Object

Representation ID: 99530

Received: 16/12/2022

Respondent: Dr L David Ormerod

Legally compliant? No

Sound? No

Duty to co-operate? No

These comments are limited to the Single-issue Silica Sand Site Selection process. It is of considerable concern when the NMW Local Plan policies accommodate a clear avoidance of the public interest.

NPPF (2012) paragraphs 9, 16 (c) 'note that communities are the first stipulated partner', 39 (pre-application) and 42 (statutory planning consultees role in pre-application) are quoted.

Background
The first rendition of the Silica Sand Review was subject to two 6-week direct consultation periods with the statutory and general consultees, in April-May 2015 and in November-December 2015. NMWLP documents were published to discuss the consultants' views. A process of revising the boundaries of areas of search to address significant constraints, led to the removal of AOS B, AOS C, AOS G. and AOS H which were considered undeliverable as a result. The Pre-submission version of the Silica Sand review were subject to a representation period between May 16 and June 27, 2016, but it failed to attract many public comments other than for AOS A in Snettisham, Ingoldisthorpe, and Dersingham, which was subsequently dropped. SIL 01 was also dropped because of its close proximity to RAF Marham. Modifications were made to the Plan including the addition of four AOS sites. The Revised NMWLP was published, and then sent for review by the Minister of State, represented by the Planning Inspectorate. The document received a "sound" and "legally compliant" certification. At this Stage, little public attention had been drawn to a major regulatory development process, then 6-7 years in development.

NMWLP Public Representation Practices in Mineral Planning:
It is important to consider the public representative practices involved in the NMWLP silica sand proposals. The principal representation was afforded by "Consultees" that did not involve the public. Remarkably, this involved 451 separate institutional bodies and individuals, comprising 8 Norfolk local planning authorities; 9 local planning authorities joining Norfolk; 29 relevant English minerals and waste planning authorities; 100 Norfolk parish/town councils; 32 parish/town councils adjoining Norfolk, 9 specific consultation bodies in Cambridgeshire, and 1 in Lincolnshire; 36 other specific consultation bodies (including many of the statutory consultees); 58 general consultation bodies, including the Ramblers Association and Sustrans); 30 mineral operators; 55 land agents and consultants; and 84 county councillors. Only these "consultees" received direct communications from N.C.C. and were then afforded the opportunity to engage at length on matters of concern, including the submission of systematically-organised evidence with the "right'' of a detailed published reply. I suspect no one would design so complex a process this way if there was a choice

The only members of the public across the County that were 'consulted' directly (via a notification letter) were 642 residents living within 250m of a proposed or putative mineral extraction site/area; the adjacent communities were ignored. The 250m distance apparently reflected the distance at which noise and dust nuisance were usually considered ameliorated – it had nothing to do with recreational use.

This structure was consistent with the administration proposed in the NPPF with the exception that the public were relegated to a far less functional and markedly delayed inquiry, that was treated with very different criteria including the obfuscation of evidence and including selective suppression of data. This will no doubt be denied, but the evidence is incontrovertible.

When is a "Consultation" a Consultation?
The public were confined to two belated "consultation" (really commentary) periods of 6-weeks when they were indirectly asked for comments. The notification of the public was very poor, if compliant with the Norfolk Statement of Community Involvement, 2012, (SCI), as modified. In the initial consultation, a substantial proportion of AOS E respondents complained that they had only heard of this proposal shortly before the deadline and had to hurry to put something together. N .C.C. then extended the dead line. but strangely only for residents of two of the four involved villages. The call for letters is not a consultation in any meaning of the word. The Oxford Dictionary defines a consultation as "the act of discussing something with someone or with a group of people before making a decision about it". For a consultation to occur, there has to be the opportunity to contribute systematically, organised data and include the opportunity for debate. At least the Initial "Consultation" public responses were published together with MHA responses. This was the first inkling that questions were often just disregarded or gamed with a less than frank answer. Publication of the Preferred Options Consultations were delayed for three years until close to the end of the process and specific MHA responses are absent.

In the Initial Options sequence, there were several responses that mentioned the great variety of users of Shouldham Warren. I will just quote one, as they all received the same standard and disingenuous reply. The letter had stated, “The threat to recreational activities: not only is the Warren used by many villagers on a daily basis, people come from all over to walk, bird watch, horse ride and cycle. There are also many clubs/organisations that use it to enhance their lives. Would this be hindered in any way?"

This was answered by, "The area of search includes Shouldham Warren. It is noted that public access is permitted in Shouldham Warren and it is used by many local residents for recreation. There is legislation (s.261 of the Town and Country Planning Act 1990) to allow the temporary diversion or stopping up of a Public Right of way for mineral extraction. Any future planning application for mineral extraction would need to address the location of existing footpaths and public access. There have been multiple examples of mineral extraction sites in Norfolk, where similar issues regarding PROWs have been successfully addressed." This answer disregards responsibilities for early involvement of the public in such matters according to the Rights of Way Circular (1/09) s 7.4 to 7.7. The reply avoids consideration of the multiplicity of recreational uses of the 372-hectare open-access Shouldham Warren site. It solely relates to the current registered PROW on Shouldham Warren. The County has a duty to keep the definitive map in continuous review, and therefore never more so than when major Local Plans are under consideration (see below). This provided the first evidence of the MHA reluctance to consider the nature of rural public recreational areas

Publicity for Public Involvement
It was very clear that the public announcement of the Local Plan was markedly unfit for purpose, but the deficient protocol remains unaltered. This was the subject on many public comments. This de facto suppression of public responses has to be interpreted as deliberate; the only satisfactory mechanism short of contacting all voters/rate payers is to institute an obligatory requirement for N.C.C.-led village meetings (perhaps for villages <3km from putative sites) to facilitate public familiarity with the local and regional effects of major planning decisions. This is recommended in the Norfolk DCI, and requested in several public comments, but has always been disregarded by N.C.C. The public's right to know appears to have been gamed. Where regional interests are involved, much wider dissemination of some kind is required.

The second Preferred Options consultation was particularly notable for the local and regional attention self-generated regarding the adjacent sites. SIL 02 and AOS E, principally organized by CATTS, the Campaign for Two Silica Sand Sites, based in Shouldham. A colossal 3,222 public responses were submitted for AOS E and 1,255 for SIL 02, a total of 4,477 public responses over the two closely-related sites. It took 3 years for N.C.C.to post these comments on their silica sand website (where they are organized in random folders with no practical way to search them, and (unlike the submissions from the formal consultees) no NMW officer comments were ever attached. By this time, we are at 5 minutes to midnight in a 12-year process. Amongst the most interesting letters submitted were those from CATSS. Liz Brewer, and Svetlana Ignatieva. It is said in the NMWLP, 2022, that the public responses have been considered, but no evidence has been submitted that shows this has occurred. Let us see how the collected responses from all sources have been handled?

Differential Management of "Consultations"
All "consultations" were assembled in a 291-page document. NMWLP Statement of Consultation, May 2022 which was filed in the LP submission file, without direction elsewhere among the cumulative project files as to its existence or venue. The entire Plan files have not been assembled with public access in mind. It therefore required a specific intention to read the lot to gain any sense of the structure of 12 years of activity.

Altogether, the comments are collected into 451 official "consultations." Comments were abstracted and often "combined" with a number of consultees married together, with a brief summation of substantive issues, presented in a format in which it was very difficult to evaluate the quality of the process. The individual lists were invariably headed by official 'consultees’ with public contributions apparently reduced to a subsidiary role. This structure may have been helpful in organising the extensive file, but it had the effect of the egregious under-representation of the public contributions. I can only realistically contribute my own experience which will be discussed below, and it will show that some uncomfortable facts were entirely disregarded by the MHA and others were met with misleading statements.

Detailed issues could not be represented by the abbreviated (effective) bullet points selected. There is a strong case to be made for the full NMW Officer response to each representation to be reproduced in consort with the respective full submission in an entirely separate file, as was undertaken for the Initial Options consultation. This was required of the process, but was avoided in the Preferred Options sequence, for unexplained reasons. The May 2022 Statement of Consultation document is a useful summary, but as process integrity has to be seen to be done, the sole presentation of the institutional response to the Preferred Options in this tabulated format inhibits any assessment of this data, which must therefore remain suspect. The County Council is knowledgeable about the nature of data and must face full responsibility for this serious epistemological misconduct. These MHA actions are neither sound nor legally compliant.

The Statement of Communication document, May 2022, reported 829 action items. The majority reported multiple factors of advice or dispute as summary statements. How these brief statements had been assembled by the NMW Officers represents appreciable unknown variables. Choices have been made for purposes of brevity. I am aware of important but "inconvenient" facts that have quite deliberately been omitted. It is impossible to know how great a problem this has been given the opaqueness of the adopted reporting procedures. However, it was obvious that "consultees" generally were given greater due diligence than virtually any of the 4,500 public "respondees" for AOS E and SIL 02. The major consultees usually were afforded their own representation, and commonly involved points of clarity regarding their area of expertise. But, there were many multiple summaries, largely involving "second-line consultees" and it was the practice for the numbers representing public comments to he added on at the end. Without there being comprehensive. institutional comments on the content of each submission (in a separate File as had been used with the Initial Consultation), there is no opportunity afforded to assess the integrity and validity of this reporting process.

Of the 829 action items identified by the MHA and presented in a summary and aggregated format, 671 were placed in a "No Action Required” basket. This very high number reflected a large variety of subjects, but which were nullified by the MHA decision to abandon all the silica sand extraction site candidates, and the normal cull elsewhere of potential non-safeguarded mineral sites. There is an important procedural matter here in that a considerable amount of work from external collaborative institutions and individuals has been largely wasted, through no fault of their own, by the N.C.C. failure to select silica sand extraction sites and the consequent policy change proposal to remove minerals applications away from the current NPPF-informed structure and the abandonment of the current silica sand extraction site selection process. In view of this irregularity. it is suggested that all consultations be retained for a 25-year period. and not destroyed in the relative short term as permitted under the NMWLP 2022.

The action items that went into the "Action Required” basket numbered 158. If we analyse this group, we find that only 3 of the total public comments selected from all minerals (but not waste) programs (including the 4,477 submitted for the Preferred Options silica sand cycle) were represented by an action item of their own. They comprised a submission on a Poors Charity landholding, an incinerator, and a sustainability comment based on EU Human Rights Law. Every other public submission was relegated to a subordinated role in which it was entirely impossible to determine how they had been individually represented, if at all. .Justice has to be seen to be done, but a quite different process has accommodated public representation in the Norfolk Minerals and Waste Local Plan 2021-2038 than was used for all other interested parties, which was unfit for purpose.

To provide some insight into the process, the top 15 primary authors of "Action Required' items (with total) were: Historic England (23); the Broads Authority (22); Environmental Agency (21); Anglia Water Service (11); Norfolk Wildlife Trust (8); Natural England (7); NCC Historic Environment Service (7); South Norfolk and Broadland DCs (6); Essex County Council (6); Norfolk Highway Authority (5); Minerals Product Association (5); Breedon Group (ex-Cemex) (5); Heaton Planning Ltd/Brett Group (5); Gas Energy/UK Onshore Oil and Gas (4); and West Winch PC (2). The extensive submissions of CATTS, the Campaign Against Two Silica Sand Sites, as the principle public representative body, were abstracted into about a dozen action Items, but all found there way into the "No Action Required” category, largely because the AOS E and SIL 02 were cancelled, nullifying the contribution. Despite the recognition as the principal public representative body, N.C.C. never met with them, in conflict with the Norfolk Statement of Community Involvement.

Avoidance and/or Downplaying of the Legitimate Consideration of Public Issues
It has been possible to demonstrate that N.C.C. avoided mentioning the intensive recreational public land-use of Shouldham Warren in all 179 Plan documents in the silica sand Plan library between 2010 and 2022, that N.C.C. declined to engage in discussion on this issue, suppressed formal representation of this complaint in the Preferred Options cycle, and then designed an opaque process allegedly designed to consider and respond to several thousand public declarations, principally on the public utility of Shouldham Warren, but in which there has been no objective evidence of any valid response from the MHA. On the question of the long-term public land-use interests in Shouldham Warren, it is more likely than not that the MHA has sought, for some reason of their own, to deliberately ignore the issue over a prolonged period, and involving multiple acts of commission. I submit that the evidence strongly supports the conclusion that these activities of the MHA are neither sound, nor legally compliant.

Extracts of Norfolk Minerals and Waste Local Plan [Silica Sand Single Issue Review - Pre-Submission Representations Feedback Report August 2016 page 6]
Below the middle of the page is the statement. "There is no requirement for another Mineral Planning Authority to plan to help meet Norfolk's demand for silica sand as the feedstock for the processing plant at Leziate." There is no reference to support this statement. Indeed. another County MCA consultee wrote a recorded consultation letter in which she had apparently offered (or requested information of) collaboration, but had heard nothing, to receive a curt reply that this would be unnecessary. An important consideration to the public is whether this is a fixed obligation irrespective of the contemporary realities of a difficult local supply chain?