steel and if capacity was added to the supply of coking coal, it was very likely that coking coal producers further afield would reduce their production whilst they sell off their surplus stocks and that coking coal produced from a mine in the proposed location would end up as a substitute for coking coal produced further away. As such, we consider that worldwide prices would generally be unaffected.
The final challenge was that Leigh Day considered the County Council had acted unlawfully by failing to apply Policy ENV2 of the adopted Copeland Local Plan.(2013-2028).
Policy ENV2 was not listed as a relevant Policy at paragraph 6.5 of the original Committee Report. Although not listed, officers took full account of the policy in the original Committee Report and considered it to be relevant to the application. A Policy does not have to be specifically referred to by name as long as it was clear it was otherwise fully considered.
The Original Committee Report stated that “Works would also be carried out to the Mirehouse Road/St Bees Road junction where the turning radius will be adjusted to improve the operational safety of the junction” (paragraph 6.267). Improvements were also needed to the Mirehouse Road/rail load facility access road junction. These works were necessary in relation to the development and the applicant had agreed to fund the Council to do the works as part of the S106 Agreement. It was proposed that the additional financial contribution would be added to the Agreement. Members noted this positive development.
The Development Control Manager said it was unusual to have such a long gap in time between Committee making a resolution and the release of a decision, but this had been unavoidable, given the Secretary of State direction to the Council not to grant planning permission until further notice from him.
However, this had given Officers the opportunity to update and advise the Committee on the matters raised by Leigh Day, along with seeking Committee approval of the additional S106 contribution.
The Development Control Manager was content on the basis of this report that there was nothing that would warrant a different recommendation or that would put the Council’s original decision at significant “risk”. He reminded members of the need to take into account all of the previous material considerations as updated by this report, including the previous representations and objections.
He was of the opinion that the proposed development accorded with the Development Plan as a whole, and recommended that planning permission be granted and there were no other material considerations that indicated otherwise.
The Chair then opened the meeting to public participation, with the following representations being heard:-
Ms M Mason was the first to speak. She asked members to defer a decision on the report today and requested a further investigation of all the relevant changes in circumstances since this committee’s decision to approve Planning Application 4/17/9007 in March this year.
She felt that further investigation was needed as officers had clearly not had time to research the climate emergency, UK plans for “Clean Steel” and hydrogen technology, or legal precedents in other planning applications for coal.
The “net Zero emissions by 2050” target referred to had already led to new government schemes to decarbonise steel production in the UK. These sought to replace coal as a reducing agent in steel production with first gas and then low carbon hydrogen (probably from sea water powered by off shore wind energy). Together with improvements to reduce impurities in scrap steel, and the use of electric arc furnaces for recycled steel production, it was no longer true that coal would be needed to make steel.
Emissions from end use of the coal were far, far higher than those from the extraction process and the much smaller “saved” emissions from transport that this council had pretended “balance” to make the proposal “carbon neutral”, and whether “end use emissions” should be included in planning considerations was a current issue in planning case law.
The planning application approval in March was at risk of further legal challenge which would not remedied by ratification today. In March Ms Mason pointed out serious flaws in the weighing of harms and benefits, as the DC&R report claimed 500 jobs for 50 years (based the output and longevity of the whole mine, under land and offshore) whilst only assessing the adverse impacts of the onshore development. No EIA of the impacts of undersea development (as opposed to near shore impacts of the under land development) had been considered in the EIA scoping, probably due to the complication of the Marine Management Organisation (MMO) portion of the mine. This would not have been a problem if an estimate of the benefits from development and extraction related to the planning application area only had been compared with the identified “harms” of the same area.
The approval of 2.78 Mtpa of coal extraction for 50 years was incompatible with government policy, and incomprehensible in the light of the climate emergency and the scientifically proven need to halve emissions in the next 10 years.
So for the sake of children and grandchildren, and the reputation of Cumbria County Council, Ms Mason asked members to defer this decision.
Ms M Birky spoke on behalf of Keep Cumbrian Coal in the Hole, a campaign by civil society group Radiation Free Lakeland.
With reference to being Carbon Neutral the overriding and often repeated message from the council’s reply to Leigh Day’s questions was that the mine would be “broadly carbon neutral”. This assumption was crucial; yet, neither the addendum report, nor in fact any of the underlying application documents, provide the evidence to support it.
It seems that this “carbon neutral” claim was simply based on vague assumptions that “coal production at Whitehaven would substitute for coal production elsewhere.”
Clearly, the consideration of the likely emissions output from this development was absolutely key for any decision made by this committee. The Committee must come to a reasonable conclusion on the expected level of greenhouse gas emissions that would be produced over the next 50 years. It must do so, so that it can decide how much weight to give to that factor in the planning balance. The Applicant had simply failed to provide the Committee with sufficient information to carry out this task – this was a key point highlighted in the Leigh Day letter and it had not been addressed by the addendum report – which merely reiterated assertions about how the market mightrespond to the increased output in Whitehaven.
Officers had acknowledge that the demand for coking coal was led by the demand for steel. However there was no acknowledgment in the report that technology and politics had moved on with the Department for Business, Energy & Industrial Strategy (BEIS) announcing in August, new measures to “enable a pathway to lower carbon steel production and support broader efforts to decarbonise industry”. Nor was there any recognition of the possibility that greater supply of coking coal might impact on worldwide prices, with a real chance that demand would increase due to reductions in the price.
MsBirkby felt that in relation to middling coal, to describe up to 15% of production as a “by-product” was disingenous. It was a significant amount of production, in and of itself, and members should not be distracted by this type of terminology. The level of middlings coal produced could easily be a development in itself, so the impacts of it needed to be fully considered.
MsBirkby also referenced C02 emissions, middlings coal, net zero targets for climate change and carbon savings in her presentation to the Committee.
The next speaker was Dr Henry Adams objecting on behalf of SLACCtt to the proposal to ratify Cumbria County Council's previous decision to approve the above planning application, as recommended by the new addendum report submitted to the October 2019 Development Control and Regulation Committee.
He was asking Cumbria County Council to defer this decision until members and officers had thoroughly studied and addressed the highly relevant developments since the Leigh Day letter.
SLACCtt considered that the new addendum report failed to address the very relevant recent changes to government policy as regards the decarbonisation of the UK Steel Industry, as well as other important factors.
Dr Adams felt that the addendum report had failed to take any account of the decarbonisation of steel – both worldwide and being planned for the UK, recent changes in government policy direction of travel, and the magnitude and scale of carbon emissions which would result from WCM Ltd’s proposal for Whitehaven, Cumbria, in comparison with the carbon emissions of Cumbria and the UK.
Mr Giles Archibald, Leader of South Lakeland District Council was next to speak.
While he appreciated that this was a very difficult decision, he asked the committee to consider rejecting or deferring the decision.
He felt that in the papers provided, the impression had been given that there would be no net impact on greenhouse gas emissions. This assumption that there would be no net increase in greenhouse gas emissions was not proven and indeed was highly optimistic. Mr Archibald’s understanding was that the fossil fuel could be used for more than just steelmaking. There was no evidence that the normal laws of supply and demand would not apply here. He asked the Committee what evidence it had that producers elsewhere would cut coal production as a result of this mine opening?
The presumption must be that as production was increased so the price would fall and demand would rise. Thus GHG emissions would increase.
He was also concerned that there was no estimate of the greenhouse gas emissions caused by the disturbance of the land nor any estimate of greenhouse gas emissions caused by the extensive use of concrete.
Mr Archibald understood the desire of the committee to create economic activity in the area; however this was economic activity which caused social harm beyond our own shores. It was also based on disingenuous forecasting.
While he recognised how tough a decision it was, he urged the Committee to consider taking that decision.
The Chair then invited the applicant to address the Committee.
Mr Mark Kirkbride, the Chief Executive of West Cumbria Mining addressed the members.
He said that whilst West Cumbria Mining was very much aware of the climate aspects of the project, and the high level of focus upon climate change and greenhouse gas emissions, 3 separate round of consultation had been undertaken on this, and whilst 20-30% of the responses were objecting to the proposals 60-70% of the responses were in favour of the project.
He did not feel the objectors were presenting any new or relevant evidence today, which had not been considered previously.
The current consultation from Government on Climate Change was a call for evidence, to inform future policies, it was not a change to the current policy, and should not be considered in relation to this application.
The Chair thanked all of the speakers for coming along to express their views.
Members understood the strength of feeling amongst the objectors to the application, but felt that to move forward with climate change steel would be needed to produce wind farms, trains and bus infrastructure, all of which were part of the plans for a greener future. There was no other way of producing these at present.
Members had difficult choices to make and the economic benefits of this mine to the community in West Cumbria could not be overlooked. West Cumbria needed to diversify and the need for employment opportunities was crucial in this location.
The recommendation was proposed and seconded, and put to a vote. With 14 for and 0 against it was
RESOLVED, that having considered carefully the details of the letter from Leigh Day Solicitors, Committee resolve to ratify their original decision that Planning permission be GRANTED subject to:
(i) the Committee determining the application on the basis of the reasons set out in the Original Committee Report as updated by this Addendum Report;
(ii) the conditions set out in the Original Committee Report;
(iii) the applicant (West Cumbria Mining) and other relevant interest holders first entering into a Section 106 legal agreement with the County Council covering the heads of terms set out in the Original Committee Report and an additional financial contribution of £68,327 index linked for improvements to the Mirehouse Road / St Bees Road junction and the Mirehouse Road/rail load facility access road junction; and
(iv) The Secretary of State withdrawing the direction preventing the Council from granting planning permission.
The meeting then adjourned at 11.05 and reconvened at 11.15am.
Mr F Cassidy arrived at the meeting at this point.