DEVELOPMENT CONTROL AND REGULATION COMMITTEE 8 May 2012

A Report by the Assistant Director – Planning and Sustainability __________________________________________________________________________ Application No: 4/10/9001 District: Copeland Applicant: Endecom UK Ltd Parish: Arlecdon and Frizington Received: 13 January 2010 __________________________________________________________________________ PROPOSAL Development of a waste management facility for the disposal of low and

very low level radioactive waste including site restoration and ancillary development;

Former Keekle Head Opencast Coal Site, Pica, Whitehaven __________________________________________________________________________

CONTENTS

1.0 RECOMMENDATION

2.0 BACKGROUND AND CONTEXT

3.0 THE PROPOSAL

Waste Inputs (Para 3.1)

Phasing of the Development

Phase 1 – ‘Enabling Restoration’ (Para 3.7)

Phase 2 – Construction (Para 3.8)

The Waste Disposal Area (Para 3.9)

The Waste Reception Facility (Para 3.12)

Ancillary Development (Para 3.15)

Phase 3 – Operation (Para 3.18)

Phase 4 – Post-operation (Para 3.27)

Traffic Movements (Para 3.29)

Operating Hours and Site Security (Para 3.32)

Employment Generation (Para 3.33)

Further Information (Para 3.34)

4.0 CONSULTATIONS AND REPRESENTATIONS

5.0 PLANNING ASSESSMENT

The Policy Context (Para 5.1)

The Planning Issues (Para 5.20)

(i) The Local, Regional and National Need for the facility (Para 5.22)

(ii) Alternative Sites (Para 5.52)

(iii) The potential Socio-economic Impacts (Para 5.65)

Economic Impacts (Para 5.68)

Community Benefits (Para 5.79)

(iv) The Impacts of Traffic and Transportation (Para 5.83)

(v) The Health and Safety of the Local Community: actual harm and perceived harm (Para 5.97)

(vi) Impacts on Residential Amenity (Para 5.108)

Noise and Vibration (Para 5.110)

Air Quality (Para 5.116)

(vii) The Environmental Impacts (Para 5.120)

(a) Water Environment and Ecology (Para 5.123)

Potential Adverse Impacts on the Integrity of the River Ehen SAC and related planning issues (Para 5.125)

Impacts from changes in water flows (Para 5.127)

Suspended solids - Control via conditions and other restrictions (Para 5.129)

Risk of adverse impacts from contaminated land (Para 5.133)

Realignment of the River Keekle (Para 5.135)

Pollution from radioactive substances via groundwater and the Environmental Permit (Para 5.139)

Surface water management scheme and flood risk (Para 5.143)

Local Water Supplies (Para 5.145)

(b) Other Ecological Issues

Hen Harrier (Para 5.146)

Other Protected Species (Para 5.166)

Otters (Para 5.166)

Bats (Para 5.169)

Common lizard and quail (Para 5.170)

Priority Species and Habitats (Para 5.173)

Non-statutory Designated Sites (Para 5.183)

Proposed Restoration Scheme (Para 5.184)

Conclusion – The Water Environment and Ecology and Other Ecological Issues (Para 5.189)

(c) Landscape and Visual Impacts

Landscape Character (Para 5.193)

Visual Impact (Para 5.211)

Residential Receptors (Para 5.214)

Pica and Pica Car Park: 175m AOD (Para 5.227)

High Park Open Access Land: 247m AOD (Para 5.228)

Rights of Way (Para 5.234)

Roads: C4006 Pica to Dean Cross and C4012 to Gilgarran (Para 5.239)

Dean Moor Stone Circle Scheduled Ancient Monument: 200m AOD (Para 5.243)

Grassmoor Summit, Lake District National Park: 852m AOD (Para 5.244)

Conclusion – Landscape Character and Visual Impact (Para

5.246)

(viii) Perceived Benefits of the Proposal (Para 5.247)

CONCLUSION (Para 5.256)

APPENDICES

Appendix 1 - Reasons for Refusal of Planning Permission Appendix 2 - Tables and Figure 1 to accompany Section 5 (i) The Local,

Regional and National Need for the Facility Appendix 3 - Summary of Policy Background to Refusal of Planning Permission Appendix 4 - Full Text of Policies Referred to in Appendix 3

1.0 RECOMMENDATION

1.1 It is recommended that planning permission be REFUSED for the reasons set out in

Appendix 1.

2.0 BACKGROUND AND CONTEXT 2.1 This application, accompanied by an Environmental Statement (ES), is for the creation

of a 1 million cubic metre facility for the disposal of low level and very low level radioactive waste over an operational life of around 50 years.

2.2 The application was originally received in January 2010 and a joint committee site visit, with officers and members from the County Council, Allerdale and Copeland Borough Councils and parish council representatives, took place in June 2010. Following a formal request by the County Council in June 2010, further information was submitted by the applicant in April 2011. The information submitted was the subject of a further round of publicity and consultation with statutory and non-statutory consultees and County Council members visited the site again in July last year.

2.3 The application site extends over an area of approximately 70 hectares and is located about 1km to the east of the village of Pica, the closest village, approximately 3km to the south east of Distington and about 5.5km to the north-east of Whitehaven. The C4006 Pica to Ullock road forms the northern boundary of the site and part of the High Park escarpment forms its southern boundary. Access to the site is from the north from the Pica to Ullock road. The properties in the immediate vicinity of the site include Wilson Park Farm (on the immediate north west boundary), Keekle Head Farm (on the immediate eastern boundary), Midtown Farm (60m to the south west of the site boundary) and above this Tutehill Farm (600m to the south west of the site boundary) and the residences at the former Greyhound Public House (Laneside House and Fellview Cottage, 230m to the north east of the boundary) and Studfold (180m to the north east of the boundary), and Oatlands Farm (650m due west of the site boundary). The site falls within the administrative area of Copeland Borough Council and the district of Allerdale forms its eastern boundary.

2.4 The area is largely made up of large pasture fields divided by established hedgerows and farmsteads. The topography is rolling in nature in the north rising to High Park to the south with a summit of 247m AOD.

2.5 The site is a former opencast coal site. It consists of two large, deep excavations that have filled with water since coal extraction ceased to form an eastern and a western lagoon; substantial overburden mounds; a range of smaller mounds containing soil materials in temporary storage, and the remains of the general site infrastructure consisting of expanses of hardstandings at the site entrance, temporary buildings, former coal stocking areas, and water treatment areas. The course of the River Keekle originally ran across the north western part of the site. This was diverted further north of this alignment to facilitate coal extraction, and had to be diverted again after the channel collapsed into the coal workings. The river currently remains within this diverted alignment. A public footpath (FP 404018 and 401014), which originally bisected the north western part of the site, was temporarily stopped up for the duration of the coal extraction. Its current status is that it is obstructed.

2.6 Planning permission was granted in 1998 for opencast extraction of coal. The site was worked until 2002 when coaling was abandoned for commercial reasons. The planning permission expired in 2005. Only a small part of the site was restored in accordance with the planning permission and, as a result, an Enforcement Notice was served in August 2008 with the aim of securing restoration of the rest of site. The site is in dual ownership: Mr and Mrs Brown of Wilson Park Farm, who own the land to the north of the original line of the River Keekle, and North West Land Regeneration Ltd, who own the land to the south of the river.

2.7 The Enforcement Notice requires the voids to be dewatered by February 2010; backfilling operations to be completed by mid August 2011; the realignment of the River Keekle and the surface restoration of the site (to recreation grasslands, woodland, heathland and scrub) by August 2012, and the reinstatement of the footpaths by mid February 2013. North West Land Regeneration has installed a pump in the western void in an attempt to comply with the Enforcement Notice. Water is being pumped to the water treatment lagoons and discharged into the River Keekle under the terms of the consent issued by the Environment Agency. Dewatering has not taken place in accordance with the timescales set out in the Enforcement Notice. The landowners are technically in breach of the Notice. The County Council is, however, not pursuing the enforcement of the Notice whilst this planning application remains to be determined.

2.8 The Lake District National Park boundary lies approximately 4.3km to the east and a Landscape of County Importance designation abuts the site to the south. A large area of open access land, incorporating High Park ridge extends immediately south and east of the site.

2.9 The River Ehen (Ennerdale Water to Keekle Confluence) SSSI and Special Area of Conservation (SAC), with its populations of Freshwater Pearl Mussel and Atlantic Salmon noted as its interest features, is located 5.9km to the south east of the site upstream of the confluence with the River Keekle, and the River Derwent and Bassenthwaite Lake SCA/River Derwent and Tributaries SSSI lies 2-3km to the east of the site. Hight Leys SSSI and Yeathouse Quarry SSSI lie 4.2 and 4.7 km to the south east and south of the site, respectively. There are six County Wildlife Sites (CWS) within 1km of the site. One of these, Sandbeds Meadows, extends into the former opencast workings and includes part of the western lagoon and some of the smaller water treatment lagoons. Of the other CWSs, two are is closest proximity to the site: High Park which abuts the site to the south and Studfold Willow Patch on the north eastern boundary. The site and surrounding area are also used by an internationally important population of wintering hen harrier, a species afforded the highest nature conservation status and level of protection by being listed as a Schedule I species under the Wildlife and Countryside Act 1981 and Annex I of the EU Birds Directive.

2.10 The geology of the site consists of coal measure strata within Whitehaven Sandstone. The strata are defined as Secondary Aquifers by the Environment Agency. All of the surface drainage is into the River Keekle.

3.0 THE PROPOSAL

Waste Inputs

3.1 This application is for the creation of a waste management centre for the disposal of low and very low level radioactive construction and demolition wastes arising primarily from the decommissioning of nuclear power plant buildings and infrastructure from Sellafield, but also from other sites. The site would not be used to dispose of intermediate or high level radioactive waste. Waste would be accepted onto the site at a rate of 20,000 tonnes per year (excluding packing materials) for a 50 year period. It is proposed that non-radiological wastes would also be deposited at the site. These would include packing materials (sand or quarry fines) used to fill the voids between the containers in the cells (paragraph 3.22 refers). The applicant has confirmed that there is no intention to accept general non-radiological waste.

3.2 Solid radioactive waste is divided into three broad categories – High, Intermediate and Low levels – according to the radioactivity it contains and the heat it generates. High Level Waste (HLW) has such a high content of radioactivity that it is heat generating, whilst Intermediate Level Waste (ILW) exceeds the upper boundaries for Low Level Waste (LLW) but does not produce heat. It is proposed that this site would be used for the disposal of LLW only.

3.3 LLW is waste that contains relatively low levels of radioactivity. Most LLW arises from the operation of nuclear power stations, nuclear fuel reprocessing facilities and from the decommissioning and clean up of nuclear sites. It is characterised as radioactive waste having a radioactive content not exceeding 4,000 Becquerels per gram (Bq/g) of alpha or 12,000 Bq/g of beta or gamma activity. There are two sub-categories of LLW that have been identified. These are:

Low Activity Low Level Wastes (LALLW) which have total activity levels below 200 Bq/g, and

High Volume Very Low Level Wastes (HVVLLW) which have total activity levels from 0.4 Bq/g but not exceeding 4 Bq/g.

3.4 For waste with a radioactive content below 0.4 Bq/g, no specific regulatory control is required and this is referred to as ‘exempt radioactive waste’ because it would be exempt from the need for an Environment Agency permit under the Environmental Permitting Regulations 2010. A further category ‘out of scope’ waste has also been introduced. Such waste is considered ‘not radioactive’ for the purposes of the legislation and so is excluded from any regulatory requirement under the radioactive parts of the Regulations.

3.5 The applicant states that the waste that would be deposited at this site would contain an activity range from of between 0.4 and 500 Bq/g, with an average activity not higher than 100 Bq/g. They have indicated that much of the waste would contain an average of 4 to 7 Bq/g (i.e. that most of the loads accepted would be VLLW or LLW falling just above the VLLW upper limit). As it would not be practicable to place conditions as to the percentage split between LLW and VLLW, the application should be treated as an application for the disposal of LLW.

Phasing of the Development

3.6 It is proposed that there would be four phases to the development of this site: restoration, construction, operational and post-closure.

Phase 1 – ‘Enabling Restoration’

3.7 Firstly, restoration of the site would take place in order to return the site to a condition from which it could be developed. The applicant refers to this stage as ‘enabling restoration’ and anticipates that, should planning permission be granted, such works would take about three years. These works would comprise the following:

de-watering the lagoons and re-engineering and backfilling the voids with overburden;

re-engineering of deposited clays and overburden to form the restoration landforms, including the formation of the plateau and clay repositories for the subsequent construction and engineering of the cells to form the waste disposal area;

re-alignment of the River Keekle to as close to its original course as possible (ie. its route prior to coal extraction) and restoration of the valley floodplain to include extensive areas of wet grassland and pockets of willow and alder scrub;

restoration of the land to the north of the River Keekle to agricultural pasture to provide continuity of landuse along the public highway and to form a buffer to the public highway;

restoration of the eastern part of the site to recreate historic small scale field patterns within which a mix of native hedgerows, wet grasslands, wetland scrapes, willow and alder and ponds would be established;

restoration of the elevated southern area to conservation grassland and gorse scrub, and

re-alignment of the public footpath to the north western boundary of the site to include the provision of a new footbridge across the River Keekle.

Phase 2 - Construction

3.8 The construction phase, would overlap with the first phase and take about two years to complete. This phase would comprise works over and above the ‘enabling restoration’ phase to create the following main elements of the development:

The Waste Disposal Area

3.9 The waste disposal area would occupy a sloping rectangular plateau of 15 hectares on the main north-west facing slope within the site, with consistent gradients running down to the north and east. It would consist of 9 linear containment cells. Each containment cell would be constructed in a series of engineered layers (including a groundwater rebound management system at the base, followed by engineered fill and then clay liners; a flexible membrane liner; a protective geotextile layer, a leachate drainage layer; the waste packages themselves packed around with sand/quarry fines; a gas drainage system; a further packing/regulating layer, a flexible membrane capping; a drainage layer; a compacted clay capping; and subsurface drainage materials and restoration soils) designed to provide a robust structure with a proposed life of 300 years. The applicant states that the design of this purpose-built facility is derived from ‘best practice’ developed in France and Spain.

3.10 The construction phase would put in place all the engineered layers up to and including the clay liner, for the cells within the first half of the disposal area. The cells would then be temporarily filled with soils and grassed over with conservation grassland until required for the disposal of the waste during the operational phase. The remaining half of the disposal area would be left as at the end of the ‘enabling restoration’ phase with the clay in situ to be reworked and the drainage, engineering and lining layers to be created closer to the time of use. This part of the site would also be soiled and seeded and together with the first half of the site, would form 15 hectares of conservation grassland habitat. Because of the extended timescale for this development, it is proposed that areas at the southern edge of the plateau would remain as undisturbed habitat before being required for cell construction in the latter years of the development’s life.

3.11 Screening bunds, planted with scrub and woodland vegetation, are proposed along the north and west faces of the plateau. Woodland/scrub planting is also proposed, for the north-east corner of the disposal plateau area and on the far eastern boundary of the site to screen Keekle Head Farm. Two further soil storage bunds, vegetated with a conservation grassland mix, are proposed along the south and east boundaries. These would be less permanent, expanding and contracting as soil materials are moved to and from the active disposal areas.

The Waste Reception Facility

3.12 A waste reception building is proposed to be constructed to the north of the re-aligned River Keekle and immediately south east of Wilson Park Farm. There would be two parts to this building. The main part would house the waste reception area for the checking of incoming waste prior to their transfer to the containment cells; monitoring equipment and administration, site administration and welfare facilities. It would take the form of a single storey curved mono-pitch structure, with a steel frame and Longspan composite wall cladding panels. A much smaller scaled annex would house a visitor reception and conference/exhibition facilities. Overall, the building would be 84m long by 49m wide, comprising 66m by 49m for the main building, 12m by 17m for the annex and 6m by 14m for a structure that would link the two main parts. The main building would have an asymmetrical side elevation, with a height of 10m to the eaves on the front elevation, 5m to the eaves at the rear, and the highest point of the roof being 11.6m from ground level.

3.13 It is proposed that the roof would be coloured Moorland Green and the wall claddings would be Goosewing Grey. Two large 4.5m by 5.5m service doors on the front elevation would be coloured yellow.

3.14 A 6m high screening bund planted with a woodland and scrub mix would be constructed along the north and west elevations of the building. Further planting would take place along the eastern boundary opposite the building and along the public highway at the site entrance.

Ancillary Development

3.15 A new internal site access road would be constructed from the existing access to the site, from the C4006 Pica to Ullock road, to the waste reception building. A staff and visitor car park would be constructed at the waste reception building. The access road from the reception building would be extended to create a route to the disposal area, and would cross the reinstated River Keekle by means of a large diameter pipe crossing. All site roads would be surfaced with tar macadam and unlit. A 2 metre high Paladin style fence would be erected around the operational area.

3.16 A wheel washing facility would be placed on site during the restoration and construction phases. Once the site became operational, it is proposed that such a facility would not be necessary as vehicles would be running on a clean engineered road surface.

3.17 Separate surface water drainage systems would be created to serve the waste disposal area to the south of the newly re-aligned River Keekle and the waste reception area to the north of the river. This would include upgrading the existing water treatment lagoons for the disposal area and the creation of an attenuation pond also to serve this area, and the construction of new water treatment and attenuation ponds to serve the waste reception area.

Phase 3 - Operation

3.18 The third phase, involving the day to day operation of the waste management facility, would commence immediately following construction, and would span 50 years. It would involve the delivery and checking of waste, the progressive placement of waste within the containment cells and the ongoing monitoring and management of the site.

3.19 The waste would arrive on to the site in either drums or sealed bulk bags. These would be taken to the waste reception building, where they would be checked and recorded in the site inventory. The waste packages would be unloaded into a reception bay, documentation checked and prepared for transportation to the containment cells. A percentage of wastes would be diverted to a verification suite where they would be either non-intrusively measured for radiological content or intrusively sampled for more extensive quality control tests. Waste that has met the appropriate tests would be transported to the containment area using one of two enclosed dedicated slave vehicles.

3.20 The cells would need to be prepared prior to the waste being placed within them. This would involve the removal of the grassland vegetation covering the cell and excavation to remove the fill soils (placed during construction). The flexible membrane liner, the protective geotextile layer and leachate drainage layer would then be installed as well as rails either side of the cell for a weatherproof canopy to slide along.

3.21 During the placement of the waste, the operational cell would be covered with a large demountable weatherproof canopy. This would be a steel framed structure completely enclosed and covered with a plasticized tarpaulin type sheet. The structure would be a segmental arched form, measuring approximately 50m wide and 175m long with a height of 15m to the top of the arch. The seven 25m segments of the structure would all be mounted on a ground fixed rail system that would allow it to be moved in sections along the length of each containment cell as it is filled.

3.22 The drums or bags containing the waste would be stacked in layers within the cell using a telehandler. Any voids between the containers would be packed with sand or quarry fines. It is anticipated that approximately 10-20% (110,000-220,000 cubic metres) of the total void (1.1 million cubic metres) would be filled with packing material. This material would be imported from a source outside the site at an average rate of one delivery per day (although dependent upon input rates of radiological wastes), and would be delivered directly to the holding area within the weatherproof enclosure to ensure that it would be dry for use in the cell. The holding area would be isolated from the area of ongoing waste placement so that there would be no cross contamination of delivery vehicles.

3.23 Once the containment cell is full, the remaining layers (paragraph 3.10 refers) would be placed directly on top of the waste packages to ensure that the cell is capped. The soils and vegetation removed from the next cell along would, where possible, be directly placed on the capped cell to complete its restoration once again to grassland. Any shortfall/excess of soils would come from/go to the on-site soil storage bunds (paragraph 3.12 refers). With the exception of the area of active disposal, the whole of the waste disposal area would comprise grassland habitat throughout the life of the project.

3.24 Disposal operations would proceed from the lower north west corner and up the slope cell by cell towards the south east. The weatherproof enclosure would progressively be moved across the site and then up the slope to the next linear cell. Upon construction of a new cell, the rail system would again be established adjacent to it and the weatherproof enclosure would be transferred by crane, section by section, to the new track and then re-established. All operations connected to the filling and capping of the containment cells would take place inside the weatherproof enclosure. The soils and vegetation placement of the capped cells would not take place under cover of the canopy.

3.25 The applicant proposes to put in place a long term programme of monitoring, maintenance and management, given the nature of the deposited material. This would involve the monitoring of water quality from under drainage, leachate and surrounding surface and ground waters. The presence of landfill gas, although anticipated by the applicant to be limited, would also be routinely monitored and the nature and function of the gas collection and treatment facility would be agreed with the Environment Agency. The applicant anticipates that monitoring could be required for 100 years or more, depending upon decay periods and radioactivity levels.

3.26 The areas of the restored landscape within the site would be subject to a long-term programme of management that would begin after the initial restoration works and continue throughout and beyond the operational phase of the facility. A management plan would set specific management objectives, with progress against these objectives monitored on a regular basis and reviewed as required.

Phase 4 – Post-operation

3.27 After the completion of the 50 year operational phase (circa 2065), the development would enter its fourth phase – the post-operational phase. The first stage of this phase would be to complete the capping and restoration of the waste disposal area. The applicant has indicated (by email) that following this the waste reception building and associated hard standings would be removed and the area subsequently landscaped to fit with the rest of the restored site. This is not, however, clearly reflected in the Environmental Statement or the submitted plans. The only proposals

that can be assessed with any certainty, therefore, are those submitted as part of the application, including the Environmental Assessment and submitted plans.

3.28 Fencing and monitoring and water management infrastructure would remain in place for the longer term; until such time as the Environment Agency, through the Environmental Permitting regime (paragraph 5.18 refers), would be content for these last structures to be removed.

Traffic Movements

3.29 In terms of vehicle movements, the applicant proposes that, during the restoration phase and the initial part of the construction phase, a total of 28 heavy goods vehicles (predominately low loaders) would be brought on site to deliver plant and materials. The most intensive period would be in the first 12 weeks, where it is proposed that 15 of the 28 deliveries would be made, resulting in an average of just over one vehicle each week, although it is likely that some weeks would see a greater proportion of the vehicle movements than others. The applicant anticipates the worst case scenario would be where all vehicles would arrive in one week (i.e. an average of 3 per day). All vehicles would arrive at the site once and depart once. Additionally, approximately 20 to 30 cars and light vans associated with staff employed at the site would visit the site each day during the restoration phase; that is an average of 25 arrivals and 25 departures. During the construction phase, it is anticipated that 12 to 15 personnel would be employed and further traffic movements would arise from deliveries of plant and materials to the site as indicated above.

3.30 Once operational, the applicant estimates that there would be an average of 11 deliveries of waste to the site each day. Deliveries would be of varying weight in ISO freight container vehicles. Weight per vehicle would vary, but would equate to approximately 20,000 tonnes per annum, the total amount of waste the site would receive per year. It is anticipated that the site would also receive approximately 175 to 350 deliveries per year of packing material (sand and fines) to be used in the containment cells (an average of one per day). Staff employed at the site would account for approximately 30 vehicle movements each day (15 arrivals, 15 departures). It is estimated that miscellaneous deliveries of materials and visits by maintenance contractors would add a further 4 movements per day.

3.31 The proposed haulage route would involve turning left out of the site onto the C4006 and then immediately right onto the C4012 heading north west past Distington Hall Crematorium, onto the B5306, and then north to its junction with the Distington Bypass (A595 (T)). The applicant states that this means that traffic would not pass through the main settlements in the vicinity of the site, including Pica, Gilgarran, Distington, Common End and Howgate.

Operating Hours and Site Security

3.32 The proposed operating hours of the waste facility would be Monday to Friday 7.30 to 4.30, plus an hour to close up and secure the facility at the end of each day. All lighting would be switched off outside normal working hours. The operational parts of the site would be secured with 2m high Paladin style fencing, and possibly including CCTV. It is proposed that a security guard would be employed at the site.

Employment Generation

3.33 It is anticipated that the development would employ between 15 and 30 people during the restoration/construction period of 3 to 4 years, and approximately 15 full time jobs would be created if the site became operational. These jobs would be supplemented by ongoing contracts with local supplies and maintenance companies.

Further Information

3.34 The information submitted by the applicant (in April 2011) in response to the County Council’s formal request (paragraph 2.2 refers) comprises further consideration of the need for the facility and alternative sites; proposals for community benefits and further mention of financial guarantees that could be offered should planning permission be

granted. It further assesses the landscape and visual impacts of the proposals and provides further hen harrier mitigation measures, including an indication that the applicant would lease or purchase and manage an area of land to provide alternative off-site compensatory roosting habitat for migratory hen harriers.

3.35 The submission also includes a modification to the design of the waste disposal area and an updated outline radiological risk assessment to address the Environment Agency’s concerns. The Agency’s main objection was to the proposal to construct the facility with the base of some of the landfill cells close to or lower than the water table, and the potential risk that could pose to groundwater. The Agency also objected to the fact that active long-term management would be essential to prevent long-term groundwater pollution, which is contrary to their groundwater policy. The proposal has been modified to attempt to address these objections by raising the base of the lower landfill cells to above the anticipated groundwater level. The capacity of the size of the remaining cells would be increased to compensate and the revision would not affect either the proposed final restoration profile or the operational life of the facility.

4.0 CONSULTATIONS AND REPRESENTATIONS

4.1 Copeland Borough Council reported this matter to their Planning Panel on 17 August

2011 and Members recommended that the proposal be refused. The Council considers that the application is contrary to their non-dispersal policy position on radioactive waste and that without details of the volumes of waste involved and a full assessment of the capacity of existing alternative sites which may be suitable for VLLW disposal and the need for future capacity, the Council considers that there is no overriding justification and need for a facility at this site. To approve this proposal without a full spatial assessment and consultation in the absence of necessary data would be inappropriate at this stage.

4.2 The Council does not consider that there is an overriding justification and need for a facility on this site and that the proposed community and other benefits are insufficient to outweigh the effects of this proposal. The application is considered to be contrary to ‘saved’ Policy ST4 of the Cumbria and Lake District Structure Plan 2001-2016, CMWDF Core Strategy Policies DC 1 and DC 2, and Policies DEV 8 and NUC 1 of the adopted Copeland Local Plan 2001-2016.

4.3 Allerdale Borough Council has no objections.

4.4 Arlecdon and Frizington Parish Council has the following comments to make:

The Council is concerned about the additional burden on the road infrastructure caused by the facility, with the increase in the number of HGVs taking waste to the facility and returning to site;

The Council fears that if this facility is implemented, the site, in future years, may be expanded to take waste from out of the area, which would put further strain on the inadequate infrastructure;

The Council is concerned that the technology that this facility would utilise was developed by the French more than 40 years ago. The Parish Council refers to two nuclear waste disposal sites in France: one that is complete where they state radioactive contamination is still leaking into the groundwater, and a more recent site which they state has begun to contaminate groundwater.

The Council is concerned that the safety aspects of the technology surrounding the design of the proposed facility has not been tried and tested. No long term studies have been undertaken to give the process of burying radioactive waste underground credibility.

The Council states that the Environmental Statement Addendum document refers to the specific quantities of LLW/VLLW which require diversion from the LLWR, and that there remains a significant capacity void which must be met from an alternative disposal source, but makes no mention as to exactly how much is needed.

4.5 Distington Parish Council considers that the former opencast coal site is unsuitable for any landfill operations and that the site should be restored in accordance with the original permission for coal extraction. They assert that this opinion is supported by the decision by Cumbria County Council not to include this site as a Preferred Site in the submitted Site Allocations Policies Document part of the Minerals and Waste Development Framework.

4.6 Dean Parish Council is opposed to the granting of approval for this development for the following reasons:

At a strategic level, the Council has always affirmed the principle that radioactive waste should be disposed of as close to its source of origin as possible, in this case, at or very close to Sellafield. It has held this view because it reduces the dangers that might arise from the movement of radioactive material on public roads in the County;

The Parish Council is opposed to any proliferation of nuclear waste disposal, and believes that this should be retained as close as possible to its source, and preferably within the nuclear licensed site itself. The Parish Council believes that such a proliferation and its perceived possible dangers (whether real or imagined), will be detrimental to southern Allerdale’s ability to attract new industry and to the continuation and growth of tourism in the west of the County: and

The Parish Council believes that the status of the site is relevant to the application in that, because the County Council has failed to secure restoration of the former opencast coal site, it is not in a position to reach a balanced decision on this proposal. By granting approval, the County Council would release itself from the embarrassing and possibly expensive consequences of its earlier failure to monitor and control the planning conditions laid down in the opencast coal permission. If the County Council is unable to monitor a 7 year permission, how can people have confidence that it will be effective for a 50 year approval?

4.7 Moresby Parish Council objects on two grounds:

The application does not comply with local planning policy on the disposal of radioactive waste, and

A material planning consideration is the impact on the character of the area. It is considered that a radioactive waste disposal site a number of miles from the source of the waste would detrimentally impact on the character of the area.

4.8 No comments have been received from Winscales Parish Council or Weddicar Parish Council.

4.9 The Highways Agency does not wish to raise any concerns in relation to trunk road impact from this proposal.

4.10 The Highway Authority is concerned at the potential increased maintenance costs to the haul route between the site and the A595 Trunk Road, given the proposed 50 year duration of the facility. For this reason the Authority requests that the developer enters into a Section 106 (or other) agreement to secure the following:

A financial contribution of £15,000 towards an extension of the 40mph zone from Leads Bridge to the top of the rise past Distington Hall Crematorium on the C4012, and for these works to include signing and lighting;

An annual contribution towards increased future maintenance costs for the haul road for the life of the waste management centre. Initially, the Authority was minded to seek an annual figure of around £10,000, but would be willing to review this sum and calculate it as a tonnage charge so as to better reflect the operational use of the site.

The provision of new highway warning signs at the site entrance, to be removed at the cessation of restoration works.

4.11 If the Section 106 was agreed, then the Authority would raise no objections to the proposals, subject to conditions to secure the following matters being attached to any permission granted:

Ensuring that during the restoration and construction phases, the public highway would be kept clean and clear of all mud and debris, and

Ensuring that the site access gates would be sited at least 10m back from the nearest carriageway edge of the adjacent public highway, and would open inwards only, away from the highway.

4.12 The Highway Authority would wish to see the applicant’s proposal to provide a financial sum to improve, resurface and upgrade the back lanes of Pica to be in addition to the requirements set out above.

4.13 Rights of Way Officer (Cumbria County Council) considers the proposed footpath diversion and the provision of a new footbridge over the River Keekle to be acceptable. The current status of the footpaths is that they are obstructed. This proposal would therefore resolve the situation.

4.14 Natural England has no objection to the proposal, following the completion of two Habitat Regulations Assessments (HRAs). In line with the requirements of Regulation 61 of the Conservation of Habitats and Species Regulations 2010 and Natural England’s advise, these were commissioned by Cumbria County Council as Competent Authority to assess the potential impacts of the proposals :

firstly, upon the River Ehen SAC and River Ehen (Ennerdale Water to Keekle Confluence) SSSI (Section 5 - Water Quality and links to ecology refers), and

secondly, upon the integrity of the SPA network hen harrier population (Section 5 – Other Ecological Issues – Hen Harrier refers).

4.15 The River Ehen HRA has concluded that there would be no adverse impact on the integrity of the River Ehen SAC as a result of a planning consent for the proposal as currently submitted and Natural England has confirmed their support for this conclusion.

4.16 Natural England has also confirmed its support for the conclusion reached by the Hen Harrier HRA that there would be no likely significant effect on the integrity of the SPA network Hen Harrier population in relation to the impacts of this proposal, and considers that the proposal should be assessed in relation to national and local legislation and policy.

4.17 Natural England considers that the Hen Harrier Impact Assessment submitted by the applicant contains a number of errors that have a material effect on its conclusions. These are as follows:

The conclusion in the assessment that birds displaced from this area would not be compromised, and that this would not impact negatively on population levels, is speculation. This is because Natural England considers the main determinant to population size to be illegal persecution. The High Park roost is considered relatively safe compared to some other complexes, therefore displacement of birds from this area is likely to put them at increased risk of exposure to illegal persecution.

The assessment assumes that a stand-off distance of 300m without additional screening during the operational phase of the development would be adequate. The applicant has misinterpreted the precedent set by Fairfield Wind Farm to justify this buffer zone. This is contrary to the advice provided by Natural England which is that a 300m buffer should be provided when considering foraging areas or roost areas that are screened, and 600m should be provided to buffer roost areas that are not screened. This should be adhered to.

The Figures that accompany the assessment are misleading. One over-represents the area of High Park that is suitable for hen harriers, and the other incorrectly maps the location of the compensatory land associated with Fairfield Wind Farm, suggesting that this land is almost entirely within the 600m disturbance zone, which is not the case.

4.18 Despite these concerns, Natural England accepts the broad findings of the Hen Harrier Impact Assessment with regard to impacts on roosting, and on foraging and commuting hen harriers.

4.19 The proposal to provide off-site compensatory hen harrier habitat is welcomed, but that in order to safeguard hen harriers, the following would be necessary:

that appropriately managed compensatory habitat would need to be put in place before disturbance commences, and remain in place whilst any risk continues;

the compensatory habitat would need to be of an appropriate size and vegetation type and located within the boundaries of the roost complex, but more than 600m from sources of significant disturbance and at least 300m from low level/screened disturbance features such as inhabited buildings and main roads;

no net loss of foraging resource from that already consented (through the Enforcement Notice);

the adoption of measures, such as screening, to minimise disturbance, and limitations on the timings of on-site activity during the most sensitive parts of the day, and

the submission of a detailed works programme to minimise the impact on hen harrier during the ‘enabling restoration’ phase of the development.

4.20 Natural England has commented further that they would ideally like to see the compensatory land secured prior to determination of the application. They can accept that the land has not been identified or secured at this stage as long as there is a commitment to ensuring the land is in a suitable condition before the development commences. This is because Natural England is of the opinion that there is ample land in the West Cumbria Hen Harrier Sensitivity Area, including areas in reasonable proximity to the development, which has the potential to be managed as hen harrier habitat in a manner that would satisfy the ecological requirements of the harriers. Furthermore, Natural England is aware of discussions between developer interests and land owners in some of these areas indicating a willingness of the land owning community to consider the provision of mitigation land as part of their farm business models.

4.21 Natural England has the following additional comments to make:

That further mitigation measures required to avoid harm to amphibians could be secured by planning condition.

The County Council must consider the standing advice issued by Natural England in determining the potential impact of this development upon reptiles, otters and bats.

That should permission be granted, planning conditions requiring the submission of a definitive ‘Soil Resource, Handling and Restoration Manual’, and an ‘Outline Aftercare Strategy’ well in advance of each phase of restoration should be attached to any permission.

The suggestion of a planning condition to require the development of a detailed restoration scheme in collaboration with relevant stakeholders is welcomed.

4.22 The Environment Agency has no objections to the proposals as submitted including further information submitted in April 2011 and March 2012 (paragraph 3.34 and 5.126) and their final views can be summarised as follows:

The original objection to the proposal to deal with the reinstatement of the River Keekle by planning condition has been withdrawn, since the completion of the River Ehen HRA and a suitably worded condition controlling the design of this being agreed by the County Council and Natural England. The Agency does have concerns that the adjusting restored channel for the River Keekle could lead to the significant release of material downstream into the River Ehen, or cause erosion risks on site. They have also identified conflicts between designing a naturally functioning river channel that can make adjustments to its course and gradient, and ensuring that there would be no potential threat to the integrity of the waste disposal area. The Agency has offered minor revisions to the draft condition suggested by the County Council and reiterated that it should also seek to restore brown trout habitat that was lost when the River Keekle was originally diverted.

The original objection to the proposal to place the waste below the predicted groundwater table is withdrawn because of Endecom’s proposal to modify the design and provision of an updated preliminary radiological risk assessment. These modifications indicate that it should be possible to construct the waste repository at such a level that the base of the waste containment system would remain above the water table at all times, which would protect groundwater from pollution. The Agency states, however, that they would not be able to determine conclusively that groundwater would be protected until they had received and processed the Environmental Permit (paragraph 3.25 refers). The

Environmental Safety Case submitted by the applicant as part of the Permitting process would need to demonstrate that all necessary measures had been taken to prevent or limit the input of any pollutants into groundwater.

Any permission would require the attachment of a series of planning conditions. These would need to secure compliance with the mitigation measures proposed in the Flood Risk Assessment to manage any potential flood risk; minimise the risk to groundwater and surface water associated with site contamination; ensure the protection of brown trout; secure the implementation of otter mitigation measures, and impose Japanese Knotweed control measures.

The applicant would need to apply to the Agency for a permit under the Environmental Permitting Regulations for the disposal of VLLW and LLW. The Agency has also indicated that if the development went ahead, there would be a need to obtain from the Agency a Water Transfer Licence, a Water Abstraction Licence and a Discharge Licence.

4.23 The Health Protection Agency (HPA) and NHS Cumbria are concerned about the adequacy of some elements of the Health Impact Assessment submitted in the Environmental Statement. However, they consider that provided the site complies with all of the regulatory requirements, it would be unlikely that negative health impacts would occur as a result of this development.

4.24 The Health and Safety Executive’s (HSE) Office for Nuclear Regulation has no comments to make on this planning application at this time as the proposed activity (disposal of low level waste) is not currently licensable under the provisions of the Nuclear Installations Act 1965 and the Nuclear Installations Regulations 1971. A Nuclear Site Licence is therefore not required.

4.25 Nuclear Decommissioning Authority (NDA) considers that it would be inappropriate for them to comment as they are the authors of and contributors to the national policy framework against which the County Council will make a decision on this application.

4.26 The Coal Authority does not object provided that the following issues are addressed:

The risk that dewatering, and prolonged pumping to manage groundwater levels, poses in that it would be likely to exacerbate groundwater quality problems. The Coal Authority points out that this is known to occur in Coal Measure strata and associated spoil due to dewatering allowing air to enter the material and oxidise pyrite, typically generating iron, manganese and possibly sulphate and acidity as well. The potential effect of worse quality groundwater (acidic, low pH, with high metals and sulphate concentrations) on the proposed water treatment system and on the integrity of the landfill liners must be addressed and mitigated.

The risks specific to the nature of coal and coal mine workings must be identified and mitigated, in the interests of public safety. Drilling or investigating coal seams and abandoned mine workings has serious health and safety implications. Any intrusive activities which intersect, disturb, or enter any coal seams, mine workings or coal mine entries require the prior written permission of the Coal Authority.

4.27 The RSPB is prepared to withdraw its objection to the proposals subject to the following mitigation proposals being included in a Section 106 agreement which must be drafted and agreed prior to any permission being granted:

The creation of between 15 and 30 hectares of off-site compensatory land to

provide optimal hen harrier roosting habitat, and a stipulation that this is in place prior to the commencement of development on site. (The rational for this is because RSPB, like Natural England, disagrees with assumptions made by the applicant – that the 300m disturbance buffer should be used to determine the impact distances on roosting hen harrier during the operational phase; that the High Park roost will not be impacted on during the operational phase prior to 2040, and the incorrect statements regarding Fairfield Windfarm displacement buffers.) Like Natural England, the RPSB would require that the Section 106 includes several stipulations and provisions regarding the timing of provision of the land, its location, habitat objectives, the inclusion of a management plan and the establishment of a management group to maintain and monitor the land and improve the site for target species, and the possible establishment of a mitigation fund should it not be possible to secure the required amount and quality of land, and

The implementation of the on-site mitigation measures (as proposed in the Environmental Statement Addendum document) to minimise the impacts upon hen harriers during the construction and operation phases.

4.28 West Cumbria Group of the Ramblers does not wish to comment on the desirability or otherwise of the proposals, but would like to see the closed public right of way re-opened, on a line as near to the original, as soon as possible. In the event of the planning application failing, the Ramblers would press the County Council to reinstate the public footpath.

4.29 The North West Regional Development Agency (now disbanded) commented in 2010 on the application and referred to their adopted Policy Statement on the Nuclear New Build Programme, which states that ‘Decommissioning is a major new opportunity for the region’s nuclear industry.’ The Agency also referred to the UK Strategy for the Management of Solid Low Level Radioactive Waste which recognises the need to identify additional sites for the disposal of low and very low level radioactive waste in order to preserve the capacity of the low level waste repository at Drigg. The Agency therefore recognised the need for this type of facility and the direct benefits it would bring in terms of employment creation in an area of regeneration need, and would result in the restoration of a derelict former opencast site. From its broader regional economic perspective therefore, the Agency had no fundamental concerns with the proposal.

4.30 4 NW (now disbanded) commented in 2010 on the application and referred to Policy EM12 of the North West of England Plan Regional Spatial Strategy (RSS) 2021 which states that the final residue following the treatment of waste should be disposed of in one of the nearest appropriate installations, and that local authorities should ensure that waste management facilities are sited to avoid unnecessary carriage of waste over long distances. 4NW also noted that the County Council (in the draft Cumbria Minerals and Waste Site Allocations Document) identifies land within Sellafield as first preference for both LLW and VLLW arising there, and land adjacent to Sellafield as the reserve. 4NW considered that the Council would need to be satisfied that the applicants have made a sufficiently strong case that the benefits of the proposed site over the Sellafield options are sufficient to outweigh the increased distance of transport.

4.31 Cumbria Police (Architectural Liaison Officer) has no concerns regarding security on the site.

4.32 Cumbrians Opposed to a Radioactive Environment (CORE) object to the proposals for the following reasons:

No attempt has been made to investigate and secure other potential disposal sites at or adjacent to the Sellafield licensed site;

It would result in unnecessary intrusion into a remote and nuclear-free part of West Cumbria, that will be detrimental to Pica and its surrounding environment and communities, and could trigger a further proliferation (Studsvik and Lillyhall having already set a precedent) of nuclear operations away from existing licensed sites;

The internationally accepted ‘proximity principle’ that nuclear wastes of any level should be managed as close as possible to their point of origin cannot be applied to this application, as the site is located 17 miles from the major waste source identified by the applicant as Sellafield, and much further from other identified potential sources, such as Chapelcross in Dumfries;

It would undermine local authority efforts to diversify the local economy towards non-nuclear enterprises;

It would lead to an unacceptable increase in the transportation of nuclear materials by road on a road system that is below standard in some areas, which would be detrimental to West Cumbria and its infrastructure and undermine national plans to transfer freight movements from road to rail, and

Approval of the proposal would further absolve the nuclear industry from the onus of dealing with its own wastes at or near the site of waste origin, a responsibility that, as with the use of Lillyhall landfill for LLW, is being transferred unfairly to local communities.

4.33 No comments have been received from the Friends of the Lake District, Friends of the Earth, the Lake District National Park Authority, or Greenpeace.

4.34 The response by the general public to this application has been received in two stages. One resulting from publicising the original planning documentation, and more latterly as a result of publicising the further information. The original planning application generated the following response:

The receipt of 390 signatories to a ‘round robin’ letter objecting to the proposal (of these, 16% were from West Cumbria, 22% the rest of Cumbria, 60% the rest of the UK, 1% Overseas, 1% Unknown). This letter was compiled and the response coordinated by Radiation Free Lakeland (RFL). RFL also responded separately. The objections and comments presented in the ‘round robin’ letter and in the separate response are summarised as follows:

A belief that the nuclear industry is becoming dangerously deregulated as the Government (through its 2007 Policy for the Long Term Management of Solid Low Level Radioactive Waste in the UK) now allows LLW to be disposed of to landfill. The County Council should oppose the Keekle Head proposal and lobby the Government to revoke the law that permits this.

A belief that the landfill site at Lillyhall is accepting large volumes of radioactive asbestos from Scotland’s Chapel Cross nuclear plant, and that whilst Cumbria is perceived as being tolerant of the nuclear industry, the tolerance does not extend this far. The County Council should consider a legal challenge to the dumping of this and wastes from elsewhere into

Lakeland landfills and should strongly resist the disposal of all nuclear waste to landfill.

Scotland’s radioactive policy is ‘near site, near surface’, so why should Cumbria passively accept Scotland’s nuclear waste into its landfill sites? Cumbrians are reducing, reusing and recycling to make room for nuclear waste in landfill.

The potential adverse impact upon the River Keekle, which recently features on the BBC’s Countryfile programme as being one of the best Salmon rivers in the Lakes ‘worth £60m to the Cumbrian economy’.

The proposed development would have a negative impact upon the local economy, health and environment, and that these adverse impacts would be nowhere near the vicinity of the waste’s origination.

A belief that the applicant has accepted that if this proposal goes ahead there would be risks to local people as radioactivity would get into the water supply and reach the local population – they would become ‘receptors’.

RFL supports the County Council’s position to oppose radioactive wastes being spread around Cumbria.

The receipt of a further 20 representations objecting to the proposal on the following grounds:

This is a clear health risk to the people of Cumbria. The development would threaten the health and well-being of local residents.

A risk assessment for the proposal has not yet been carried out.

The potential for nearby land users’ (residential and commercial) water supplies to become contaminated with radioactive waste.

The potential for the radioactive waste to leach out from the landfill into watercourses and adjacent land, adversely affecting local wildlife interests and the environment.

The potential negative impacts upon the Salmon interests of the River Keekle.

The development would threaten the tourism industry, deter visitors to the area and would be detrimental to the image of the Lake District and surrounding area.

The development would have an adverse impact upon other aspects of the local economy, such as agriculture.

There is a concern that radioactive waste could be released in transit from road accidents in transporting the material from source to the site.

Radioactive waste should be disposed of where it arises. This is therefore not the most appropriate site.

The nuclear industry is unable to accurately predict the potential impacts and risks associated with depositing radioactive waste to landfill, particularly in the long term.

Efforts should be concentrated on harnessing renewable clean energy so that there would be no need to look for sites to dispose of nuclear waste.

The receipt of one letter of support, stating that this proposal to be the best

chance of having the site restored to as normal a state as possible, and properly, with a company that has the knowledge and experience to do so.

4.35 The representations received in response to the further information (paragraph 3.34 refers) are as follows:

The receipt of a further 19 signatories to the ‘round robin’ objection letter referred to above and a further letter from Radiation Free Lakeland. The RLF letter makes the following additional comments:

The revised proposal to dispose of the waste above the water table is just as likely to lead to a leaching of waste into the water table, and does not fully address concerns about potential for contamination of groundwater.

RFL questions the rational behind the applicant’s reasoning for it not being possible to construct a VLLW disposal facility at Sellafield – too small and too contaminated for a low level dump!

No health impact assessment has been carried out by the applicant. Cumbria County Council should ask for a detailed and independent health impact assessment to be carried out.

The receipt of a further 16 representations reiterating the objections summarised above and raising the following additional objections:

The proposals would have negative impacts (in visual, acoustic and air pollution terms) particularly during construction (large workforce, heavy plant and machinery), upon residents living in the immediate vicinity of the site.

The negative impact of heavy traffic generated during site construction, and once operational, upon other road users, those adjacent to the haul route, and the condition of the local road network.

The negative impacts upon the health, safety, wellbeing and quality of life, particularly of those living immediately adjacent to the site.

Concern that people are already exposed to natural radiation. The proposed development would add to this.

A full and independent health impact assessment must be carried out prior to a decision being made on this proposal.

The negative impacts upon the viability of a potential adjacent business (specifically in relation to an immediate neighbour who recently purchased his property with the intention of running a Bed and Breakfast premises).

The potential for radionuclides from the site to become airborne and to contaminate groundwater, surface water and adjacent land.

The potentially negative impacts upon a range of wildlife interests, including endangered and protected species such as the Hen Harrier.

The proposed use of this site for radioactive waste disposal has already been precluded from the Minerals and Waste Development Framework and there is no reason why it should be permitted.

Locally produced nuclear waste should be held at either Sellafield or Drigg and not spread around the County. Generally, waste should be stored where it is produced until such time as we are confident that there are no dangers attached to its disposal.

To introduce radioactive waste into landfill sites around the County would turn Cumbria into the nuclear waste bin of the UK.

If there is land available adjacent to Sellafield that could be used for nuclear new build, then surely land could be made available at or adjacent to Sellafield for a VLLW facility.

This proposal to dispose of waste in an unused mine near the head of the River Keekle is risky.

The failure to restore the Keekle Head open cast coal site has already caused distress to local residents.

5.0 PLANNING ASSESSMENT

The Policy Context

5.1 Planning law requires applications for planning permission to be determined in accordance with the development plan unless material considerations indicate otherwise. This section presents the policy context for considering this application. A full assessment as to whether the proposals conform with planning policy and other material planning considerations follows.

5.2 The Development Plan in the context of considering this application consists of the Cumbria Minerals and Waste Development Framework (CMWDF) Core Strategy, the Generic Development Control Policies (both adopted 23 April 2009), and the North West Regional Spatial Strategy (RSS) to 2021. The Policies of the Cumbria and Lake District National Park Joint Structure Plan saved by the RSS are also part of the Development Plan, as are the saved policies of the Copeland Borough Council Local Plan.

5.3 The National Planning Policy Framework (NPPF) published on 27 March 2012 is a material consideration for decisions on planning applications from that date, but does not change the statutory status of the development plan as the starting point for decision making. All of the policies listed above were adopted since 2004 and can be given full weight even if there is a limited degree of conflict with the NPPF (NPPF Paragraphs 214 and 215). The over-riding principle that underpins the NPPF is that planning should contribute to the achievement of sustainable development by performing its economic, social, and environmental roles. (NPPF Paragraph 7 refers) The presumption in favour of sustainable development (NPPF Paragraph 14 refers) does not apply in this case, because the proposal has required appropriate assessment under the Birds and Habitats Directives (NPPF Paragraph 119 refers; Section (vii) below refers). It is also considered that this proposal does not constitute sustainable development, as this assessment will demonstrate. This is evident particularly when considering the need for and viability of the proposal; alternative options; the use of sustainable modes for the transportation of waste, and the impacts on future generations and the natural environment.

5.4 The CMWDF makes only limited reference to LLW and VLLW. Core Strategy Policy 12 and its supporting text makes provision for the Low Level Waste Repository (LLWR) at Drigg, and no other site in Cumbria, to continue to fulfil a role as a component of the UK’s radioactive waste management capability. Acceptance of this role by the County Council is subject to the success of initiatives to divert wastes that do not require highly engineered containment facilities away from the LLWR. The Core Strategy contains no policy on VLLW due to the uncertainties relating to volumes

arising, when they will arise, and the types of management facilities that would be needed, at the time the CMWDF was developed. Information relating to some of the uncertainties has recently been published and is considered in Section (i) following. A review of the Core Strategy is now required but it states that in the interim any such proposals shall be considered in the context of relevant Core Strategy and Generic Development Control Policies including Core Strategy Policies 1 and 2 (Sustainable Location and Design and Economic Benefit) and Generic Development Control Policies 1, 2, 3 and 4 (Traffic, Cumulative Environmental Impacts, General Criteria.

5.5 The CMWDF Site Allocations Policies (adopted 20 January 2011) has been quashed as a result of a successful High Court challenge and does not yet form part of the statutory Development Plan. The challenge was about the need for a further round of consultations which the County Council has now undertaken and the policies have been submitted to the Secretary of State with Hearing sessions taking place in April 2012. The legal challenge was in connection with a minerals policy and was not associated in any way with waste policies. No representations were received about Keekle Head during the repeated consultations, although two representations refer to Site Allocation Policy 6 and accompanying explanatory text which are of relevance to this application. It is considered that the document should be given some weight in this interim time and is material to the determination of this application.

5.6 The Site Allocations document seeks to implement the Core Strategy, reiterates the need to divert VLLW from the LLWR, recognises that new facilities will need to be provided within Cumbria and throughout the UK for the management of such wastes, and acknowledges that the volumes of these wastes will increase significantly as nuclear sites are decommissioned. The document states that a rigorous assessment of the Sellafield site, where decommissioning waste arises, or land adjacent to it, is necessary before more distant sites are considered and that a detailed assessment could conclude that there is potential for additional types of facilities within the existing boundaries of the LLWR site and land within Sellafield. Site Allocations Policy 6 identifies these as sites for the management of LLW. This policy is relevant as the proposal is for the disposal of LLW as well as VLLW. The document also states that as the national policy situation has been confirmed an urgent review of the spatial strategy for dealing with LLW and VLLW, and identification of appropriate sites are necessary.

5.7 The ‘saved’ policies of the Cumbria and Lake District Joint Structure Plan (JSP) (2001-2016) are further saved within the RSS, and of these the most relevant is JSP Policy ST4 which requires that major development should only be permitted where the benefit outweighs the detrimental effects, and alternative locations and methods giving rise to less harm have been fully considered and rejected. JSP Policy ST4 is further supported by Policy NUC 1 of the Copeland Local Plan which states that the Council will only support proposals for the disposal or long term storage of radioactive waste where it meets the requirements of JSP Policy ST4. The Copeland Local Plan (2001-2016) was adopted in June 2006 under the transitional arrangements of the 2004 Act and weight should be afforded to its policies according to their degree of conformity with the NPPF.

5.8 The key North West Regional Spatial Strategy (RSS) (to 2021) policies of relevance to this application are DP7, EM 11, 12, 13 and 14. These reiterate the Government’s policy on managing waste, the application of the waste hierarchy and locational principles, and apply these principles specifically to radioactive waste. The revocation of Regional Strategies has come a step closer following the enactment of the Localism Act on 15 November 2011. However, until such time as the NW RSS is formally revoked by Order, limited weight can be attributed to the proposed revocation. It should also be borne in mind that at the time the CMWDF was prepared; the intention

was that it would function alongside the RSS. The CMWDF was therefore not permitted to repeat policies included in the RSS.

5.9 PPS9 Biodiversity and Geological Conservation (2005) has been replaced by the NPPF which states that the planning system should minimise impacts on biodiversity, provide net gains where possible, and contribute to the Government’s commitment to halt the decline in biodiversity. Reference is made to Circular 06/2005 as continuing to provide detailed guidance on statutory protection for species and habitats. The NPPF also states that planning permission should be refused if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated for, or, as a last resort, compensated for. Development likely to have an adverse effect on a SSSI should not normally be permitted, and planning permission should be refused for development resulting in loss or deterioration of irreplaceable habitats unless the need for, and benefits of, the development in that location clearly outweigh the loss.

5.10 PPS10 Planning for Sustainable Waste Management (March 2011) sets out the Government’s national policies on waste and will remain in place until the National Waste Management Plan is published. PPS10 states that in searching for sites and areas suitable for new or enhanced waste management facilities, waste planning

authorities should consider opportunities for on-site management of waste where it arises and co-location of facilities together, and with complementary facilities. In considering planning applications for unallocated sites waste planning authorities should consider their Core Strategy and the policies and criteria in the PPS. The Key Planning Objectives of PPS10 include reference to the need for Regional planning bodies and all planning authorities to deliver planning strategies that provide a framework in which communities take more responsibility for their own waste; enable waste to be disposed of in one of the nearest appropriate installations, and reflect the concerns and interests of communities. The Decision Making Principles state that waste management should be considered alongside other spatial planning concerns, including economic growth and regeneration, and that the planned provision of new capacity and its spatial distribution should be based on clear policy objectives, robust analysis of available data and information, and an appraisal of options.

5.11 The Written Ministerial Statement: Planning for Growth (23 March 2011) is a material consideration, and requires the County Council to consider fully the importance of national planning policies aimed at fostering economic growth and employment, given the need to ensure a return to robust growth after the recent recession; and consider the range of likely economic, environmental and social benefits of proposals; including long term or indirect benefits such as increased consumer choice, more viable communities and more robust local economies (which may, where relevant, include matters such as job creation and business productivity). PPS4 which is referred to in the Statement has been replaced by the NPPF which takes a positive approach to sustainable growth and expansion on business and enterprise in rural areas.

5.12 The County Council Cabinet Paper 10 (25 August 2009) “Consultation on UK Strategy for Management of LLW” which approves a consultation response to the LLW Strategy finalised in 2010 is also relevant. It states that the Council does not support radioactive waste treatment or disposal facilities away from licensed sites unless it has been proven these facilities cannot be located on or adjacent to existing licensed sites. It also states that opportunities to treat and dispose of the waste at or adjacent to Sellafield should be seriously examined and used in preference to sites away from Sellafield. It is not development plan policy, but is consistent with CMWDF and RSS policies and is therefore considered to be material to the consideration of this proposal.

5.13 Other key policy documents with fall outside of the Development Plan include the Policy for the Long Term Management of Solid Low Level Radioactive Waste in the UK (DEFRA, DTI, Welsh Assembly and Scottish Executive; March 2007), the Government Policy document relating to LLW, and the UK Strategy for the Management of Solid Low Level Radioactive Waste from the Nuclear Industry (August 2010), which has been developed by the Nuclear Decommissioning Authority (NDA) to reflect and implement Government policy. These documents are part of national policy guidance and are material considerations of relevance to the determination of this application. There is also the UK Management of Solid Low Level Radioactive Waste from the Nuclear Industry: LLW Management Plan prepared by the Low Level Waste Repository Ltd on behalf of the NDA (December 2009).

5.14 The 2007 Policy states that disposal of solid LLW to an appropriately engineered facility, either below or above ground, with no intent to retrieve, should be the end point for LLW that remains following the application of the waste hierarchy; that this position is held because new disposal facilities will be of sufficiently robust design to ensure that risks to the public will be acceptable, and that postponing final disposal to future generations is therefore unjustified. It refers, without prescription or preference, to a range of disposal options including disposal at or adjacent to nuclear licensed sites and disposal at specified landfill sites. The Policy states that in determining where such disposal facilities should be located, the ‘proximity principle’ should be applied to enable waste to be disposed of in the nearest appropriate facility, but that whilst the desire to avoid excessive transportation of materials is an important consideration, it must be balanced with all other relevant factors. It also states that the need to consider alternatives to long distance transport where possible applies in particular to large quantities of lower activity soil and rubble that will arise from large nuclear site decommissioning activities.

5.15 The 2010 Strategy emphasises the need to apply the waste hierarchy more effectively to the management of LLW to significantly reduce past reliance upon disposal, and that disposal facilities are a precious resource that should be used sparingly and as a last resort. It again presents a range of disposal options available (Section (i) refers) but does not prescribe which of these should be preferred. It also reiterates the need to apply the proximity principle, and the need to make optimal use of the LLWR near Drigg.

5.16 The 2009 Management Plan identifies the tasks and activities for effectively implementing the UK nuclear Industry LLW Strategy across the NDA estate. It documents the key concepts of the waste hierarchy, sustainability, use of good practice and innovative technology, and sets out the overall plan for developing and implementing an integrated LLW programme throughout the UK. It identifies the scope, schedule and resources (how, when and who) needed to conduct the tasks for improving LLW management through the entire waste lifecycle from waste generation to final disposal, integrating the results of previous strategic studies.

5.17 Both the 2007 and 2010 documents referred to require that waste management decisions should not be taken on an ad hoc basis, and that an open and transparent Integrated Waste Strategy is required. Work is continuing on the Integrated Waste Strategy by the NDA and LLWR Ltd together with the more detailed assessments of the radioactive waste inventory. Initial work is described in Section (i) below, and this and the detailed assessments will form part of the evidence base for the imminent review of the CMWDF Core Strategy.

5.18 The other key regulatory framework of relevance to this application is provided by the Environment Agency. The Agency is the regulatory body with a duty to determine applications for the disposal of all radioactive waste, including LLW. As a result, prior

to becoming operational, this proposal would require an application to be made to the Environment Agency for a permit under the terms of the Environmental Permitting Regulations 2010. In issuing a permit, the Environment Agency would have to be satisfied that the proposals were safe and provided adequate protection for the environment and people. Those nuclear operators wishing to consign waste to the site would also need to apply for and hold an appropriate permit under the Environmental Permitting Regulations.

5.19 The proposed activities would also need to be subject to a submission to the European Commission under Article 37 of the Euratom Treaty. Since February 2010, this has required the Department of Environment and Climate Change (DECC) to consult the European Commission on any plan for the disposal of radioactive waste. The submission would need to contain an assessment of the potential impact of the proposed disposals on other member states. The Environment Agency would not issue any permit until a positive decision had been made against such a submission. At present, the disposal of radioactive waste is not a licensable activity, so a Nuclear Site Licence as prescribed by the Nuclear Regulations Act 1971, and issued by the Health and Safety Executive’s Office of Nuclear Regulation, would not be required.

The Planning Issues

5.20 Taking into account the Development Plan and other policy considerations, the consultation responses and the representations made by the local and wider community, the main issues raised by this planning application are:

Whether the proposal accords with the Development Plan and, if it does not, whether there are any material considerations that indicate permission should otherwise be granted;

Whether there is a local, regional or national need for the facility at this time;

The consideration of alternative sites;

The potential socio-economic impacts, including the negative perceptions associated with the nuclear industry;

The impacts of traffic and transportation, including consideration of the concept of minimising waste road miles and the potential for rail or sea transport;

The health and safety of the local community, including consideration of actual harm to the health and safety of the local community and perceived harm;

The impacts upon residential amenity, including matters such as noise, vibration and air quality;

The environmental impacts, including the impacts upon hydrology, ecology and landscape;

The potential benefits of the proposed development, and

Consideration of alternative proposals to secure the restoration of the site.

5.21 The main issues raised by this application are whether it can be demonstrated that there is a present need for this major built development, and if so whether the need is sufficient to outweigh the environmental, social and economic impacts of the development, taking alternatives into account.

(i) The Local, Regional and National Need for the facility

5.22 The National policy position (2007 Government Policy document and the 2010 NDA Strategy document) is that additional facilities are needed for the management of the lower activity range of LLW that does not require highly engineered containment. This is in order to divert this waste from the facilities at the LLWR near Drigg. This need was reiterated by the recent decision (May 2011) by the Secretary of State to grant planning permission to permit the disposal of LLW at an existing landfill site at King’s Cliffe Northamptonshire. The Secretary of State stated that ‘...it is necessary to secure ways to husband the valuable resource of Drigg Low Level Waste Repository, which should be used only for the residual wastes that cannot be treated elsewhere.’ The County Council accepts this principle and the continued role of the LLWR as one component of the UK’s radioactive waste management capability. This is made clear in the CMWDF Core Strategy Policy 12 and the Site Allocations Policies document (Paragraph 3.13). It is presented by the applicant as justification for the need for the Keekle Head facility.

5.23 The Government’s 2007 policy for LLW (paragraph 5.14 refers) requires all practicable options for the disposal of LLW to be considered. It requires the NDA to develop and publish a plan for the optimal use of the LLWR near Drigg; to assess the extent to which other disposal options might be employed for decommissioning and clean-up wastes and to assess if, and when, a replacement or replacements of the LLWR might be required and planned for.

5.24 The NDA’s 2010 LLW Strategy (paragraph 5.15 refers) makes clear that every effort is required to avoid disposal but where LLW disposal is still needed a number of disposal options should be considered. These are the use of existing landfill sites; development of new facilities on or adjacent to nuclear sites to dispose of wastes from that site or from a number of sites and the use of new facilities away from nuclear sites to dispose of wastes from one or a number of nuclear sites. Neither document prescribes which of these is preferred. The potential of this range of identified options has not yet been investigated.

5.25 The Core Strategy identifies the need for the Repository near Drigg, and no other site within Cumbria, to continue to provide capacity for the disposal of LLW (Core Strategy Policy 12 and supporting text Paragraph 8.27). No such need for VLLW disposal capacity is identified in the Core Strategy because of (as stated in Paragraph 8.28 of the Core Strategy and reiterated in Paragraph 3.15 of the Site Allocations Policies document) the uncertainties in the volumes of these wastes arising in Cumbria, when they will arise, the potential for driving some of them up the waste hierarchy and the type of facilities that will be required for their management. Whilst uncertainties still persist, this section will show that progress is being made to address them.

5.26 PPS10 is also relevant to the consideration of need. Paragraph 4 states that new capacity and its spatial distribution should be based on clear policy objectives, robust analysis of available data and information, and an appraisal of options; Paragraph 7 states that Regional Spatial Strategies, should take account of any waste management requirement identified nationally, the Government’s latest advice on forecasts of waste arisings and the proportion of waste that can be recycled. Paragraph 11 states that in considering the need for additional waste management facilities, regional planning bodies should take into account the extent to which existing, and consented waste management capacity not yet operational, would satisfy any identified need.

5.27 Since 1959, most of the solid LLW generated in the UK has been transported to the LLWR near Drigg for disposal. Between 1959 and 1995, approximately 800,000 cubic metres of waste was deposited in a series of clay-lined trenches and covered with soil. Since 1988, most waste has been packaged in large steel ISO freight containers and placed in an engineered concrete vault, known as Vault 8, which was almost completely filled by 2008. The recently constructed Vault 9 provides additional storage capacity which is permitted until 2018.

5.28 In July this year, the County Council received a planning application to provide approximately 1 million cubic metres of disposal capacity at the LLWR. The proposal is for the disposal (rather than storage) of LLW in existing Vault 9; for disposal by higher stacking above Vaults 8 and 9 and for the phased construction of six new Vaults 9a and 10 to 14. The planning application anticipates the phased disposal of LLW in the vaults over the period of 2014 to 2079. The outcome of this application cannot currently be anticipated. It is recognised that there will still be a need to make optimal use of this facility as part of the UK’s LLW management capabilities.

5.29 The vaults at the LLWR are engineered to provide containment of the full activity spectrum of LLW, up to a radioactive content not exceeding 4,000Bq/g of alpha or 12,000Bq/g of beta or gamma radioactivity (paragraph 3.3 refers). Data from the LLWR Ltd publication UK Management of Solid Radioactive Waste from the Nuclear Industry: Low Level Waste Strategic Review (NDA, March 2011) indicates that of the LLW received at the Repository from 2005 to 2010, 65% of the waste has specific activities of less than 200 Bq/g. It is accepted that there is a need to divert these lower level activity wastes from this facility.

5.30 The main sources of waste generation since the 1950s onwards have been nuclear energy development, nuclear power generation and the weapons industry. The main producers of LLW and VLLW in the UK include the 19 nuclear sites that the NDA is responsible for operating, decommissioning and remediating. These are Sellafield and Windscale in Cumbria, the latter of which is being decommissioned; Springfields in Lancashire; Capenhurst in Cheshire which is currently being decommissioned; the eleven Magnox power stations, nine of which are no longer operational and are being decommissioned; and Dounreay in Caithness, Harwell in Oxfordshire and Winfrith in Dorset which have either already been or are currently being decommissioned. Other producers include the eight EDF Energy operated power stations which are still in operation. In addition, hundreds of non-nuclear industry users of radioactive materials produce radioactive wastes, including universities and other research establishments, hospitals, the pharmaceutical industry and the oil and gas industry. The contribution that the non-nuclear producers of radioactive waste make to the total waste generated is small. There are still uncertainties about the volumes of Naturally Occurring Radioactive Materials (NORM) waste likely to be generated by the oil and gas industries.

5.31 The UK Radioactive Waste Inventories (prepared for the Government and the NDA) provide a record of information on radioactive wastes in the UK, including forecasts of future waste arisings. Table 1 in Appendix 2 shows the forecast arisings of VLLW and LLW in the UK from the last two Inventories until 2120. The 2010 UK Radioactive Waste Inventory (February 2011) issued by the Department of Energy and Climate Change (DECC) and the NDA is the latest national record of information on all radioactive wastes in the UK. It anticipates that the total volume of LLW (including the sub-category VLLW) will be 4.4 million cubic metres (comprising 3.3 million cubic metres of VLLW and 1.1 cubic metres of LLW), about 1.2 million cubic metres more than the 2007 Inventory. The 2010 Inventory explains that the principal reason for this increase is an additional 1.6 million cubic metres expected from decommissioning

activities at Sellafield. This takes account of the anticipated increase in volume once the buildings to be decommissioned become rubble. Sellafield is the dominant LLW generator for the UK, producing an estimated 3.25 million cubic metres (75%) of all forecast future LLW arisings. The vast majority of this is attributable to a single stream – high volume VLLW (HVVLLW) arising from decommissioning at the site. Much of the remaining LLW is from Magnox sites (472,000 cubic metres) and Springfields (240,000 cubic metres) with smaller contributions from ARG power stations, operated by EDF Energy (110,000 cubic metres), Harwell (91,100 cubic metres) and Dounreay (63,900 cubic metres).

5.32 The NDA’s 2010 Strategy recognises that the inventories provide an upper limit for the amount of waste to be managed, but it states that ‘…for strategic planning purposes, there is also a need for estimates that reflect the most likely levels of waste arisings’ and refer to a number of initiatives planned to improve the inventory data, particularly with respect to the volumes of VLLW and exempt waste in the forecasts.

5.33 The Low Level Waste Repository Ltd provides services to treat and dispose of LLW and, on behalf of the NDA, manages the LLWR and oversees the LLW National Waste Programme to ensure that LLW is managed effectively and in a way that supports the ongoing delivery and implementation of the NDA’s 2010 LLW Strategy. As part of its remit, it has conducted a review of the 2010 Inventory to assist the NDA in implementing the 2010 Strategy and the 2009 LLW Management Plan. The document (UK Management of Solid Low Level Radioactive Waste from the Nuclear Industry: LLW Strategy Review; NDA, March 2011) comments on the 2010 Inventory data and reports on efforts that have been made at some nuclear sites to re-evaluate waste estimates and activities to produce a more accurate picture of the expected waste volumes and costs associated and so to improve the accuracy of the 2010 Radioactive Waste Inventory.

5.34 The March 2011 Review states that, according to the 2010 Inventory, LLW volumes are at their lowest since records began, mainly because of the introduction of the sub category VLLW; that VLLW accounts for 75% of the LLW (about 3.3 million cubic metres) and that the most significant proportion of this (87%) will arise after 2040. The efforts made by some nuclear sites to improve the accuracy of the data include improved categorisation of wastes, waste segregation, the treatment of waste prior to disposal, and the exclusion of exempt waste from the VLLW category of the Inventory. Sellafield Ltd considers that 70% of the 3.25 million cubic metres of VLLW predicted to arise through the life of the site could be considered very likely to be exempt or out of scope waste. The significance of this is explained below (paragraphs 5.43-5.44).

5.35 Another analysis carried out by LLWR Ltd (UK Management of Solid Low Level Radioactive Waste from the Nuclear Industry: Analysis of Near-term Low Activity LLW Arising within the UK Radioactive Waste Inventory 2010; NDA, May 2011) illustrates the implications that further assessment and categorisation of the forecast arisings can have on the predicted volume of arisings. As well as discounting exempt or out of scope waste, it applies the waste hierarchy (including identifying wastes for alternative recycling or treatment processes, such as metal recycling) to LLW with an activity level of up to 200 Bq/g for the period 2010-2026. The total volume of such waste predicted to arise in the UK during this period is 429,672 cubic (from a LLW total of 675,015 cubic metres). Following the application of the waste hierarchy and exclusion of exempt waste, the volume is expected to be reduced to 263,416 cubic metres. Of the top four producers (Sellafield, Harwell, Springfields and Dounreay), this results in considerable reductions in anticipated volumes for all but Harwell (compared to the 2010 Inventory estimations for the same period), as shown in Table 2, Appendix 2.

5.36 The latest assessment undertaken by the LLWR Ltd was presented for the first time at the NuLeAF (Nuclear Legacy Advisory Forum) Seminar on 9 March 2012. The LLWR Ltd has undertaken a capacity analysis looking at predicted LLW arisings and the capacity of existing and potential facilities for the disposal of such wastes. Potential routes are presented for the disposal of LLW with activity levels above and below 200 Bq/g. Both are of relevance to the Keekle Head application as it proposes a facility for the disposal of LLW up to 500 Bq/g.

5.37 The findings so far indicate that the UK faces a capacity challenge as the maximum vault capacity of the LLWR near Drigg is 1.7 million cubic metres, but projected packaged arisings for the whole LLW inventory are 6.4 million cubic metres. The LLWR Ltd concludes that the LLWR would have sufficient capacity to accommodate all inventory arisings with an activity level above 200 Bq/g until 2130, if the space was managed wisely through recycling and volume reduction and alternative solutions were sought for the disposal of LALLW and VLLW. Based on current projections, this would negate the need for a second national facility for the disposal of LLW with an activity level above 200Bq/g. The continued use of the site is subject to the Environment Agency’s approval of the LLWR’s Environmental Safety Case and Cumbria County Council’s approval of the current planning application (paragraph 5.28 refers) for additional disposal capacity. Whilst it is would be inappropriate to pre-judge the outcome of these regulatory processes, the continued use of this existing facility in this way would appear at least to be compliant with the Government’s LLW policy, the NDA’s Strategy and development plan policy.

5.38 Significant progress is being made by the nuclear industry with the implementation of the waste hierarchy, including metal recycling and the use of incineration routes for combustible wastes.

5.39 LALLW and VLLW are those wastes with an activity level below 200Bq/g (paragraph 3.3 refers), which do not require the level of containment provided by the LLWR. The current disposal routes for these wastes are the Calder Landfill Extension Segregated Area (CLESA) at Sellafield, Lillyhall Landfill in Workington, Clifton Marsh Landfill in Lancashire and Kings Cliff Landfill in Northamptonshire. Table 3, Appendix 2 provides details of these facilities, including their current planning permission expiry dates, indicative extension timescales and disposal capacity.

5.40 The LLWR Ltd has examined LALLW and VLLW arisings (i.e. all UK radioactive waste with an activity level below 200 Bq/g) and capacity in the period up to 2030 and concludes that there is currently a large over capacity in the market for disposing of these wastes until 2015; that further planning permissions at the existing Kings Cliffe, Lillyhall and Clifton Marsh facilities are required to meet the shortfall post-2015, and that if all granted, these would provide approximately four times the capacity required to accommodate arisings until around 2026 and sufficient capacity between 2026 and 2030. These findings are illustrated in Figure 1, Appendix 2. It is important to note that this analysis excludes the arisings that would be disposed of and the capacity provided by CLESA and Dounreay. This is because these facilities are for the disposal of their respective on-site arisings only. Figure 1 therefore indicates the remaining demand for other disposal routes.

5.41 The findings are consistent with the site specific data presented in Tables 2 and 3, Appendix 2. Considering the predicted arisings to 2026 (Table 2) and existing capacity potentially up to 2030 (Table 3), it appears that the CLESA at Sellafield, would contribute significantly towards meeting Cumbria’s needs. At a recent meeting (August 2011) between the County Council, Sellafield Ltd and the NDA, Sellafield Ltd stated that they consider the current capacity provided by the CLESA to be adequate

to deal with their on-site waste arisings of a certain type and activity level up until around 2025. The CLESA would not be able to accommodate all on site arisings within this period. The latest data supplied by Sellafield Ltd and derived from the 2010 Inventory indicates that VLLW arisings will not commence in earnest until around 2030, will rise thereafter and peak at around 2045, 2060, 2080 and 2115. LLW arisings, which are far less significant in terms of volumes, peak at around 2050 and tail off considerably thereafter. These anticipated peaks are associated with decommissioning.

5.42 Further consideration of Tables 2 and 3, Appendix 2 indicate that the existing disposal facilities have the capacity to address the needs of the other main waste producers in the UK for the period up to 2026, subject to planning permission being granted to extend the planning consents, and that these sites are located to accommodate the waste arisings. Clifton Marsh already accepts Springfield’s decommissioning wastes and Kings Cliffe, although 90 miles away, is proposed for Harwell’s waste. A planning application was made in March this year to the Infrastructure Planning Commission (now the Planning Inspectorate) to extend the void space and time period for the disposal of LLW at Kings Cliffe until 2026. Dounreay’s on-site facility is currently being constructed. It is intended to dispose of all remaining LLW at Dounreay and is planned to open in 2014.

5.43 The estimates of arisings presented by the LLWR Ltd at NuLeAF include LLW that could be classified as exempt or out of scope. Radioactive wastes have recently been re-categorised in connection with the Environmental Permitting Regulations 2010. The recent DEFRA publication Guidance on the scope of and exemptions from the radioactive substances legislation in the UK (September 2011) sets out the rationale behind the exemptions regime, the Government’s intention for the legislation and how the regime should be interpreted and implemented. This document defines exempt waste substances as radioactive but exempt from the need for an Environment Agency permit, and introduces a further category ‘out of scope’ waste, which is considered ‘not radioactive’ for the purposes of the legislation and so is not subject to any regulatory requirement under the radioactive waste parts of the Regulations.

5.44 The exclusion of exempt waste and out of scope waste from the predicted total arisings could have significant implications. This is because the radiation dose levels that would be received (by a member of the public) from exempt waste is so low, and from ‘out of scope’ waste even lower, that these categories of waste would not require the additional permitting controls provided by the existing LLW disposal facilities or the proposed Keekle Head facility. There are therefore potentially more opportunities for dealing with such waste other than disposal to this proposed facility or to landfill. The LLWR Ltd’s Strategic Review (March 2011) indicates that over the next 100 years up to half of all VLLW could be categorised as out of scope or waste that is exempt from the radioactive parts of the 2010 Regulations. There is, however, some uncertainty and further characterisation work needs to be undertaken.

5.45 The LLWR Ltd has identified a further potential disposal route for VLLW in the form of the proposed cap profile at the LLWR. The planning application to increase the capacity of the LLWR for the disposal of LLW (paragraph 5.31 refers) refers to the potential for VLLW arisings from the nuclear industry to be used as part of the capping material for the trenches and vaults. The LLWR Ltd has assessed that the cap could potentially accommodate between 200,000 and 700,000 cubic metres of VLLW, provided it meets the engineering suitability criteria. This could amount to up to half of the post-2015 arisings (to around 2030). It is anticipated that subject to the Environment Agency’s approval of the Environmental Safety Case and planning permission being granted, cap construction could commence in 2014/15.

5.46 As for other potential disposal routes for LALLW/VLLW, the NDA announced at the LLW Programme Delivery Group meeting in February 2012 that all nuclear sites will be undertaking assessments of the potential for the development of on-site LLW management facilities, and that Sellafield’s on-site assessment is planned for early 2013. The LLWR Ltd referred to this potential in its presentation to NuLeAF.

5.47 It should be noted that the data used by the applicant to justify the need for this proposal was derived from the 2007 Inventory, not the more robust analyses of predicted arisings that have taken place since, as indicated above. Limited weight can therefore be given to their claim that there is a need for a facility of this scale at this time.

5.48 The need for this type of facility has not been identified in the RSS, or the CMWDF Core Strategy. Notwithstanding this and the absence of policies in the CMWDF relating to VLLW, the evidence above indicates that there is no need for the Keekle Head facility either in the immediate or medium term as there is excess capacity at existing sites, subject to planning permissions being granted, to address the need at least until around 2030. This approach accords with the principles of PPS 10, Paragraph 11 (paragraph 5.26 of this report refers) and would enable the diversion of the lower end LLW from the LLWR in the immediate to medium term at least, in accordance with the Government’s 2007 Policy and the NDA’s 2010 Strategy specifically in relation to the need to husband the valuable resource of the LLWR.

5.49 The above illustrates that efforts are being made to improve the accuracy of forecast LLW arisings, and to address the uncertainties referred to in the CMWDF in terms of the volumes of LLW, when they will arise, the potential for driving them up the waste hierarchy and the types of facilities that may be needed to manage them. Uncertainties still persist, but the LLWR Ltd is continuing to work with the NDA to reduce these. The LLWR Ltd will finalise and publish the capacity assessment presented at NuLeAF in the Summer, 2012; will further evaluate the LLWR capping opportunities, and contribute to the implementation of the NDA’s Strategy for LALLW/VLLW. Future inventories will also need to take account of the Environment Agency’s re-categorisation of large volumes of what were previously VLLW as no longer being radioactive waste (i.e. the ‘out of scope wastes’).

5.50 This analysis has shown that more scrutiny that is applied by the nuclear industry to re-assess the data; reconsider LLW management options, and apply measures to minimise the residual volumes of waste that will need to be disposed of, the more the anticipated volumes of arisings appear likely to be revised downwards. This may cast doubt on the need for an additional facility of the scale proposed at Keekle Head even in the longer term. Certainty in predicting volumes of waste arisings is necessary in order to accurately forecast need. Until these uncertainties have been removed as far as possible, there is no justification for granting permission for the Keekle Head facility. This would be contrary to the policy approach advocated in PPS10 (Paragraphs 4 and 7).

5.51 The proposal does not accord with national policy advice and the need for such a facility has not been demonstrated.

(ii) Alternative Sites

5.52 RSS Policy EM13 states that the ability of existing established waste management sites to meet the needs of the region or sub-region should be fully explored and that such sites should be used in preference to other sites where waste management activities have not previously been located. PPS10 states that local planning authorities should consider opportunities for the on-site management of waste where it arises, and look for opportunities to co-locate facilities together with complimentary activities (Paragraph 20). JSP Policy ST4 requires that major development should only be permitted where alternative locations and methods giving rise to less harm have been fully considered and rejected. JSP Policy ST4 is further supported by Policy NUC 1 of the Copeland Local Plan.

5.53 CMWDF Core Strategy Policy 12 provides for the continued role of the LLWR as a component of the UK’s national radioactive waste management capability, and Paragraph 8.27 of the supporting text states that provision is made for the continued role of the Repository, but no other site in Cumbria. The rigorous assessments of potential options for disposing of LLW referred to in the CMWDF Site Allocations document (paragraph 5.6 above refers) and the opportunities described in PPS10 and RSS Policy EM13 have not yet been undertaken or explored. These would include the potential for additional types of facilities to be provided within the existing boundaries of the 100ha LLWR and the 280ha Sellafield complex.

5.54 The applicant has assessed and dismissed a range of alternative sites to Keekle Head, including a potential extension to the LLWR site; land within Sellafield; land adjacent to the Sellafield complex and Lillyhall Landfill; and ‘other sites’ including those sequentially preferable to Keekle Head (Whitehaven Commercial Park and Lillyhall Industrial Estate), and those sequentially equal to Keekle Head (Rowrah Quarry, Eskett Quarry and the Marchon Works).

5.55 The ‘other sites’ were dismissed by the applicant for a variety of reasons including their restricted size; lack of availability and incompatibility with existing land uses. Lillyhall Landfill was considered inappropriate because the applicant considers that the site has not been designed for the disposal of VLLW/LLW and an extension to the LLWR was dismissed because it would be contrary to Copeland Borough Council’s Local Plan policy and the applicant considers the site to be physically constrained.

5.56 The Environmental Statement Addendum (April 2011) further assessed the potential for VLLW/LLW to be disposed of at the LLWR site and at/adjacent to Sellafield. The applicant states that in a series of meetings with the NDA, Sellafield Ltd and LLWR Ltd, they were advised that there is insufficient space on the Sellafield site to construct a VLLW disposal facility; that there are potentially large areas of contaminated land on site that would have to be excavated to develop a VLLW facility; that potential future options would only be identified after carrying out extensive land characterisation over a period of time spanning several decades, and that there were no immediate plans for on site disposal facilities to be developed beyond the CLESA.

5.57 The applicant states that, the LLWR Ltd does not consider the development of a VLLW disposal facility on site at the LLWR to be a practicable option since it would not be regarded as best use of the LLW disposal national asset. The applicant further states that whilst reference is made in the LLW Repository Developed Operational Strategy (LLWR Ltd, March 2010) to the option to develop a purpose built VLLW disposal facility on site at the Repository, this would be as a last resort should the supply chain not be successful is securing a disposal service.

5.58 The applicant also dismisses the area of land adjacent to Sellafield that was put forward (but had to be removed) in the CMWDF site allocations process as a potential site for VLLW disposal, concluding that it is inappropriate because of its greenfield status and proximity to areas of ecological significance and the National Park. The applicant concludes by stating that the Sellafield and LLWR sites have major constraints to their development for landfill disposal as they sit on a major aquifer, are close to sea level and are therefore potentially at risk from coastal erosion and inundation due to sea level rise.

5.59 Since the applicant met with these organisations, events have moved on to suggest that there could be potential for LLW/VLLW disposal capacity at existing nuclear sites which has not been, but should be, fully investigated. The planning application to extend the LLWR has been lodged with the County Council (paragraph 5.28 refers) and the County Council itself has also met with Sellafield Ltd and the NDA (in August 2011) to investigate the potential for the development of further facilities for the disposal of VLLW/LLW at/adjacent to the Sellafield site.

5.60 There appears to be scope at the LLWR site for the disposal of LLW. The LLWR Ltd acknowledges the potential for VLLW to be used in the LLWR cap profile (paragraph 5.45 refers) and this is referred to in the current planning application. The County Council recognises the need to ‘husband’ the highly engineered resource near Drigg in line with the Government’s 2007 Policy, the NDA’s 2010 Strategy and development plan policy. However, it is important to note that the need to preserve the resource for the higher end LLW relates only to the vaults, not to the remainder of the 100 ha site. Even the current proposals for additional LLW vaults would only take up about half of the total site area of the Repository. For some time, the County Council has expressed a wish that the potential for disposing of the lower end LLW at this extensive site should be investigated in addition to the potential capacity for the engineered vaults. There are, as yet, no plans to look at the on-site potential for a lower end LLW facility.

5.61 At the meeting with Sellafield Ltd and the NDA, Sellafield confirmed that they were not currently in the process of considering an alternative to CLESA either on or adjacent to the site. This was because they considered the current capacity provided by the existing CLESA to be adequate to deal with their on-site waste arisings of a certain type and activity level up to around 2025. They believed that a replacement facility will be required after this period, unless other facilities are provided elsewhere, and so have not ruled out an on-site alternative. However, they explained that the potential constraints to developing an on site replacement to the CLESA were funding and the availability of land, where the priority is on new large scale development to deal with legacy issues. Sellafield Ltd and the NDA also confirmed that there had been no assessment to date of the potential use of NDA owned land adjacent to the Sellafield site for the disposal of VLLW/LLW, since an indicative layout that was discussed with the County Council a few years ago.

5.62 The NDA 2010 Strategy states that the potential options which should be considered for the disposal of the large quantities of LLW and VLLW arising from decommissioning at Sellafield include land which is within or adjacent to the complex. The Strategy states that Sellafield Ltd, the NDA and LLWR Ltd will evaluate this potential and confirms the timescale identified in the meeting and referred to above by stating that the on site option is viewed as a medium to long-term disposal solution. It is important to note that the recent announcement by the NDA that all nuclear sites will be undertaking assessments of the potential for the development of on-site LLW management facilities, and that Sellafield’s on-site assessment is planned for early 2013 has brought this intention forward.

5.63 The LLWR cap element of the recent planning application, the recent discussions held between the County Council and Sellafield Ltd, the 2010 Strategy itself and the recent announcement by the NDA indicate that the deliverability of the potential alternative sites has been advanced since this application was submitted. There is clearly potential for LLW/VLLW disposal capacity at the existing nuclear sites, which has not been fully considered or assessed, as required by the policies specified above, and could provide additional disposal routes (that is, in addition to those already identified in Section (i)) in the near and longer terms.

5.64 These potential disposal routes would also comply with the general sustainability objectives of PPS 10, RSS Policy EM13, the NPPF and assist in diverting the lower end LLW away from the LLWR. Whilst the Keekle Head proposal could help divert wastes from the LLWR, it is considered unnecessary (Section (i) refers) and clearly contrary to these wider development plan and council policy objectives. It is considered that the potential at existing licensed nuclear sites should be comprehensively examined and rigorously assessed before any consideration of sites further afield, such as Keekle Head, takes place. The application at Keekle Head is sequentially less acceptable than existing licensed nuclear sites where the waste arises or is managed. To grant planning permission for this facility at this time would prejudice consideration of these sequentially preferable sites.

(iii) The potential Socio-economic Impacts

5.65 The potential socio-economic impacts of this development proposal must be considered. The Cumbria Community Strategy stated that Cumbria has been the slowest growing sub-region in the UK since the mid-1990’s, and that its economy must grow faster than anywhere else in the UK just to catch up. The economic performance of West Cumbria is driven by the dominance of the nuclear industry and the restructuring of older manufacturing industries such as steel and shipbuilding, and there is now a higher than average representation of employment in manufacturing (including nuclear) and research and development. Growth in economic output has been slow, reflecting a decline in manufacturing output and the relatively low representation of financial and professional services.

5.66 Between 1997 and 2009, with a GVA growth of 40% (compared to a UK GVA growth of 70%) West Cumbria (Copeland, Allerdale and Barrow) was the 83rd slowest growing economy out of the 93 NUTS3 areas (ie areas comprising authorities in England grouped on a geographical basis). [GVA means the difference between the value of goods and services produced and the cost of raw materials and other inputs used in their production.] The fragility of West Cumbria’s economy and its continuing structural decline is reflected in the area’s long standing designation as an Assisted Area (a term given to the most economically under-performing areas in need of grant assistance). The retention of young people and graduates in West Cumbria is low and those who stay tend to be those with fewest life options. Generally, the population of the area is ageing, and, unlike other parts of Cumbria, tourist visits are relatively low, as is the presence of second homes.

5.67 Britain’s Energy Coast: A Masterplan for West Cumbria (2007-8) seeks to address the economy’s structural weaknesses and reverse decades of under-performance in the West Cumbrian economy by facilitating transformational change. The proposed site for the Keekle Head facility is located within the ‘energy coast’ area identified in the Masterplan. By 2027, the key partners driving forward the Masterplan intend West Cumbria to be ‘…a confident place that prides itself on its strong economy providing opportunities for all and offering a lifestyle of choice.’ It seeks to do this through developing a strong and diversified economy and by projecting a positive image to the world. The Strategy for Sustainable Communities (the latest Community Strategy),

which draws together the priorities of development plan documents and strategies to create a shared vision for West Cumbria, reiterates the aim of the Masterplan and states that the challenge for West Cumbria is to ‘…secure the economic future of the area by actively managing the transition from nuclear re-processing to decommissioning and building up a diverse, high-tech, innovative economy, which avoids dependence on a single industry.’

Economic Impacts

5.68 Recognising the serious social and economic problems experienced in parts of Cumbria, CMWDF Core Strategy Policy 2 states that new development proposals should demonstrate that they have the potential to provide economic benefit in terms of the number of jobs directly or indirectly created or safeguarded, and the support given to other industries and developments. The policy also states that it will be important to ensure that new proposals would not prejudice other regeneration and development initiatives. In addition, CMWDF Generic DC Policy 3(e) requires the cumulative effects of development proposals (in-combination with existing land uses) upon the wider economy and regeneration to be assessed. PPS10 (Paragraph 21) states that in deciding which sites and areas to identify for waste management facilities, the cumulative effects of previous waste disposal facilities on the well-being of the local community, including any significant adverse impacts on economic potential, should be assessed.

5.69 The Keekle Head facility would create between 15 and 30 jobs for a period of three to four years during the enabling restoration/construction phases of development and an estimated 15 throughout the operational period of around 50 years. The applicant states that these jobs created directly by the facility would be supplemented by ongoing contracts with local suppliers and maintenance companies, and the directly employed workforce would support local facilities and retailers, although there has been no attempt by the applicant to quantify these indirect economic impacts. The applicant concludes that overall job creation would be relatively low (but with good prospects of these being secured by local people) and the effect would be one of minor to moderately beneficial.

5.70 It is agreed that in terms of employment creation the impact would be beneficial. However, it is considered that the levels associated with this facility would be of limited overall significance, especially given the scale and duration of the facility. This conclusion is supported by an analysis undertaken by the Cumbria Intelligence Observatory (March 2012). The employment data provided in the ES was used to forecast the economic impacts (employment levels and GVA) of the development assuming a start date of 2013 and continuing until 2026 (the limit of the Experian Economic Impact Model projection period) for Copeland and Cumbria. Whilst the model makes a number of assumptions, the results indicate that the effects on the local economy both in terms of job creation and additional GVA would be relatively low, leading to an estimated additional GVA of only 0.13% at peak employment levels during 2016 and 0.1% thereafter.

5.71 The applicant considers that the facility would assist in preserving the void at the Low Level Waste Repository near Drigg. By providing a long term outlet for the disposal of LLW and VLLW, the applicant also considers the facility would provide ‘underpinning support’ to the decommissioning programme at Sellafield and other sites; to the expected redevelopment of the nuclear industry in West Cumbria, and to any West Cumbrian nuclear ‘new build’ projects. Once operational, the applicant suggests that the development would have a minor to neutral beneficial effect upon tourism in the area and a neutral impact upon inward investment. The applicant considers the proposal would be unlikely to have an appreciable effect on tourism or cause concerns to potential investors because of the dominating presence that the nuclear industry

already has in West Cumbria. The applicant concludes that the proposed facility would not give rise to any adverse impacts from a socio-economic perspective and the overall effect would be one of minor beneficial.

5.72 Core Strategy Policy 2 states that it is important to ensure that developments would not prejudice regeneration and other development initiatives. The vision for West Cumbria, as set out in the Masterplan and the Community Strategy is for the area to be recognised as a leading nuclear, energy, environment and related technology business cluster, but also to diversify into new markets, encourage greater levels of business start ups and enterprise and to improve visitor attractions in the area to increase the economic benefits of tourism. The aim is to rebalance the West Cumbrian economy away from being over-reliant on a small number of industries, including the nuclear industry, but to still recognise the role West Cumbria has as a centre of excellence for Britain’s nuclear industry.

5.73 Whilst a facility that could provide significant capacity for the disposal of LLW/VLLW could support the decommissioning and nuclear new build industries of West Cumbria, it is considered that there is no need for a facility at this time (Section (i) refers) and it is strongly argued that this is not the right location, away from existing established nuclear sites (Section (ii) refers). There is also concern that this development could prejudice essential regeneration, development and diversification initiatives and generally undermine efforts to rebalance the local economy.

5.74 Experience in Cumbria indicates that the dispersal and proliferation of any type of radioactive waste management facility away from established nuclear sites generates concern from the local community and creates a negative image and perception of Cumbria, and West Cumbria in particular, from the wider business and visitor communities. The negative associations and perceptions with regards to health and safety implications of this proposal are considered in Section (v) of this assessment. With regards to economic impacts, it is considered that negative perceptions could deter investment from the non-nuclear sector thereby damaging prospects for much needed economic diversification, growth and regeneration, and could also impact negatively on the tourist/visitor economy.

5.75 The potential impact of dispersing radioactive waste management facilities around the County upon the image of the County and in particular the tourist/visitor economy is a matter that has been raised by the objectors to this proposal. A vibrant tourism industry and the ability to attract inward and local investment rely on confidence and a positive image of the area. The negative perceptions of risk associated with LLW dispersal could harm current efforts to promote West Cumbria as a tourist destination and this particular proposal could undermine Copeland Borough Council’s attempts to promote the River Ehen/River Keekle area, which extends from Pica to Cleator Moor and includes the Keekle Head site, as a Tourism Opportunity Site (‘saved’ Policy TSM 1: Visitor Attractions; Copeland Local Plan 2001-2016). It is recognised that tourism in Cumbria largely stops at the Western fringe of the Lake District National Park and that more effort is needed to attract visitors into other areas of West Cumbria.

5.76 It is evident from the objections that have been received that there is considerable opposition to the development of Keekle Head as a LLW disposal facility. Specifically, the disposal of LLW on a site which is remote from existing nuclear sites has led to comment that this would turn Cumbria into the ‘nuclear waste bin of the UK’. It is this perception that disadvantages a community which is already peripheral as indicated above. This proposal could exacerbate this negative perception.

5.77 The NDA’s 2010 LLW Strategy states that ‘…public acceptability [is] central to the development of appropriate waste management plans and their implementation.’ (Page 11; Principles). The negative response to this application from West Cumbrian residents, Cumbrian residents and those further afield, together with the objections expressed by local interest groups, the local Parish Councils and Copeland Borough Council indicate a general lack of acceptance from the local community and wider public, a reaction clearly at odds with this principle.

5.78 The reactions received in relation to this application are not untypical for a proposal of this nature. The facility would provide some economic benefit in terms of job creation, albeit on a limited scale. There remains uncertainty as to whether this proposal, either alone or cumulatively in-combination with existing radioactive waste management facilities in West Cumbria (Sellafield, the LLWR and Lillyhall), would deter investment, prejudice regeneration and development initiatives or undermine efforts to diversify the local economy. Whilst such concerns remain, this is not sufficient to conclude that the application is contrary to Core Strategy Policy 2, as assessed in the light of PPS10 (Paragraph 21) and Generic DC Policy 3(e).

Community Benefits

5.79 As indicated above, the problems that the area’s concentration of nuclear facilities causes, and could continue to cause in the future are the over-reliance on one industry and the effect that the negative perception of that industry has on other investment. Core Strategy Policy 3 states that where large national or regional waste management facilities are proposed, particularly for the nuclear industry, the County Council will expect packages of community benefits to be provided to help offset the impacts of hosting such facilities.

5.80 This is reiterated by ‘saved’ Policies NUC 1 (Radioactive Waste Storage and Disposal) and DEV 8 (Major Development) in the Copeland Local Plan (2001-2016). Policy DEV 8 states that where there is significant adverse social, economic or environmental cost or effect arising directly from a ‘major development’, a planning agreement, commensurate with the scale, nature and location of the development, will be expected to be secured to address this cost or effect. Policy NUC 1 states that proposals for the disposal of radioactive waste will only be supported if they meet these requirements and in addition have involved and secured the support of the local community in the development of the proposal and included measures to meet local community needs and mitigate the adverse effects of the proposal on the social and economic well being of the community.

5.81 The applicant has indicated that a community benefits funding package may be available for suitable local schemes, should planning permission be granted. The applicant has expressed a strong preference for community benefits to be given to the local community close to the site to fund local schemes and would not wish funding to be given to Copeland Borough Council to be distributed across the Borough. The applicant has approached local parish councillors to suggest suitable schemes but states that none have been proposed. The applicant identifies the upgrading of the back lanes of Pica, a scheme proposed by local residents, as being suitable and one they would support should planning permission be granted. The applicant proposes haul road improvements, which would be the subject of legal agreements required by Highways in any event (Section (iv) refers).

5.82 Whilst the applicant has indicated a willingness to consider the provision of community benefits, it is considered that insufficient detail has so far been provided on what exactly this would entail. Given the scale and duration of the proposed facility and the localised impacts of hosting such a facility, a package of benefits would need to be provided to comply with the requirements of Core Strategy Policy 3. An appropriate

and proportionate package could be secured through a Section 106 agreement with the applicant. The applicant has indicated a willingness to enter into a Section 106 for this purpose and this should ensure that the development would not proceed unless and until this package had been agreed and secured. A Section 106 has not being pursued on the basis that it is considered that there is no need for this facility.

(iv) The Impacts of Traffic and Transportation

5.83 CMWDF Core Strategy Policy 1 states that proposals for waste management developments should demonstrate that their location will minimise, as far as practicable the ‘waste road miles’ involved in managing the waste unless other environmental/sustainability considerations override this aim. This general approach is reiterated in the NPPF (March 2012) which states that developments generating significant movement should preferably be located where the need to travel will be minimised and the use of sustainable transport modes can be maximised (Paragraph 34). Both the Government’s 2007 Policy and the 2010 Strategy on Low Level Waste emphasise the need to apply the ‘proximity principle’ in determining where the waste disposal facilities should be located in order to enable waste to be disposed of in the nearest appropriate facility. PPS 10 states that waste planning should create a framework in which communities take responsibility for their own waste. In addition, Development Control Policy DC1 states that waste developments should be located where they are well-related to the strategic route network and/or have the potential for rail or sea transport and sustainable travel to work. Policy EM 12 of the North West RSS reiterates both of these policy principles.

5.84 There is little doubt that in terms of the potential to minimise waste road miles, the disposal of LLW at the existing nuclear sites of Sellafield and/or the LLWR would be preferable to disposal at Keekle Head. This is because the majority of waste needing to be disposed of would arise at Sellafield itself, and the LLWR already benefits from a national rail link and is directly linked by rail to the Sellafield site. Sellafield is also linked to the national rail network. Developing a disposal facility at either of these sites would ensure that the movement of waste by road would be kept to an absolute minimum, thereby minimising the impact upon the local community and highway network.

5.85 By comparison, Keekle Head is 17 miles from Sellafield and all waste would need to be transported to the site by road. The assumption is that this facility would be primarily for the disposal of Sellafield’s wastes because that is where the majority of the UK’s LLW/VLLW is expected to arise. However, the decommissioning wastes will not come on stream at Sellafield to any significant extent until around 2030. In the interim LLW could be brought into the site largely from elsewhere in the UK. This would have a much wider impact upon the local highway network than just the haul route identified in this proposal. As it would not be reasonable or enforceable to control the source of the waste by planning condition, if a planning consent were to be granted, and there was not an immediate local source of LLW for disposal, significant volumes of waste could be transported to the site by road from considerable distances. Under these circumstances, a facility of this magnitude would become a national repository which would enable communities around the country not to take responsibility for their own LLW. This would be contrary to a key planning objective of PPS10 and RSS Policy EM 12.

5.86 A consigner site (that is, where the waste arises) must have an authorisation from the Environment Agency for the transfer of LLW to the disposal site. An authorisation will not be granted unless a Best Practical Environmental Option (BEPO) review of the options for the management of the LLW has taken place. Whilst it is acknowledged that this includes the identification of the nearest appropriate disposal facility, it must be appreciated that the ‘nearest’ facility may actually be some distance away. It is

therefore essential that these facilities are developed as close as possible to the potential waste source at the optimal time when the waste is expected to arise.

5.87 On balance, therefore, it is considered that this proposal at this time is contrary to the sustainability objectives of the NPPF, to Core Strategy Policy 1 and to Development Control Policy 1. To grant planning permission at this time would lead to the creation of a national facility the location of which is unsustainable as it would give rise to unnecessary waste road miles and would not be accessible by rail or sea as an alternative and more sustainable means of transporting the waste.

5.88 Other issues raised include the safety of transporting this type of waste by road. The applicant has assured that prior to shipment at the source site, the wastes would be packaged in sealed bulk bags or drums and placed inside re-usable ISO containers. The transportation by road of all hazardous materials including radioactive waste has to comply with the European Agreement concerning the International Carriage of Dangerous Goods (ADR) 2011 and the Carriage of Dangerous Goods Regulations 2009, regulated by the Department for Transport. These require the material to be transported in approved sealed containers which are designed and tested to ensure no leakage during transit. In terms of road haulage, Government Policy states that the regulations provided a safe environment for the transportation of LLW and the 2010 Strategy advises that there is a ‘relatively low risk presented by the transport of LLW’. The safety of transporting LLW is therefore not considered to be a matter of concern.

5.89 The traffic impact assessment and road condition survey presented in the Environmental Statement accompanying this application estimates that this development would, when operational, lead to an increase in traffic of 0.6% on the A595, 2.7% on the B5306 part of the haul route, 15.5% on the C4012, and 18.8% on the C4006 section of the proposed haul route. This is the same route that was used when the site was an operational opencast coal site. During the peak hour in the morning, it is estimated that this proposal would increase traffic levels by 54% on the small section of the C4006. The assessment is based on a worst case scenario where the usual daily vehicle movements associated with waste deliveries and staff movements occur alongside deliveries of packing material, mail delivery and repair vehicle movements. This equates to 60 vehicle movements per day (30 in/30 out) in total, 34 (17 in/17 out) of which would be light and 26 (13 in/13 out) of which would be heavy vehicles.

5.90 The Environmental Statement concludes that the increase in traffic that would be experienced on the haul road as a result of this development would not have a significant impact on any of the receptors either on or adjacent to the haul road in terms of noise, dust, vibration, air quality or visually. Similarly, a road safety assessment of the existing road safety records and the anticipated increase in traffic concludes that it would be unlikely for the proposal to have a significant impact on the safety of users of the local highway network.

5.91 A Road Condition Survey examined the condition of the C4012 section of the haul route and rated the majority of its length as ‘poor’. It concluded that there appeared to be no significant signs of distress or failure to the underlying road construction, but that resurfacing operations would be required to extend the serviceable life of the road.

5.92 The applicant has proposed a number of measures to mitigate the impacts of the development on the local highway network. These include new signs on either side of the site junction with the C4006 to warn approaching vehicles of the junction; contributing to the County Council’s scheme to extend the 40 mph zone from the B5306 to include the section of the C4012 past Distington Hall Crematorium; the provision of wheel washing facilities during the ‘enabling restoration’ and construction phases of the development, and contributing to the long term maintenance of the C4012 section of the haul route, acknowledging that the development would lead to an increase in HGV traffic along this route.

5.93 The applicant states that the HGV movements associated with the development would be restricted to the proposed haul route (the haulage route used when the site was operational for opencast coal extraction) to ensure that no heavy vehicles would pass through the villages of Pica and Gilgarran. The applicant further states that with the completion of the Distington Bypass this route has changed slightly and that as a result HGV traffic arriving and departing the site would not pass through the settlements of Distington, Common End and Howgate, unlike the former opencast mine traffic. There would be no means of securing adherence to the haul route through a planning permission other than by a condition referring to approved documents that would list the plan referring to the route. To attempt to secure by legal agreement would be inappropriate because the applicant would not necessarily be in control of the waste consigners. The Highway Authority has advised, however, that there would be limited opportunity for HGVs to enter or leave the site via any alternative route due to the general unsuitability (width, gradient, configuration) of the local roads to accommodate HGV traffic. No condition or legal agreement would therefore be required to control HGV routing.

5.94 No concerns have been received by the Highways Agency and the Highway Authority would have no objections to the development provided that the applicant enters into a Section 106 or other agreement to secure financial contributions for the long term maintenance of the haul road and an extension to the 40mph zone by the Crematorium. The applicant would be willing to make these contributions. It is also considered that such contributions would comply with Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 in that they would be necessary to make the development acceptable; directly related to the development, and fairly and reasonably related in scale and kind. Planning conditions could also be attached to secure the provision of wheel washing facilities during the enabling restoration and construction phases and to limit the number of HGVs received at the site per day, in order to control the impacts of traffic during busy periods.

5.95 Cumbria County Council’s Rights of Way Officer welcomes the proposal to formally divert the public footpath around the north western edge of the site. The footpath is currently obstructed, so the proposed development would resolve the situation.

5.96 It is considered that any potentially negative impacts upon highway safety and fabric, the convenience of other road and on the amenity of the local community could be mitigated by legal agreements and planning conditions as outlined above. It is considered, however, that the proposal fails to comply with this policy on overriding matters of principle relating to the timing of the development, its location and the fact that it would not minimise waste road miles or be accessible by rail or the sea as alternative and more sustainable means of transporting the waste.

(v) The Health and Safety of the Local Community: actual harm and perceived harm

5.97 There have been several objections to the proposal relating to the impacts on the health and safety of the local community, particularly with respect to the potential effects of radiation either during the operation of the site or at some point in the future. Paragraph 30 of PPS 10: Planning for Sustainable Waste Management (March 2011) states that:

‘Modern, appropriately located, well-run and well-regulated, waste management facilities operated in line with current pollution control techniques and standards should pose little risk to human health. The detailed consideration of a waste management process and the implications, if any, for human health is the responsibility of the pollution control authorities. However, planning operates in the public interest to ensure that the location of the proposed development is acceptable and health can be material to such decisions.’

5.98 Representees have commented that an independent health impact assessment and a risk assessment for the proposed development have not been carried out. Both a health impact assessment and a preliminary radiological risk assessment have been undertaken by consultants on behalf of the applicant and submitted as part of the Environmental Statement accompanying this application.

5.99 The Health Impact Assessment (HIA) has considered the impacts of the development in relation to the main concerns raised by key stakeholders who participated in workshop sessions to inform the scope of the assessment. The two main issues of concern were the potential for groundwater and surface water to become contaminated, and the impacts of increased traffic on the local road network. Other issues included the effects of radiation, air, noise and light pollution, stress, employment and the effects on the local economy. The general conclusion is that provided the development is carried out in accordance with the proposed scheme including the mitigation measures proposed by the application and recommended in the HIA, there is no evidence to suggest that negative health impacts would occur. The HIA further concludes that the development could also bring potential health benefits to the local community by, for example, providing increased employment opportunities.

5.100 The issues addressed in the HIA are considered in more detail in other sections of this planning assessment. Concern over radiation and its potential effects underpins all of the issues raised. The preliminary radiological risk assessment was carried out as part of the Outline Environmental Safety Case, which was also submitted in the Environmental Statement. The risk assessment concludes that this site has the capacity to dispose of around one million cubic metres of LLW/VLLW; that this could be achieved without leading to an individual radiological dose of more than 0.02 milliSieverts per year (mSv/y) to any worker or member of the public during the operational period and post-closure, and that the radiological environmental and safety implications of the development would therefore be negligible.

5.101 Exposure to radiation can damage tissues in the body and increase the risk of cancer; the greater the exposure, the greater the risk. The radiation dose, measured in milliSieverts, measures the potential harm done to a person through exposure to radiation. To provide some context to understanding the significance of the predicted dose level, the average radiation dose to individuals in the UK from natural sources is 2.2 mSv/y and this can range from 1.6 mSv/y in some parts of the country to 8 mSv/y in parts of Cornwall where radon gas levels are highest. Medical exposure, such as X-ray examination, add on average 0.4 mSv/y, and the average exposure to all sources of radiation in the UK is 2.6 mSv/y. Radiation doses to people living or

working near nuclear sites range from 0.001 mSv/y up to 0.2 mSv/y. The legal limit for members of the public from man-made radiation in the UK is 1 mSv/y. The applicant states that the dose levels predicted to arise from this development for any receptor would be the equivalent to the dose that may be incurred by an individual during a typical four hour flight. Comparatively, the dose level anticipated would be very low and significantly lower than the legal limit.

5.102 The applicant has provided further clarification of the activity levels of the waste that would be disposed of at the site and states that the proposed facility has been designed on the basis of only accepting LLW with a half life of around 30 years or less. As a result, that applicant anticipates that within 30 years of waste placement, at least half of the radioactivity would have decayed away, and within 100 years of site closure the inventory remaining in the site would have reduced to less than 20% of the total present at the time of closure. Following normal radioactive risk modelling principles, it is anticipated that all of the radioactivity would have decayed away within 300 years.

5.103 Whilst the Health Protection Agency (HPA) and Cumbria NHS have concerns about the adequacy of some elements of the HIA, the Centre for Radiation, Chemical and Environmental Hazards division of the HPA considers that, provided the site complies with all of the regulatory requirements, there would be no implications for health associated with this application in terms of the potential radiation effects. The HPA’s radiation division undertakes research to advance knowledge about protection from the risks of radiation and provides advice to Primary Care Trusts.

5.104 The Environment Agency is also satisfied with the updated risk assessment as it currently stands, but points out that their views cannot be conclusive until the application for the Environmental Permit has been submitted and assessed. It is understood by the applicant that the methodology used to undertake the risk assessment to date is intended as a high level screening tool to exclude sites which are unsuitable for this type of development. A full Environmental Safety Case, including a more detailed and rigorous radiological risk assessment would be submitted as part of the Environmental Permit application, should planning permission be granted. The HIA would also be further developed in parallel with the Permit application.

5.105 The application would therefore be subject to far greater scrutiny by the Environment Agency as the pollution control authority at the permitting stage. The Environment Agency would not issue a Permit for the operation of this site unless it was satisfied that the development could be undertaken without risk to human health and the environment, both during the operation of the site and post-closure. As well as undertaking routine monitoring during site operations, the Permit would require a long term management programme to be put in place for as long as the Environment Agency considered necessary to prevent pollution to of the environment or harm to health. There would be no time limit set for this and it could extend for a considerable number of years post-closure. PPS10 advises that planning authorities should make decisions on the assumption that the relevant pollution control regime will be properly applied and enforced. This is reiterated by the NPPF which advises that Local Planning Authorities should assume that pollution control regimes will operate effectively (Paragraph 122).

5.106 To further place the above estimated dose levels in context, the Environment Agency will not permit any disposals unless it is satisfied that public radiation exposures are below a dose constraint of 0.3 mSv/y, and in most cases it would expect them to be no greater than 0.02 mSv/y. The HPA and NHS Cumbria as the Primary Care Trust are consultees in the permitting process and so would have a further opportunity to examine the detailed submissions required by this process. Finally, under the latest

tier of legislation, the Environment Agency would not issue a Permit until a positive decision had been made against a submission to the European Commission under Article 37 of the Euratom Treaty (paragraph 5.19 refers).

5.107 The actual risk and the objective perception of risk or harm to human health are material considerations as far as this application is concerned. No objections have been received or concerns raised by the HPA, NHS Cumbria and the Environment Agency, those with a responsibility to ensure the protection of health in the local community. The application would be further scrutinised at the Permitting stage should planning permission be granted, and a Permit would not be issued if any unacceptable risk came to light. National Government is also clearly satisfied that LLW/VLLW can be safely managed through landfill in its 2007 Policy for the Long Term Management of Radioactive Waste. The comparative dose levels indicate that the predicted levels associated with this development would be negligible. The objective evidence, therefore, is that the proposed development would not give rise to an unacceptable health risk. It is therefore considered that any perceptions of harm relating to this proposal would not be regarded as being based on objective grounds and accordingly could not be justified as a reason for refusal of this application.

(vi) Impacts on Residential Amenity

5.108 This considers the potential impacts of noise and vibration upon residential amenity and the possible adverse effects on air quality for local residents.

5.109 CMWDF Development Control Policy 2 states that waste proposals must, where appropriate, demonstrate that noise and vibration levels would be within acceptable limits; that there will be no significant degradation of air quality from dust or emissions, and that in assessing these impacts considerations will include the proximity of sensitive receptors.

Noise and Vibration

5.110 A noise impact assessment has been undertaken by the applicant and presented in the Environmental Statement. The assessment established a background noise level of around 32 dB, which is what would be expected in a quiet rural area of this nature. It examined the impact of the proposals during the ‘enabling’ restoration, construction and operational phases of the development upon the nearest noise sensitive properties adjacent to the site – Wilson Park Farm, Studfold, Keekle Head Farm, Midtown Farm and Oatlands Farm (paragraph 2.3 refers). It predicts that during the ‘enabling’ restoration phase, the noise levels attributable to the operations would typically remain at or below 55 dB LAeq at these properties, but that Studfold Farm, Midtown Farm and Keekle Head Farm would experience between 60 and 69 dB LAeq during soils placement activities.

5.111 Similarly, during the construction phase, it is anticipated that noise levels would typically not exceed 55 dB LAeq, with the exception of Keekle Head Farm, which would experience up to 62 dB LAeq during the movement of soils. It concludes that operating the site in accordance with best available techniques, such as regularly maintaining equipment, fitting silencers and acoustic hoods where practicable, and restricting construction hours to non-sensitive times would result in a neutral to minor adverse impact upon the main key residential receptors during this period of the site’s development, amounting to around 5 years.

5.112 The noise impact assessment predicts that during the operational phase of around 50 years, none of the noise sensitive properties would experience noise levels exceeding 42 dB LAeq. This prediction assumes that the proposed mitigation measures, such as the construction of screening bunds on the eastern side of the waste reception building, around the waste containment area and routing all HGVs and mobile plant to minimise the need for reversing alarms, would be implemented. The applicant also proposes noise monitoring during this and the ‘enabling’ restoration and construction phases and the introduction of a site liaison committee which would deal with residents’ complaints or concerns.

5.113 The guidance and advice relating to minerals development provided in the Technical Guidance to the National Planning Policy Framework (March 2012) is considered relevant to this proposal particularly during the enabling restoration and construction phases of the development. This document advises that noise sensitive properties should experience a maximum of 55dB LAeq and that the aim should be to establish a noise limit that does not exceed the background noise level by more than 10dB(A). It also considers that it would be reasonable to permit a maximum of 70dB LAeq for particularly noisy but short term, exceptional and temporary operations, such as the movement of soils and the construction of screening mounds.

5.114 The noise levels anticipated by the applicant during the initial phases and once the site becomes operational are consistent with advisory limits. As suggested by Copeland Borough Council’s Environmental Health Officer, planning conditions could be secured to require these limits to be adhered to and not exceeded. Planning conditions could also require that noise levels are regularly monitored and for any exceedencies to be investigated and further mitigation measures implemented if deemed necessary. It is therefore considered that the site could be developed and operated within noise limits that are considered to be acceptable by the Technical Guidance to the NPPF and would comply with the requirements of DC Policy 2.

5.115 In terms of the potential effects of vibration, the applicant concludes that the levels likely to be generated from the enabling restoration, construction or site operations would be so low that they would not be perceptible by local receptors around the site. It is considered that the vibration levels anticipated by the proposed development would also be acceptable and in compliance with DC Policy 2.

Air Quality

5.116 The applicant has assessed the potential impacts of this development on air quality in terms of emissions from plant and construction vehicles (nitrogen, nitrogen dioxide particulate matter less than 10 micrometres in diameter (PM10 levels)) and from fugitive dust arising from site operations during the enabling restoration, construction and operational phases of the development. Such emissions have the potential to result in nuisance or even adverse health effects for any affected receptors.

5.117 Using modelling techniques the applicant has predicted that receptors adjacent to the site and along the haul route would only experience a slight increase in emissions from vehicles during the restoration and construction phases and even less significant increases during the operational phase, compared with the existing situation, and that this would not exceed the national air quality standards established for the protection of human health. The applicant would employ standard techniques for minimising vehicle emissions, such as maintaining vehicles to ensure that engines are operating efficiently and switching off plant engines when the vehicle is idle.

5.118 The applicant acknowledges that many of the activities on site, particularly during the restoration and construction phases, could generate dust, and predicts that, because of the prevailing wind direction, the receptors most likely to be affected would be Keekle Head Farm and the residences at the former Greyhound Public House

(Laneside House and Fellview Cottage). To counter these effects and to protect on site workers, the applicant has proposed a series of standard measures to minimise potential dust nuisance, such as the use of sprinklers and hoses to prevent dust from escaping from the site, the installation of on site wheel wash facilities, sweeping of the haul road in the immediate vicinity of the site, and the seeding and vegetating of soil mounds and newly restored areas as soon as possible after their creation.

5.119 Such emissions could be successfully controlled through the attachment of standard planning conditions, including, as advised by Copeland Borough Council’s Environmental Health Officer, the submission of a dust management plan, which would include a requirement to monitor emissions and to implement further mitigation measures if considered necessary. It is considered that any negative impacts on air quality and the impacts of dust could be adequately controlled through the implementation of the measures proposed, and the attachment of planning conditions prior to the commencement of the enabling restoration phase of the development. In these terms the proposed development would be acceptable and meet the requirements of DC Policy 2.

(vii) The Environmental Impacts

5.120 This section considers the impacts of the proposal with respect to water quality and links to the ecology of the River Ehen, other ecological impacts including those related to Hen Harriers and other protected species and habitats, and landscape and visual impacts. Prior to assessing the proposal in relation to these potential impacts it is necessary to understand the baseline from which the assessment has taken place.

5.121 It was agreed between the applicant and the County Council that the baseline for assessment would be the restoration scheme as stated in the Enforcement Notice as opposed to the unrestored coal site in its current state. This position was taken because the present site owners are legally required to restore the site in accordance with the Enforcement Notice. The Notice requires that the site is restored to replicate the pre-coaling pattern of landuse and ecological habitats, to include the following main elements:

Dewatering the former opencast voids (the western and eastern lagoons) by discharging (under the terms of an existing Discharge Consent issued by the Environment Agency) via the existing settlement lagoons;

Backfilling the former opencast voids using materials on site to achieve the approved restoration contours, in order to replicate as far as possible the original topography and to blend with the adjacent land;

The reinstatement of the River Keekle to its original alignment, to the south of its current alignment.

The recreation of expanses of improved grassland, marshy grassland, acid and semi-improved acid grassland, the predominant pre-coaling habitats;

The introduction of new types of habitat that did not exist on the site prior to coaling, including native broadleaf woodland, heathland, gorse scrub and wader scrapes, in order to increase the biodiversity of the site and enhance its wildlife interest, and

The sowing of one field on the site with cereals and the stubble left over winter to provide food for farmland birds.

5.122 The baseline for assessing the impacts of this development is therefore the restored site as stipulated by the Enforcement Notice and described above. The Local Planning Authority has also to consider the potential adverse impacts of the proposed development on matters protected under the EU Birds or Habitats Directives as transposed by the Conservation of Habitats and Species Regulations 2010. The sections below address these issues, and consider the impacts during all four phases of the proposed development.

(a) The Water Environment and Ecology

5.123 CMWDF Development Control Policy DC 14 (The Water Environment), states that planning permission will only be granted for developments that would have no unacceptable quantitative or qualitative adverse effects on the water environment, including surface waters and groundwater resources. This section considers these matters, including potential impacts on ecology.

5.124 The two main potential effects are :

Changes to water flows in the River Keekle and R Ehen or to local water supplies during de-watering of the two water bodies; or in the following period as water tables re-establish, and

Poor water quality in the River Keekle or River Ehen due to: increased sedimentation from suspended solids; contamination from on site materials; or the proposed waste disposal operation.

Potential Adverse Impacts on the Integrity of the River Ehen SAC and related planning issues

5.125 The Habitat Regulations Assessment (HRA) commissioned by the County Council following the advice from Natural England confirms that the populations of Freshwater Pearl Mussels and Atlantic Salmon in the River Ehen below the confluence are mobile designated features of the SAC/SSSI, are closely linked to the site, and their decline could have a significant impact on the population within the designated site.

5.126 The Assessment of Likely Significant Effect identified 14 risks that required Appropriate Assessment. One risk related to water flows in the enabling and construction phases, seven related to water quality in the enabling phase, three to water quality during construction/operation, and three to water quality in the post closure phase. Many of these resulted from a lack of sufficiently detailed information, and additional information was submitted following a further request to the applicant. The sub-sections below address the main Habitats Regulations related, and planning related, issues.

Impacts from changes in water flows

5.127 The HRA firstly concluded that risk related to increased water flows in the enabling and construction phases could be controlled by the current discharge consent which limits the rate of flow, suspended solids, iron content, and acidity of water discharged during dewatering.

5.128 Although a reduction in flows as groundwater recovers following dewatering is a potential minor risk to the juvenile FWPM, the HRA demonstrated that the flow change in the R Keekle itself, just above the confluence with the R Ehen, would only be 1-2% and due to the relative flow volumes of the two rivers there would not be an adverse impact on the integrity of the SAC.

Suspended solids - Control via conditions and other restrictions

5.129 A particular risk identified in the HRA was that a high section of the northern wall of the western void could collapse into the void during de-watering. This could potentially allow water containing high levels of suspended solids to be discharged into the River Keekle. Further information was submitted to confirm that the bench 8-9m below ground level is sufficiently stable for a supporting buttress to be constructed at the appropriate time. The HRA concluded that a Grampian style condition requiring a detailed method statement would prevent harm to the integrity of the SAC. It would need to be implemented before any instability due to dewatering could develop, i.e. very early in the dewatering.

5.130 Having addressed the possibility above, the HRA then considered other risks from suspended solids or contaminants during dewatering. Pumping would have to stop if the limits of the discharge consent were breached., and whilst this would delay implementation of any planning consent, and the HRA raised questions about how long dewatering would take without changes to (or additional) discharge consents, the current restriction would provide an adequate restriction to prevent adverse impacts

5.131 It should be noted that the current landowner appears to be making little progress in dewatering the site, and existing settlement ponds are sized to accommodate a 1:20 year rainfall event, with no allowance for climate change. Larger settlement ponds may be required to enable dewatering to continue, which would involve amending the restoration plan and potentially increasing land take from the Sandbeds Meadows County Wildlife Site.

5.132 Further increases in suspended solids, are to be expected during the major earth movements of the initial and construction phases, particularly in flood conditions and additional discharge consents will be required for any further water treatment areas and lagoon facilities. However the HRA concluded that no adverse effect on the integrity of the SAC would result as the Environment Agency has confirmed that these would also be subject to HRA.

Risk of adverse impacts from contaminated land

5.133 The HRA identified a risk to the integrity of the SAC from acid mine drainage from contaminated materials currently on site. The Coal Authority and the Environment Agency also expressed concerns regarding the former use of the site for coal extraction and the potential for the land to be contaminated. No detailed contamination reports have been carried out, and the analysis of on site material and water quality in the R Keekle in the ES does not provide enough data to assess the risk. However further information submitted in March 2012 demonstrates that the materials on site have not significantly affected water quality over several years, even though some has already been deposited in the waterlogged voids. The HRA therefore concluded that a Grampian style condition requiring ongoing monitoring during all phases of the development could prevent harm to the SAC.

5.134 A further condition would also be required to ensure that unexpected contamination found during the development of the site would be dealt with appropriately.

Realignment of the River Keekle

5.135 Two of the risks identified in the HRA relate to the detailed design of the restoration of the River Keekle. However, the HRA concluded that the design is technically feasible, and the risk of increased suspended sediment as a result of the creation of a new channel could be controlled by a condition requiring a more detailed hydraulic design to support the indicative calculations presented in the ES.

5.136 The County Council, Natural England and the Environment Agency have considered a draft condition that would be appropriate to protect the River Ehen SAC, and meet other planning considerations, in the light of the HRA findings. This would include hydraulic modelling/sediment transfer modelling to support the indicative calculations in the ES; an appraisal of the fluvial geomorphology; cross and longitudinal sections to include the outer river channel; the flood plain, and adjacent structures or landforms; details of materials and method of construction, including appropriate bed substrate, proposed clay layer, and additional constraints to the river course; and details of channel habitat types. Elements of this condition are also required to prevent flood risk downstream of the development site.

5.137 Following completion of the HRA, including Natural England’s response to it, the Environment Agency have withdrawn their original objection on grounds of lack of information about the restoration of the River Keekle. However, their concerns (paragraph 4.22 refers) remain.

5.138 It is concluded that adverse impacts on integrity of the SAC could be prevented, but the lack of detail on the re-alignment, the centrality of safety criteria, and the long term retention of water treatment facilities and other infrastructure, have other implications which are covered in sections of this report relating to landscape and restoration.

Pollution from radioactive substances via groundwater and the Environmental Permit

5.139 The most significant conclusion of the HRA relates to the risk of pollution from failure of the sub-cell drainage system and damage to waste containment cells during construction/operation and post closure causing leachate leakage. The HRA states that there is insufficient detail within the ES, or subsequent submissions, to enable the consideration of this risk which could lead to potential adverse impacts on Atlantic salmon in the River Keekle/River Ehen and freshwater pearl mussels in the River Ehen through degraded water quality.

5.140 The design of waste cells was amended by raising the base of the lowest landfill cells from 157.6m AOD to 160m AOD, adding a passive groundwater drain at the western end of the western void, and also adding groundwater rebound management drains below the waste containment cells. The latter would act as a sub liner drainage system to protect the stability and integrity of the landfill containment structures during the construction and operational phases. Water would be pumped from the drainage system and discharged into a clay lined pond for storage and sampling before being discharged to the surface water treatment and attenuation pond system. As a result the Environment Agency removed their original objection (paragraph 3.35 refers)

5.141 However some uncertainty remains about final groundwater conditions following the initial restoration, and further groundwater monitoring and modelling is proposed in the ES Addendum as part of the Environmental Permit application. Some amendments to the waste cell and drainage design are therefore possible following any grant of planning consent. The long term future of the sub-cell drainage is unclear, but they could be grouted up at some point in the future. Therefore neither the final design, nor the HRA, on this issue can be concluded.

5.142 The County Council has considered its duties under the Habitats Regulations; the commitment from the Environment Agency to subject such a permit application to HRA, and the requirement not to duplicate the controls available to pollution control regimes. It has also considered its powers to subject any proposal for a material amendment to the scheme to further HRA, and has concluded that this lack of information and certainty would not preclude the granting of planning consent for the current proposal.

Surface water management scheme and flood risk

5.143 The HRA concluded that the ES, together with recently submitted information on onsite rainfall, provide sufficient certainty with regard to the risks of major incidents causing excessive sedimentation and subsequent damage to Fresh Water Pearl Mussel beds as identified in the ES. However a scheme detailing surface water management strategy, and the design and capacity of settlement lagoons, should be provided under condition.

5.144 The site is located in Flood Zone 1, defined by the Environment Agency as areas with the lowest probability of flooding. The FRA also assessed the potential flood risk downstream of the proposal from the re-alignment of the River Keekle as compared to the original course of the river before it was diverted. The Environment Agency has commented that the proposals are acceptable in flood risk terms subject to the further details referred to in paragraph 5.135 above, and the measures in the submitted Surface Water Management Plan being implemented.

Local Water Supplies

5.145 The Environment Agency no longer expresses concerns on this issue having accepted additional evidence from the applicant that:

A borehole drinking water supply at Tutehill Farm is the only private water abstraction within the catchment of the site, and neither the water table nor the quality of the groundwater at Tutehill would be affected by the proposed development.

All other properties within the search area have mains water supply.

The spring water supply for Moorside Parks Farm property does not lie within the same surface or groundwater catchment as the Keekle Head site and would not be at risk of contamination.

(b) Other Ecological Issues

Hen Harrier

5.146 Hen harriers are protected species under UK and European legislation. They are afforded the highest nature conservation status and level of protection by being listed in Schedule 1 of the Wildlife and Countryside Act 1981 (as amended) and in Annex 1 of the EU Wild Birds Directive 2009. As Annex 1 birds, Hen harriers are specifically protected as a features of several Special Protection Areas (SPAs) in the UK. There is evidence of a functional link between the birds wintering in the West Cumbria area (referred to as the West Cumbria Hen Harrier Sensitivity Area) to SPAs because some of birds wintering in the area are known to breed on sites which have been designated for their breeding populations, including the Langholm-Newcastleton Hills SPA. Natural England and the RSPB consider the West Cumbria wintering hen harrier population is sufficient to meet, and therefore equivalent to, the qualification population threshold for SPA status under the European Birds Directive, though there are no plans to designate.

5.147 Article 4.4 of the Birds Directive states that with respect to the protection areas, Member States should ‘…take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds…Outside these protection areas, Member States should also strive to avoid pollution or deterioration of habitats.’

5.148 As the West Cumbria Hen Harrier Sensitivity Area does not actually have SPA status, the latter statement applies.

5.149 Hen harriers are also listed by the Secretary of State as a Species of Principal Importance in England under Section 41 of the Natural Environment and Rural Communities (NERC) Act 2006, because without continued conservation action it is unlikely that the hen harrier population will increase from its currently very low levels in England. The Act requires the compilation of a list of habitats and species which are considered to be of principal importance for the purpose of conserving biodiversity. Conserving includes restoring or enhancing a population or habitat (Section 40 of the NERC Act). This list of Habitats and Species of Principal Importance was referred to in the Draft National Planning Policy Framework (NPPF) (May 2011) and the published NPPF (March 2012) makes general reference stating that local planning policies should ‘…promote the preservation, restoration and re-creation of the priority habitats, ecological networks and the recovery of priority species populations...’ (Paragraph 117).

5.150 Circular 6/2005: Biodiversity and Geological Conservation – Statutory Obligations and their impact within the Planning System (2005) is of relevance to the consideration of hen harrier. Paragraph 98 states that ‘The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat.’ The Circular emphasises the importance of the use of conditions and planning obligations to secure the long term protection of protected species. Paragraph 99 states that where there is a reasonable likelihood of the species being present and affected by a development ‘…any necessary measures to protect the species should be in place, through conditions or obligations, before the permission is granted.’ The NPPF refers to this Circular as continuing to provide detailed guidance on statutory protection for species and habitats and states that planning permission should be refused if significant harm to biodiversity cannot be avoided, mitigated or compensated for.

5.151 RSS Policy DP 7 states that environmental quality should be enhanced by maintaining and enhancing the quality and quantity of biodiversity and habitats. CMWDF Core Strategy Policy 4 states that planning proposals that could affect features of national or international importance must demonstrate that they comply with national policies and that they would enhance that particular asset. The accompanying text states that where significant harm to these interests cannot be prevented or adequately mitigated against, compensation measures will be sought, and that if significant harm cannot be prevented, adequately mitigated against or compensated for, then planning permission will be refused. The hen harrier presence in the vicinity of the site should also be considered in the context of CMWDF Development Control Policy 10, which states that proposals affecting locally important assets or features should demonstrate that the need for and benefits of the development and alternative locations have been considered; that appropriate measures to mitigate any adverse effects have been secured, or where adverse impacts cannot be avoided or mitigated, that appropriate compensatory measures have been identified and secured.

5.152 The HRA into the effects of this proposal on the integrity of the hen harrier population of designated SPAs has concluded that this proposal, either on its own or in-combination with other proposals and projects in the vicinity, would have no likely significant effect on the UK SPA hen harrier population. Following the advice provided by Natural England, the assessment was made assuming the worst case scenario, which would be the loss of the whole hen harrier population from the West Cumbrian roost complex, including from the High Park roost, and the likely impact this would have on the UK SPA network hen harrier population and the UK population as a whole. The HRA concluded that a loss of population at this scale would not exceed a 1% increase in baseline mortality for hen harrier, the threshold considered by Natural England to define likely significant effect.

5.153 Whilst the HRA has concluded that loss of hen harriers from the West Cumbrian roost would not have an adverse impact on the integrity of the hen harrier population of the designated SPAs, any loss of or threat to the population would be wholly unacceptable given the status of hen harrier as a protected species of international, national and local importance. All the legislation and guidance presented above clearly stipulates that development proposals must avoid harm to this species and where harm cannot be prevented or mitigated against then compensation should be provided.

5.154 The application site and High Park adjoining to the south are known to be used by wintering hen harriers for commuting, foraging and roosting purposes and are located within the West Cumbria Hen Harrier Sensitivity Area. High Park is one of a number of active hen harrier winter roosts within this Area which together form a roost complex. Surveys undertaken since 1997 reveal that High Park is a significant roosting site and the ‘Upper Keekle’ part of the Sensitivity Area in which High Park and the Keekle Head site are located is consistently one of the most important winter hen harrier roost complexes in the North of England. Maintaining the integrity of this network of roosts in the Sensitivity Area is believed to be fundamental to safeguarding the roost complex. Whilst a roost has been located within the Keekle Head site itself, the site in its present state functions primarily as a commuting route for harriers flying into High Park to roost and some opportunistic foraging also takes place on the site.

5.155 A hen harrier impact assessment has been undertaken by the applicant. This states that the impacts of this proposal on foraging habitats is of less significance than the impacts on the roosting, but that there is some potential for disturbance of commuting birds approaching or leaving the roost. It identifies disturbance to the High Park roost and the potential for abandonment of the roost as a result as the key potential impact of this development.

5.156 The assessment concludes that the highest risk of impact on the integrity of the High Park site would be during the enabling restoration phase as most of the Keekle site would be disturbed by earth moving operations for a period of around 3 years. The most destructive of these would be the removal of dense rush pasture (9.37ha) along the southern boundary of the site, abutting High Park. These operations would destroy the known roost within the site and, the assessment estimates, could disturb around 30% of the High Park area and ultimately result in roost abandonment for 1-2 years.

5.157 The assessment states that the enabling restoration operations proposed by this application do not differ significantly from the works that would be required to comply with the Enforcement Notice; that is, the agreed baseline. The loss of the rush pasture along the southern boundary would be compensated by the creation of comparable habitats, such as marshy grassland and shallow scrapes, suitable for foraging and commuting hen harriers, in the eastern part of the site. The applicant proposes to mitigate the impacts of the enabling restoration works by ensuring that they are carried out outside the November to March hen harrier ‘wintering’ period, but acknowledges that because of the duration of these works there would be times during this period when noise and disturbance on the Keekle site would be unavoidable.

5.158 The assessment identifies the road and fence construction during the construction phase of the development as being of moderate risk of impact on site integrity which could also result in roost abandonment. To mitigate these impacts the applicant proposes carrying out the most disturbing of these works outside the ‘wintering’ period.

5.159 The assessment concludes that during the 50 year operational phase of the development, the disturbance factors would have low to medium impact and be caused primarily by vehicle movements, the creation of the containment cells and the emplacement of waste within them. It further indicates that the disturbance would not start to take effect until the cell preparation and waste disposal operations move closer to High Park at around 2040, and that by the final phases (2052-2061) up to 15% of the High Park roost area could be disturbed. The applicant proposes mitigation measures during this period to reduce the spatial extent of disturbance during this phase, including minimising vehicle movements to active cells by using slave vehicles; timing cell preparation activity to avoid noisy operations during the winter dawn and dusk period; avoiding the use of reversing warning sounds on vehicles within the site; and measures to minimise the impact of lighting on site.

5.160 In order to address the potential disturbance to High Park during the operational phase post 2040, where the assessment identified the greatest risk of major impact, the applicant states that an area of land in excess of 15ha will be sought, by way of compensation. This would be leased or purchased and manage in the long-term for hen harrier. The assessment states that the land should be located within the West Cumbria Hen Harrier Sensitivity Area; should have an open aspect with no significant disturbance factors; be more than 300m from the landfill boundary, and the topography and habitats present should be able to support a hen harrier roost with appropriate management. The assessment concludes that implementation of the proposed measures would avoid adversely affecting the conservation status of the wintering hen harrier in this location.

5.161 Natural England accepts that this development would pose a low risk to foraging harriers; a low risk to birds commuting between roosting and foraging areas and would result in a minor displacement of flight lines. However, Natural England considers that there would be a net loss of potential foraging habitat compared to the baseline restoration scheme because of the duration the site would remain operational. The baseline scheme and this proposal would provide habitats appropriate for hen harrier, however, once the baseline restoration was achieved it would be left to develop undisturbed. By comparison, there would be continuous disturbance to any habitat created as a result of this proposal throughout the 50 year life span of the operational phase. During this period, even the parts of the site which were not experiencing direct activity would fall within the 300m buffer zone advised by Natural England (and RSPB) to be necessary to protect foraging habitat. The need for off-site compensatory land for foraging may be required to off-set this loss during the operational period, to ensure no loss of foraging habitat.

5.162 With regards to roosting, both Natural England and RSPB disagree with the assumption made in the assessment that a 300m disturbance displacement buffer, without any on site screening, would be adequate to determine the impact distance on roosting hen harriers during the operational phase. The applicant justifies this on the basis that the disturbance will not start to take effect until around 2040 as the cell preparation and waste filling operations move closer to High Park, and that this disturbance distance is in keeping with the approach taken to the provision of compensatory land associated with the Fairfield Wind Farm to the west of this site. Both Natural England and the RSPB dispute these assertions (their detailed responses to this application - Section 4 - refer) and the approach is contrary to their advice that a 300m buffer is appropriate when considering screened roost (or foraging) areas and 600m for roost areas where screening is not proposed. As a consequence, it is considered that the area required to compensate for the disturbance to and potential loss of the High Park roost site could be considerably greater than the proposed minimum of 15ha. A rigorous assessment has not been

made by the applicant to accurately quantify the amount of foraging and roosting habitat that would be compromised or destroyed and so how much of each would be required to properly compensate for its loss.

5.163 The cumulative impacts of this proposal, in-combination with other proposals in the vicinity but also within the West Cumbria Hen Harrier Sensitivity Area have also to be taken into account in assessing this application. This part of West Cumbria is under considerable pressure from the development of wind farms, pressures which are set to increase in the near future. As well as Fairfield Wind Farm, Copeland Borough Council is in the process of considering an application for a 5 large scale wind turbine development at Weddicar, and there are two further wind farm proposals at pre-application stage (with Allerdale Borough Council), all within/on the boundary with the West Cumbria Hen Harrier Sensitivity Area. Because of these pressures, it is essential that each proposal stands alone and is neutral in its effects in an attempt to eliminate any negative impacts on the West Cumbrian hen harrier population. For this reason, the provision of a proportionate amount of compensatory land in an appropriate location and of the required habitat quality must be secured for each planning application.

5.164 It is concluded from the assessments undertaken that the adjacent winter roosting hen harrier population at High Park would be disturbed and potentially displaced by the on site activities resulting from this development, and that the foraging areas on the site itself would be compromised. Despite the concerns raised, Natural England and the RSPB would have no objections to the proposal provided that off-site compensatory land was provided; there would be no net loss of foraging habitat and a package of on-site mitigation measures was adopted (paragraph 4.20 refers).

5.165 The off-site compensatory land could be secured by Section 106. This would need to compensate for negative impacts on roosting habitat and potentially foraging habitat as well. Although the applicant has not at this stage identified or secured through a third party any compensatory land, they have indicated a willingness to do so through a Section 106 agreement. It is considered that this, together with Natural England’s belief that there is sufficient land with the potential to be managed as hen harrier habitat within the West Cumbria Hen Harrier Sensitivity Area, provides sufficient assurance of deliverability. If this land could not be secured for whatever reason, the use of a Section 106 would mean that any planning permission could not be issued or implemented. The on-site mitigatory measures could be secured by a Grampian style planning condition(s) requiring the submission and approval of a detailed mitigation strategy and method statement before the commencement of the enabling restoration works. It is considered that these measures should be sufficient to ensure compliance with the above legislation, guidance and development plan policy with respect to this protected species.

Other Protected Species

Otters

5.166 Otters have the potential to be adversely affected by this proposed development. They are fully protected under Schedule 5 of the Wildlife and Countryside Act 1981 and Schedule 2 of the Conservation of Habitats and Species Regulations 2010, making the otter a European protected species. They are also a listed species under the NERC Act 2006 and as such are a species of principal importance for the purpose of conserving biodiversity. Although not a designated feature of the River Ehen SAC/SSSI, otters are known to be present within it. The advice provided by the NPPF, Circular 6/2005, RSS Policy DP 7, CMWDF Core Strategy Policy 4 and Development Control Policy 10 (Paragraphs 5.149-5.151 refer) are relevant in considering the impacts upon otters.

5.167 The Environmental Statement concludes that otter habitat would be lost by the removal of the on site lagoons, causing displacement which would be irreversible and there would be disturbance to habitat caused by the realignment of the River Keekle, which would be reversible once the River Keekle was realigned and restored. The applicant considers these impacts to be the same as the baseline impacts where dewatering of the lagoons and realignment of the River Keekle would also be required. The applicant considers the impact on otters to be of local significance as the survey undertaken did not confirm the presence of breeding sites or resting places, concluding that the site is used for foraging purposes only.

5.168 Natural England and the County Ecologist consider that the impact upon otters would not just be restricted to the ‘enabling restoration’ phase as implied by the Environmental Statement and that there would also be impacts during the construction and operational phases. The County Ecologist is, however, satisfied that as no breeding or resting places were found on the site, the impacts of the proposal upon otters could be mitigated by the attachment of a Grampian style planning condition to require the provision, prior to the commencement of the enabling restoration works, of a detailed mitigation, monitoring and enhancement plan to cover all phases of the development proposal and to address the loss of habitat and ensure the maintenance of habitat links, and the long term management of the site for the benefit of otters. An informative to any permission could also be attached to draw attention to the fact that a European Protected Species Licence may be required, particularly if the use of the site by otters have changed since the survey was undertaken, and to the potential need for a pre-commencement survey to ascertain if there has been any change. These measures should ensure compliance with legislation, planning guidance and development plan policy as far as otters are concerned.

Bats

5.169 All species of bat are fully protected under Schedule 5 of the Wildlife and Countryside Act 1981 and Schedule 2 of the Conservation of Habitats and Species Regulations 2010, making all species of bat European Protected Species. It is accepted that that there is limited potential for bats on the site, particularly with regards to roosting. The County Ecologist considers that no further provision would be required with regard to bats.

Common lizard and quail

5.170 The ES states that the proposal (and the works required by the Enforcement Notice to achieve the baseline) would impact on areas of the site used by two other protected species – common lizard and quail – and two further protected species – peregrine falcon and barn owl – have utilised the site in the past but would not be affected by the proposals. This is accepted. The common lizard is protected against killing or injury under Schedule 5 of the Wildlife and Countryside Act 1981 and is listed under Section 41 of the NERC Act 2006. Quail is protected by the Wildlife and Countryside Act 1981 under Schedule 1.

5.171 Common lizard would be impacted by the removal of the topsoil bund along the northern boundary of the site, and by the removal of the south-western edge of the main southern spoil heap, where it abuts marshy grassland habitat, so there would be a risk of mortality during the ‘enabling restoration’ phase of the development. Habitat loss would result and the local conservation status could be affected unless adjacent habitats could absorb displaced populations. Proposed mitigation measures include avoidance through timing of works and methods used, retention of some existing habitats, trapping, exclusion and provision of alternative habitats in close proximity. It is accepted that these measures could provide the basis for a Grampian style planning condition requiring the submission of a detailed survey, mitigation, monitoring and

enhancement plan for reptiles to be submitted and agreed prior to the commencement of the enabling restoration works, and that this should ensure compliance with legislation, planning guidance and development plan policy.

5.172 The ES concludes that quail habitat would be lost on the southern edge of the site, but that proposed mitigation measures including avoiding disturbance during the bird breeding season and restoration with higher quality marshy grassland habitat the residual impacts would be neutral to positive. This is accepted.

Priority Species and Habitats

5.173 There are a number of additional priority species listed under Section 41 of the NERC Act 2006 present on the site which would be affected by this proposal, including common toad, brown trout, grasshopper warbler, grayling butterfly, linnet, reed bunting, and two habitats – ponds and rivers. The pond habitats collectively qualify as priority habitats because they support an ‘outstanding assemblage’ of dragonfly species. Most of these species would experience disturbance and displacement through loss of habitat as a result of the enabling restoration works associated with this proposal (and in achieving the baseline).

5.174 The ES concludes that the most significant impacts with the potential to affect conservation status in the wider area or affect site integrity would be on grasshopper warbler, but there would be good potential for avoidance of most of the breeding sites; reed bunting, but retention of key marshy grassland areas and the creation of new areas should provide effective mitigation, and the impacts on ponds and dragonfly populations, where the loss of ponds would also affect the common toad. It is proposed that the most notable pond in the south west part of the site would be retained and new ponds would be created to mitigate the impacts on dragonfly and common toad.

5.175 Natural England considers the impacts to amphibians could be addressed by a planning condition that would require the submission and agreement of a detailed mitigation, monitoring and enhancement strategy prior to the commencement of enabling restoration works on site. The River Keekle is a spawning river for brown trout. Fish surveys of the existing watercourses within the site to inform a fish rescue operation and construction method statements, and a scheme for the protection and enhancement of the brown trout population in the River Keekle would need to be submitted under condition and agreed prior to the diversion of the River Keekle. The detailed design of the realigned River Keekle would therefore need to have a varied plan-form, bank slope, bed profile and substrate, including brown trout spawning habitat in addition to meeting the demanding set of criteria required to avoid adverse impacts on the River Ehen SAC (paragraph 5.136 refers).

5.176 The former opencast workings at the western part of the site also encompass approximately 40% (3.1ha) of the Sandbeds Meadows County Wildlife Site (CWS). The marshy grassland within this area is a specific type known as ‘purple moor-grass and rush pasture’ which is a Habitat of Principal Importance listed in the NERC Act 2006 (also UK Priority Habitat). This type of marshy grassland is uncommon and species-rich.

5.177 The CWS suffered significant loss when the opencast development modified the area within the site including diverting the watercourse through the area. This divided it hydrologically from the remainder of the CWS. It now comprises part of the western lagoon, the smaller water treatment lagoons, part of the spoil mound, marshy grassland and fen. The Enforcement Notice (the baseline) requires restoration as species-rich marshy grassland. However with this proposal the Sandbeds Meadows CWS would not be restored to this type of grassland or to a condition whereby its value could re-develop.

5.178 The applicant states that the proposal is designed to minimise the additional land-take for this facility and concludes that overall the impacts upon the Sandbeds Meadows CWS would be ‘minor negative’. However, new settlement lagoons incorporating the new waste water treatment system, and a new watercourse to drain the perimeter of the containment cells, would be located within the CWS. The eastern part of the CWS site would be incorporated into the containment cells bund and landscaping, and the drain to the River Keekle would be retained in the existing position. The current lagoons would also be removed at some stage, further disturbing the habitat. The proposal would lead to permanent loss of this habitat within the application area.

5.179 The loss of the Sandbeds Meadows UK Priority Habitat would be significant and unacceptable and, as Habitats of Principal Importance, UK Priority Habitat and CWS, are listed as ‘of particular County importance’ in the CMWDF Core Strategy, any loss should be considered under Core Strategy Policy 4 as well as CMWDF DC Policy 10.

5.180 The applicant states that the loss would be mitigated by the re-creation of significant areas of marshy grassland, and that this, together with the proposed new areas of wetland habitat suitable for otters along the restored line of the River Keekle, in an area currently consisting of deep open water of limited ecological value, would constitute enhancement. In addition, the applicant considers the proposal to restore a network of hedgerows, marshy and acid grassland and heathland habitats would achieve a functional ecological network along the River Keekle, which would link to the other CWSs in the vicinity.

5.181 It is considered that the mitigation offered is not adequate, and there is no adequate or realistic compensation offered. Any marshy grassland created in other parts of the site, would not be of the same type of species-rich grassland. Over the whole site, the total amount of marshy grassland that would result from this proposal would be reduced, compared to the baseline. Furthermore given the extent of the habitat loss it is not realistic to consider an improvement in otter habitat (based on a realigned river design which has not yet been submitted) as enhancement.

5.182 The proposal as submitted conflicts with Core Strategy Policy 4 as there would be an unacceptable impact on an asset ‘not protected by national or European legislation’, and the effects cannot be mitigated or compensated for without changes to the proposed scheme. The only remaining exceptions to be considered are whether there is an overriding need for the development, or whether it could be reasonably located on another site which would result in less or no harm. Section (i) has demonstrated that there is no overriding need for this facility at this time. Section (ii) has demonstrated that there are alternative sites at/adjacent to existing nuclear sites where the waste arises or is currently managed that are still to be assessed. These could result in less harm. This proposal is clearly contrary to Core Strategy Policy 4. The proposal is also contrary to DC Policy 10 as it requires proposals for development affecting the features of ‘locally important biodiversity conservation assets’ to demonstrate that the need for the development and alternative options have been considered, and appropriate mitigation and if necessary compensation measures have been identified and secured. It is evident that these requirements have not been adequately addressed.

Non-statutory Designated Sites

5.183 Two other CWSs, High Park and Studfold Willow Patch, lie immediately adjacent to the site. High Park CWS is an extensive area of wet heath, mire, marshy and acid grassland on the higher ground to the south, and Studfold Willow Patch CWS is a small area immediately north of the River Keekle and supports species-rich marshy grassland and willow scrub. These have been considered in terms of indirect impacts. The impact upon High Park in terms of its utilisation by wintering hen

harriers has been considered above. In terms of the impacts upon its designation as a CWS, there would be potential for disturbance to this and to the other CWS to the north from earthmoving activities during the enabling restoration phase, including noise and dust. It is considered that avoidance measures to minimise these potential impacts could be secured by planning conditions.

Proposed Restoration Scheme

5.184 The Enforcement Notice requires the restoration of the site to include extensive marshy grassland (rush habitat) (referred to above), acid grassland and heath, semi-improved acid grassland, woodland and restoration of stream and ditch lines. The scheme provides appropriate habitat for foraging hen harriers and for a range of other ground nesting wading bird species and woodland bird species.

5.185 The proposed scheme incorporates the main elements described above, but there are significant differences which raise concern about how successfully the elements could develop and help support the diversity of habitats that currently utilise the site. For example, the area of marshy grassland would be ‘moved’ from the main slopes of High Park and the central part of the site (as shown in the Enforcement Notice/baseline scheme) to the peripheries of the site in the east and west. As such it would be separated from the natural water flows and springs off High Park and there would be no certainty that it would develop adequately. The marshy and acid grassland and dry heath which dominate the baseline restoration scheme and are appropriate for hen harrier would be replaced by the predominant feature of this application which is the central expanse of conservation grassland proposed to cover the waste containment area. As no target habitats, species and management for the site have been defined, it is not possible to determine the nature conservation value of this considerable area.

5.186 Further information was sought from the applicant to try to remove these and other uncertainties regarding the restoration proposals, however, this was not provided. A series of planning conditions would therefore need to be submitted and agreed prior to the commencement of enabling restoration works taking place on site.

5.187 The submissions would need to take the form of a detailed revised restoration scheme, together with restoration objectives, to include targets for species and habitat presence and creation, and outline management and monitoring measures in order to optimise the value of the site for the benefit of nature conservation. The applicant has proposed to submit by condition a detailed restoration management plan in order to secure the management of the site for the benefit of wildlife over the long operational life of the proposed waste facility. This, together with the detailed restoration scheme would need to include scope for their content to be developed iteratively with relevant statutory and non-statutory consultees and stakeholders.

5.188 It would be preferable for all the species and habitat protection, mitigation and enhancement measures that have been proposed and/or would be the subject of further submissions to be incorporated into an environmental management document. This would be a key reference document for operatives (and the County Council, consultees and other stakeholders) during the enabling restoration, construction and operational phases of the development, and could cover other aspects of the development where mitigation is required. The applicant has stated a willingness to compile such a document, which would be required by planning condition. The applicant also states that there are significant benefits to the proposed restoration scheme over the baseline and these are considered separately (Section (viii) refers).

Conclusion – The Water Environment and Ecology and Other Ecological Issues

5.189 Planning conditions and restrictions applied under other regulatory frameworks could ensure the necessary protection, mitigatory, monitoring and management measures, to conform to the Habitats Regulations, and adverse impacts on water quality could be controlled such that the proposal is not contrary to DC Policy 14.

5.190 The loss of Priority Habitat and a Wildlife Site of County importance conflicts with CMWDF CS Policy 4 and DC Policy DC10. There is no overriding need for the development; there are alternative sites still to be assessed that could result in less harm, and adequate and realistic offsetting compensatory measures have not been secured.

5.191 The proposal would not have a likely significant effect upon the integrity of the UK SPA hen harrier network population. A legal agreement to secure the provision of compensatory land for hen harriers would, however, be required and measures to protect and enhance habitats for certain species are proposed or could be secured by planning conditions. However these would join a wide range of complex and potentially conflicting criteria needing to be controlled through planning conditions. The benefits and enhancements claimed in the ES cannot be thoroughly assessed due to the lack of detail submitted with the application, and the long term nature of the development.

(c) Landscape and Visual Impacts

5.192 This section considers the impacts of the development on the landscape character and visual receptors in the vicinity of the site.

Landscape Character

5.193 The policy context for considering this aspect of the proposal is provided by RSS Policies DP 7, EM 1 and CMWDF Core Strategy Policies 4 and Development Control Policies 12 and 16. DP 7 requires proposals to respect the character and distinctiveness of landscapes and maintain and enhance the tranquillity of the open countryside and rural areas and Policy EM 1 requires proposals to identify, protect, maintain and enhance natural, historic and other distinctive features that characterise the landscape.

5.194 CMWDF Core Strategy Policy 4 reiterates the need to protect, maintain and enhance the features that contribute to the character of the landscape. This is further qualified by DC Policy 12 which states that proposals for development should be compatible with the distinctive characteristics and features of Cumbria’s landscapes and should avoid significant adverse impacts upon the natural and historic landscape; consider the effects on locally distinctive natural and built features, on scale in relation to landscape features, on public access and community value of the landscape, on historic patterns and attributes, and on openness, remoteness and tranquillity. Finally, modern waste facilities should be sensitively sited and of high quality design to minimise their impact on the landscape. DC Policy 16 states proposals must demonstrate that restoration is appropriate for the landscape character and will be completed within a reasonable timescale. DC Policy 3(b) states that the cumulative impacts of minerals and waste proposals will be assessed in the light of other land uses in the area and considerations will include impacts on landscape character.

5.195 The development site is identified in the Cumbria Landscape Character Guidance and Toolkit (CCC March; 2011) as being located within Type 9 Intermediate Moorland and Plateau combining Sub Type 9a Open Moorlands and Sub Type 9d Ridges. The majority of the site lies within sub-type 9a, whilst sub-type 9d abuts the south and eastern parts of the site and includes High Park. Much of the 9d Ridge type area covers the area formerly referred to as a Landscape of County Importance (‘saved’

Policy ENV 6 in the Copeland Local Plan 2001-2016), which indicates its landscape quality. An area of open access land extends from the C4006 to the east of the site up to and including High Park summit and follows the rest of the ridge down to the road at Brownrigg, east of Tutehill. The site sits within the rural landscape of the West Cumbrian coastal plain, bounded by the upland fells of the Lake District to the east and extending to the Cumbrian coast to the west.

5.196 The site in its current state has been formed by extraction of coal in an open cast method. This has resulted in the creation of some distinctive features. These include two large deep voids (now filled with water) where the extraction took place and large incongruous overburden mounds with modified, artificial slopes. One overburden mound is in the eastern part of the site immediately adjacent to Keekle Head Farm and a further is in the southern part of the site and extends in a north westerly direction to create a distinctive ‘finger’ like feature immediately to the north of Midtown Farm. The area of the site that has been restored is the southern slope comprising dense rush adjacent to High Park. This area is steeper than that required by the Enforcement Notice, the agreed baseline.

5.197 The existing unrestored state of the former mining site does have an adverse impact on the character of the surrounding landscape. The baseline requirements of the Enforcement Notice scheme would by contrast be more compatible with and restore the character, distinctiveness and tranquillity of the open moorland in compliance with RSS policies DP7 and EM1, and CMWDF Development Control Policy 12. Compliance with the Enforcement Notice would also ensure the completion of restoration within a reasonable timescale, as required by Development Control Policy 16.

5.198 The ES assesses the area Sub Type 9a as having low to medium sensitivity to change due to the presence of existing manmade activities such as mining, managed improved pastures with distant views of wind farms. Sub Type 9d is assessed as having medium sensitivity to change due to the presence of the distinct ridgeline topography affording open views of moorland and semi natural landscape.

5.199 It is agreed that adverse impacts of moderate (with respect to impacts on the open moorland landscape sub-type 9a) to moderate to major (with respect to impacts on the ridge type landscape sub-type 9d) significance to the landscape character would be experienced during the enabling restoration phase of the development. This would be due to the major earth moving operations involving large plant and equipment on the site, and would be similar to the impacts that would be experienced during the implementation of the Enforcement Notice to achieve restoration of the site. As with the Enforcement Notice, some beneficial impacts of the site being changed from its unrestored state to a restored state would be experienced, however, the main difference introduced by this proposal would be the creation of the flat rectilinear plateau from which the waste disposal area would be developed. From this stage onwards, the plateau would remain as an artificial engineered feature in the landscape.

5.200 During the construction phase of the development the impacts are assessed against the restored baseline. The ES states again that the magnitude of change from the baseline would be large and of moderate significance with respect to impacts on sub-type 9a and of moderate to major significance with respect to sub-type 9d. It concludes that the effects would be adverse but would be limited to a localised geographical area.

5.201 The changes would be due to the construction of the sizable 15 hectare waste disposal area, and the introduction of built features, including the waste reception and office buildings; associated car park; two formally shaped attenuation ponds and several water treatment ponds; the access road and internal road network, security

fencing and extensive landscape bunds for screening and storage purposes. In total the waste reception building including welfare facilities would be of considerable proportions at approximately 84m long and, for the most part, 49m wide. The waste reception building would have a barrel vaulted roof which would be 11.6m at the highest point and the landscape bund proposed between the building and Wilson Park Farm would be about 6m high. The proposed buildings, car park and mounding are large in scale and volume even compared to the adjacent modern agricultural buildings. The effect of these combined with the engineered platform of the waste disposal area, the formally shaped water bodies, fencing and road network would transform open countryside into an industrialised landscape. It is considered that the impacts would be more than ‘very localised’ as stated in the ES and would be significant, particularly from higher areas such as High Park Open Access Land. Consequently, it is considered that the adverse direct impacts that would be experienced within Sub Types 9a Open Moorlands and 9d Ridges, would be significant compared to the baseline of a restored rural landscape.

5.202 The ES compares the impacts during the operational phase with the baseline and concludes that the magnitude of change would be medium; the significance of the effect would be minor to moderate in respect of sub-type 9a and moderate in respect to sub-type 9d, but that the overall effect would be adverse. During this phase, the main change in the landscape would be the effect of the gradual excavation and filling of the containment cells as the waste disposal operation progresses in a south easterly direction to towards High Park. There would be associated vehicle movements and general activity, but the predominant feature would be the demountable weatherproof enclosure which would cover each cell as it was being filled and move progressively toward High Park. It would occupy an elevated position on top of the waste disposal area throughout the 50 year operational period. This would again be a sizable structure, measuring approximately 175m long and 50m wide with a height of 15m.

5.203 Despite the proposal to maintain all but the cells being filled and stripped in a restored state as conservation grassland throughout the operational period, this would not detract from the flat, rigid, rectilinear appearance of the disposal area which together with the weatherproof canopy would appear incongruous in the landscape. It is also considered that the structure planting proposed along the western and northern edges of the disposal area in mitigation, would follow the rectilinear shape of the disposal area and exaggerate its unnatural form and scale. This would be further emphasised as the vegetated eastern part of the site and the edges around the site generally became more established during the operational phase. The main adverse impacts of the operational development would be due to the size and rectilinear shape of the disposal area and the presence of the weatherproof enclosure, rather than the activities taking place on the site, as suggested in the ES.

5.204 With the Enforcement Notice restoration scheme, the agreed baseline, the former rolling landscape, with the hierarchy of the fields falling down the hillside from the upper moorland of High Park at 247m AOD and incised with river valleys and tributaries forming the headwaters of the River Keekle would be restored. By contrast, the proposed development comprising the buildings and ancillary facilities, the weatherproof enclosure and the waste disposal area, would create an incongruous development that would be predominantly engineered and industrialised in character and altogether occupy 75% of the 70ha site area. The remaining 25% would be more natural but minimal in the context of the entire development to the extent that it would not enable the development to successfully integrate with the surrounding landscape character. It is evident that the capacity required for the facility has determined the footprint, scale and siting of the different elements, rather than this being based on an assessment of the capacity of the landscape to accommodate them. This proposal

does not comply with DC Policy 12 which requires development proposals to consider the scale, siting and compatibility of the development in the landscape to ensure sensitivity and avoid significant adverse impacts.

5.205 It is considered that the large scale structures of the building, the weatherproof enclosure and the waste disposal area would create a fragmented, engineered and industrialised looking development in a predominantly rural area. It should be acknowledged that in the broader context this area has been and is continuing to be the subject of wind farm proposals, one of which is operational and in close proximity to the site. It is considered that the cumulative effects of this proposal in combination with other large scale developments such as wind farms, which introduce significant artificial structures to the landscape, would exacerbate the negative impacts of this proposal on the landscape character. As assessed in the light of Policy DC 3(b), therefore, this proposal is contrary to Policies CS 4 and DC 12 because it would not, in-combination with other land uses in the area, be compatible with or respect, protect, maintain or enhance the character of the surrounding landscape.

5.206 After the 50 year operational period, the proposal would enter the post operational phase. The applicant has indicated (by email, not clearly stated in the ES) that during this time all the built elements would be removed and that this would return the site to a more open character and the disposal area would be contained by the landform and planting. The applicant suggests these details could be agreed via the submission of a pre-commencement planning condition. This is considered unacceptable and detail that should have been made clear prior to determination. The submitted final restoration plans (the ‘Final Restoration Contours’ Figure 4.9A plan and the ‘Proposed Restoration Plan – Post Closure’ Figure 4.28) indicate the retention of many built elements including the waste reception building, screening mounds, roads, attenuation ponds and other ancillary engineered structures. In the absence of more developed final restoration proposals, therefore, it is considered reasonable to compare the submitted plans with the baseline scheme which would restore the open rolling agricultural countryside comparable with the pre-mining landscape.

5.207 The unresolved nature of the final landform/post-operation restoration plans also highlights a main concern that unlike other waste disposal sites where there is scope for shaping the disposal area into a more natural final landform, this proposal maintains a functional need for the disposal area to remain flat and ancillary infrastructure to remain during the post operational period and thereafter. Even if the built structures were removed, there would be no scope for the development to be integrated into the landscape. The long term adverse impact of the waste disposal area would remain permanently as an artificial, elevated plateau, flat, angular, out of scale and incompatible with the rolling character of the surrounding moorland and valley landscape, further emphasised by rectilinear tree planting. The development at the end of the operation would continue to appear inappropriate and an imposition in the landscape, particularly from higher areas such as High Park Open Access Land. The proposal is therefore considered contrary to DC Policy 16 which requires restoration to be appropriate for the landscape character.

5.208 The proposal is also considered contrary to DC Policy 16 because this policy requires site restoration to be completed within a reasonable timescale. The Enforcement Notice, the agreed baseline, requires the site to be restored within around four years. By contrast, as regards these proposals, whilst some areas of the site would be restored during the enabling restoration phase, the site would remain operational for a further 50 year period, and there is no certainty at this time that all buildings would be removed post-operation. Even if they were removed, it would be a considerable length of time before this site could be considered to be finally restored.

5.209 It is considered that this proposal is surplus to requirements in terms of achieving restoration of this site. It would involve restoration of an opencast mine using on-site materials to fill the voids. It would then involve the creation of an elevated, artificial platform to receive VLLW/LLW, which would raise the land levels by an average of 7m across the whole of the 15 hectare disposal area. The site would not be restored for some considerable time and even when finally restored would be incongruous in the landscape due largely to this plateau like structure. This differs from a traditional landfill, where the waste provides a necessary contribution to site restoration by filling the void space. With this application, the voids are not the receptacles for the waste. There is already sufficient on-site material to fill these, as required by the Enforcement Notice.

5.210 In summary, it is considered that the proposal is contrary to RSS Policies DP 7 and EM 1 and CMWDF Core Strategy Policy 4 because it would not respect, protect, maintain or enhance the local landscape character or maintain or enhance its tranquillity. It is also contrary to Development Control Policies 12 and 16 because it would not be compatible with the landscape in terms of its scale, siting and design and the restoration of the site would not be completed within a reasonable timescale.

Visual Impact

5.211 The policy context for considering the potential visual impacts of the proposal is provided by ‘saved’ Cumbria and Lake District Structure Plan (2001-2016) Policy E37, and CMWDF Development Control Policy 12.

5.212 Policy E37 states that development and land use change should be compatible with the distinctive characteristics and features of Cumbria’s landscape types and subtypes. It further requires that proposals are assessed in relation to visual intrusion or impact, as well as a series of landscape related criteria. As well as requiring that development avoids significant adverse impacts on the natural or historic landscape, DC Policy 12 requires that the Guidelines for Landscape and Visual Impact Assessment publication (by the Landscape Institute of Environmental Management and Assessment; Second Edition, 2002) be used to assess proposals and to ensure that development proposals consider the effects on several matters including public access and the community value of the landscape. The policy also requires proposals to ensure high quality design of modern waste facilities to minimise their impact on views from sensitive areas, and to direct developments to less sensitive locations where possible.

5.213 The ES has assessed the visual impacts on 6 residential receptors; the public car park at Pica; High Park Open Access Area; three rights of way; surrounding roads, and views from Dean Moor Stone Circle Scheduled Ancient Monument and Grass Moor summit in the Lake District National Park, at each phase of the development.

Residential Receptors

5.214 The residential receptors on the periphery of the site that have been assessed in the ES comprise Wilson Park Farm, Studfold, Keekle Head Farm, Midtown Farm, Tutehill Farm and Oatlands Farm (refer to paragraph 2.3 for specific locations and distances from the site).

5.215 The ES concludes that during the three year enabling restoration phase of development, five (Keekle Head Farm, Studfold, Midtown Farm, Tutehill Farm and Oatlands) of these six residential receptors would experience major to substantial adverse visual impacts as a consequence of either the restoration works required to achieve the baseline conditions in accordance with the Enforcement Notice or this proposed development. All would experience what is classed in EIA terms as significant adverse visual impacts.

5.216 The ES found that during the two year construction phase of development three receptors (Wilson Park Farm, Tutehill Farm, Oatlands Farm) would experience moderate to major adverse visual effects and Keekle Head Farm and Studfold would experience major adverse impacts. Midtown Farm, in an elevated position to the south-west of the site would continue to experience substantial adverse impacts. This would be due to the close proximity of the construction works associated with the creation of the waste containment area, which would introduce a linear landform that would be discordant with the valley topography and restrict views across the valley from this property. The ES states that activity associated with the construction of the waste reception building would also be evident from this location. All would again experience significant adverse visual impacts as a result of these activities.

5.217 During the 50 year operational phase, the ES assesses that three of the residential receptors (Keekle Head Farm, Studfold, Tutehill Farm) would experience moderate to major adverse visual impacts mainly from vehicle movements delivering waste, occasional construction activity to prepare, fill and complete new cells and the repositioning of the weatherproof enclosure by crane. Midtown Farm would continue to experience major to substantial adverse visual impacts due to its elevated position. Four of the six visual receptors are identified as experiencing significant adverse visual impacts.

5.218 At the post operational stage, the ES concludes that four of the six receptors would experience negligible visual effects due largely to the removal of the built structures and on site activity. It acknowledges, however, that moderate adverse effects and major adverse effects would still be experienced at Tutehill Farm and Midtown Farm, respectively, and that this would be due largely to the presence of the waste containment landform which would remain as an artificial feature in contrast to the natural valley landscape.

5.219 It is considered that the adverse impacts experienced by the receptors would be more extensive than indicated in the ES. This is because the ES has overlooked the fact that there is an additional residential property at Wilson Park Farm on the boundary with the site, the rear of which faces east directly into the site. The property is currently largely screened by conifer tree planting and an on site soil bund. The soil bund would be removed at the start of the development and so reduce screening for the ground level rooms of the property. Receptors would have direct views at close range of the construction compound throughout the enabling restoration and construction phases; would have oblique views of the waste reception building during construction and operation, and would experience adverse visual effects throughout the life of the development due largely to its relatively close proximity to the site access road and associated vehicle movements.

5.220 Similarly, the ES makes no mention of the two properties immediately to the rear of Studfold - Laneside House and Fellview Cottage - the former Greyhound Public House. Unlike Studfold, which is a bungalow, these also have upper floor windows looking south directly towards the site (and the principal façade at Studfold faces south towards the site, not west as states in the ES). Although located slightly further away from the site, these properties would experience similar adverse visual impacts to those experienced at Studfold during the enabling restoration, construction and operational phases of the development. In addition, no mention is made in the ES of the temporary dwelling at Tutehill Farm, which, although at some distance, faces north-east directly towards the site.

5.221 The measures proposed to mitigate the visual impacts of the development comprise the erection of a screening bund to screen the waste reception building from north, east and westward views; a screening bund and planting along the western and

northern boundaries to screen/soften views of the waste containment area from the west and south, and retention of a screening mound and planting to screen the site from Keekle Head Farm. These measures are considered to be fairly crude and unresolved in their current form, may even exaggerate the elements of the proposal they are intended to screen, and therefore do not assist in integrating the development into the surrounding rural landscape, which should be the overall design objective. It may be possible to extend and refine these to attempt to minimise the impacts in an acceptable way for receptors (although this is uncertain because of the lack of mitigation detail presented in the ES), however, because of the large scale nature and incongruous elements of the development, it is considered that this would be difficult to achieve.

5.222 The mitigation measures would amount to the implementation of screen planting and/or bunds most of which, to have any affect, would need to be in close proximity to receptors for the 50 year plus lifetime of the scheme. This may succeed in containing the visual impacts of the development for some receptors, but would create visual barriers which over time would generally restrict or curtail and/or foreshorten views of the valley landscape for the receptors. The potential effects of these measures on some receptors could be oppressive. This would represent a significant and unacceptable change from the Enforcement Notice baseline, which would restore the rural tranquillity of the former open, rolling valley landscape for these receptors, within a timescale of around four years.

5.223 It is also considered that for some receptors, such as Midtown Farm, even containment of the visual effects would not be possible. This is due to the combination of its elevated position, its close proximity to the site, the large scale nature of the development and the introduction of artificial and discordant features into the landscape, and the range of activities that would take place on the site, all of which would be highly visible from this receptor for the duration of the development. The proposed western screening bund and planting may mitigate to some extent. It is also the case that the principal façade of the dwelling faces north-west away from the site, however, oblique views of the site would be gained from rear windows and direct, close range views would be experienced from the curtilage of the property. It is considered that the impacts upon this receptor could not be minimised or mitigated to an acceptable degree. The main residence at Tutehill Farm is similarly orientated, but a temporary dwelling faces towards the site. These receptors are, however, located further from the site boundary in a more elevated position with a wider panorama. As such, the presence of and activities associated with the proposed development would be less dominating, but still impact adversely on these visual receptors.

5.224 It is considered that the significance of the adverse impacts would be greater than anticipated by the applicant. To assist with judgements concerning significance of visual effects, the Guidelines for Landscape and Visual Assessment states that large-scale changes which introduce new, discordant or intrusive elements into view are more likely to be significant, and changes affecting large numbers of people are generally more significant.

5.225 The considerable scale of the main elements of the development and activities during the construction and operational phases would dominate the landscape and be engineered, industrialised and urbanised in appearance. This would be discordant with the surrounding rural landscape; would result in significant changes as compared to the rural and tranquil landscape that would be achieved at the initial ‘enabling’ restoration phase by the baseline restoration scheme, and would affect a greater number of receptors than anticipated in the ES due to the lengthy lifespan of the operations at around 50 years. Several generations could be affected.

5.226 It is evident that the residential receptors in the vicinity of this site would experience significant adverse visual effects well beyond the restoration works that would be required to comply with the Enforcement Notice, the agreed baseline. The measures so far proposed to mitigate these effects are unresolved and because of the large scale nature of the development, mitigation that successfully maintains an open, tranquil, natural and rural aspect for receptors, as would be achieved by the baseline restoration scheme, would be difficult to achieve with this proposal. In conclusion, the adverse impacts on the receptors would not be minimised to the acceptable extent that they would be with the baseline scheme. Views from most receptors would be significantly compromised. The proposal is therefore considered to be contrary to DC Policy 12(e) with respect to its impacts upon the residential receptors.

Pica and Pica Car Park: 175m AOD

5.227 The village of Pica lies about 1km to the west of the site. The orientation of the terraced properties is such that few would have direct views towards the development but some would have oblique views from upper floor windows. The ES has assessed that the clearest views of the site would be from the car park in the village. From this receptor the enabling and construction activities would be visible and once operational, built elements such as the reception building, the weatherproof enclosure and some vehicle activity would also be seen. The ES states that the impacts would be moderate to adverse throughout the development and operation of the site. It is agreed that that the impacts would not be significant due to the fact that the village of Pica is some distance away from the site. However, on leaving the village heading east, the entire site is visible from the road. Pica is therefore the largest community most likely to benefit from the early restoration of this site.

High Park Open Access Land: 247m AOD

5.228 High Park Open Access Land (OAL) is an area of moorland that forms part of a ridge top feature immediately east of the site. OAL is land designated under the Countryside and Rights of Way (CROW) Act 2000 for the public to engage in recreational activities including walking, site seeing, bird watching, climbing and running. The OAL stretches from the C4006 Pica to Dean Cross immediately north of the site to include High Park summit at 247m AOD and the rest of this ridge to the C road at Brownrigg, east of Tutehill. It is the largest area of Open Access Land between the Lake District National Park and the coast and forms an important ridge feature in the rural landscape.

5.229 The designation has recently been extended which enables access from public highways to the north and south and is in close proximity to other locally established walks, including Willimoor Foot Woodland, Walk Mill Community Woodland and an adjacent circular walk at Moresby Parks. High Park ridge, as a landscape focal point, therefore has considerable scope for development as a public route connecting with a wider network of circular walks in the vicinity of this site. There is also a wider potential for this area to develop to attract visitors as Copeland Borough Council is promoting the River Ehen/River Keekle area adjacent to High Park as a Tourism Opportunity Site (‘saved Policy TSM1; paragraph 5.70 refers). There may, however, need to be access restrictions on High Park during the hen harrier wintering roosting period (November to March).

5.230 Its designation as Open Access Land indicates that High Park has ‘community value’ and is a ‘sensitive area’ and so the impacts upon it should be assessed in relation to DC Policy 12(d) and DC Policy 12(e), respectively.

5.231 Clear views of the site are experienced as one descends from the ridge top. There is a wide panorama across Whitehaven and Workington with wind farms also visible. The impact of the development upon this receptor is assessed in the ES as major adverse during the restoration phase, moderate to major adverse during the construction phases, both within the significant category, and moderate adverse for the operational and post operational phases.

5.232 From the elevated position of High Park, receptors would have views of the proposal during its development. Of particular prominence would be the waste containment area which would dominate the foreground views, however the waste reception building and other built ancillary facilities and associated activities would also be clearly visible. Because of the elevated position at High Park and relative proximity to the site, it is considered that any form of mitigation to visually contain the development from this viewpoint would be extremely difficult and probably impossible to achieve. As a result, the development would always appear industrialised, incongruous and discordant from this viewpoint. The activities associated with the development during the construction and operational phases would detract from the tranquility of the rural landscape and be obvious and potentially intrusive from this perspective. These factors could detract from the public’s enjoyment of this designated area and potentially undermine its community value. This would be in contrast to the restoration scheme required to comply with the Enforcement Notice, which would restore the site to the former natural landform with extensive views from the High Park Open Access Land over the peaceful valley landscape.

5.233 Whilst utilisation of High Park Open Access Land may be low at present, the proposed development could affect many more people as there is potential for this area to develop further as a place for informal recreation, as indicated above. There is a need to safeguard the potential of this designation as a community resource to be enjoyed for such recreation. It is considered that this proposal could undermine that potential and so is contrary to DC Policy 12(e), which requires the high quality design of modern waste facilities to minimise their impact on views from sensitive areas. The adverse impacts of this development would be for the life of the operations and could not be mitigated for these receptors.

Rights of Way

5.234 Public footpath 404015 runs north from Wilson Park Farm which is close to the development access point, onto Feather Knott a small knoll which elevates the viewer and allows views across the whole site. The footpath provides connectivity with the community at Gilgarran. The ES assesses that moderate adverse impact would be experienced for users during the restoration phase and then minor to moderate adverse effects during the construction and operational phases. None of these are considered significant in EIA terms.

5.235 Footpath users would be in close proximity to the access to the site and the haul route which would adversely affect the amenity value of the footpath. Although not proposed, mitigation in the form of a segregated footway link between this route and the newly diverted route (Public Footpath 404018) could enhance visual legibility for both routes by providing connectivity and reducing conflict with vehicle traffic.

5.236 Public footpaths 401014 and 404018 are the same footpath (numbered differently in adjoining parishes) and form the right of way that crossed the north western section of the site prior to its use as an opencast coal site. Its current status is that it is obstructed. The Enforcement Notice restoration scheme restores the right of way to its original route whilst the development proposes to establish a diverted route, after the completion of the construction phase, along the western boundary of the site.

5.237 The Enforcement Notice restoration scheme would restore the amenity value of the route to its original rural state as part of a link route between Gilgarran (using FP 404015) and the road leading to Willimoor Foot woodland, then the main public access to High Park Open Access area or the footpath route to Arlecdon.

5.238 The proposed diverted route, when assessed against the restoration baseline, would maintain connectivity on a functional level. However, it would pass closer to Wilson Park Farm and immediately behind a 6 metre high screening bund (higher when planted) west of the reception building, cross the proposed new bridge on the River Keekle and pass beside the six rectilinear water treatment lagoons before linking with the original footpath outside the development site boundary. The amenity value for the footpath users would be reduced as the bund could make the experience quite oppressive compared the open and rural outlook that would be experienced if the site were to be restored in accordance with the Enforcement Notice. The mitigating factor here is that the section of footpath that passes through the site is relatively short compared to the local network around the site. Whilst it is agreed that the impacts would be moderately adverse for users of this section, overall the impacts are not considered significant in EIA terms.

Roads: C4006 Pica to Dean Cross and C4012 to Gilgarran

5.239 It is from these roads that most of the general public would experience the visual impact of the proposal with views across the site as it develops.

5.240 The site is accessed off the Pica to Dean Cross road which runs east to west immediately north of the site. The development would be visible from this road by drivers looking southwards as they approach and pass the site from both directions. The C4012 joins the C4006 to the north of the site at Wilson Park Farm. Approaching this junction, views of the development would be partially screened by Friar Bank Wood.

5.241 The restoration of the coal mining site to an agricultural landscape as required by the Enforcement Notice would broadly restore the original views of small scale fields defined by stone walls sloping downwards from the open moorland of High Park ridge top and incised by small tributaries leading to the River Keekle with some pockets of woodland at the valley bottom.

5.242 This proposal would reshape overburden mounds and create a large scale development dominated by the new reception building and the engineered waste disposal area which would create an industrialised rather than rural landscape. The development would create a simplified and bland landscape of large scale elements and would not restore the interest and intensity of landscape features present prior to the open cast mining. The use of large scale bunds and blocks of woodland planting to attempt to screen the development demonstrates the difficulty of integrating the proposal into the surrounding landscape. In mitigation, the views from users of the C4006 road would be fleeting or temporary at worst and from the C4012 would also be partially screened by Friar Bank Wood. As such it agreed that the impacts would be minor to moderately adverse during the development and operation of the site, negligible thereafter, for receptors on the C4006, and minor to slightly adverse effects would be experienced throughout the development by receptors on the C4012. This is not significant in EIA terms.

Dean Moor Stone Circle Scheduled Ancient Monument: 200m AOD

5.243 Dean Moor is a large stone circle, made up of small stones and bisected by a later stone field boundary wall, located 400m north of the site boundary. The ES states that due to the elevated position receptors here would have panoramic views in all directions, including the Keekle Head site to the south. Activities throughout the site’s

development would therefore be visible. The ES assesses that the impacts would be of moderate to major significance during the restoration phase and to moderately adverse during the construction and operational phases. In mitigation, this feature is on agricultural land not open to the public and so will be infrequently visited.

Grassmoor Summit, Lake District National Park: 852m AOD

5.244 The ES assesses the impacts on this popular vantage point, located 13.5km to the east of the site boundary in the National Park as moderate adverse during the enabling restoration phase phases and negligible thereafter. It is considered that only in very clear conditions would brightly coloured plant be discernable during the restoration and possibly during the construction phases. The obvious mitigating factors are the long distance from this receptor to the development and the fact that the Keekle Head site would form a small part of a very broad panoramic view from the summit. The ES considers that the roof of weatherproof enclosure may be visible from the summit on clear days. It is agreed that the impacts would not be significant in EIA terms.

5.245 In summary, the majority of the residential receptors in the immediate vicinity of the site would experience adverse visual impacts throughout all stages of the proposed development. It is considered that the impacts upon these and upon the potential receptors from High Park Open Access Land would be sufficiently adverse to be contrary to DC Policy 12(e) which requires that proposals minimise their impacts on views from sensitive areas. It is considered that a combination of factors such as the elevated positions and relative proximity of these receptors, together with the scale, siting, incongruity and duration of the proposed development means that the impacts upon these receptors could not be minimised or mitigated to an acceptable degree.

Conclusion – Landscape Character and Visual Impact

5.246 In conclusion, the combined adverse impacts of the proposed development on both the landscape character and visual receptors, as described, is unacceptable and contrary to the requirements of RSS Policies DP 7, EM 1, CMWDF Core Strategy Policy 4 and Development Control Policies 12 and 16 for the detailed reasons provided. The restoration of the former mining site to an open natural valley landscape, as required by the Enforcement Notice, the agreed baseline, would, by comparison, comply with these policy requirements in achieving the restoration of a former mining site.

(viii) Perceived Benefits of the Proposal

5.247 The main benefit of this proposal, as perceived by the applicant, would be that a former opencast coal site, which has remained in a derelict state for several years, would be restored, with a new restoration scheme and clear liability and responsibility for completion of the restoration. This is presented as a significant benefit, stating that “significant doubt remains about whether a legal or financial mechanism exists to achieve the restoration in the absence of the Endecom proposal”, and that restoration in the current situation is “at best unlikely and at worst impossible”.

5.248 Partial restoration of the site early in the development process is acknowledged as a benefit, however the County Council does not accept the contention that the proposal represents the only possible vehicle for site restoration, or necessarily the best mechanism to address the current injury to amenity for local residents.

5.249 Firstly the County Council suspended further action in relation to the Enforcement Notice pending the determination of this planning application. When the application has been determined, the County Council will reconsider the enforcement action. Approval and commencement of development could precipitate the withdrawal of the Enforcement Notice. Following a refusal the County Council could either pursue

available remedies through the existing notice, or withdraw and serve an alternative Enforcement Notice with a reduced restoration scheme that could achieve an acceptable restoration of the site.

5.250 The County Council has commissioned a consultant to develop a number of alternative ‘light-touch’ restoration schemes that would retain the water bodies, thus minimising earth movements, cost, and disturbance to all nature conservation interests on or associated with the site, and provide the opportunity to retain, enhance and diversify various habitats. Consideration of the alternatives is not relevant in advance of the determination of this application other than to point out that the Keekle Head application should not be considered the only potential solution.

5.251 Secondly, the plans showing the restoration of the site following cessation of waste disposal (Figure 4.9A the ‘Final Restoration Contours’ plan and Figure 4.28 the ‘Proposed Restoration Plan – Post Closure’) show retention of the waste reception building, the water treatment plant, the groundwater collection pond and drainage collection channel, and all the landforms associated with settlement ponds and bunding around the waste reception building. Even this level of restoration, which retains a number of built and engineered structures, would not be achieved for at least 50 years.

5.252 Thirdly, an indication of the final landform following the removal of the built structures and the timing of any further restoration following cessation of monitoring and water treatment have not been provided. The applicant anticipates the former to be when the capping and restoration of the waste containment area is complete and the ES suggests the latter could be a hundred years after cessation of waste inputs. The applicant has not, contrary to the indications in the ES, developed plans for the final restoration of the site during the process of consideration of the application but has insisted that both the final restoration scheme including final landform and the final design and construction methods of the River Keekle re-alignment, should be controlled by a pre-commencement planning condition. Because of the uncertainties at this stage, any claims that this proposal would be a ‘significant benefit’ should be based on the engineered landforms as shown in the plans referred to above, compared with the baseline provided by the Enforcement Notice, which would restore the site to a natural landscape.

5.253 It is acknowledged that the proposed development would create some job opportunities which would be welcomed, although the number of jobs created would be fairly minimal considering the scale and duration of the proposed development (Section (iii) refers).

5.254 It is considered that the perceived benefits of this proposed development are modest and not sufficient to outweigh its adverse impacts. There is no need for a facility of this type at this time and alternative potential solutions, including on/adjacent to existing nuclear sites, have not been fully considered. The proposal is therefore contrary to ‘saved’ Structure Plan Policy ST4 (Major development proposals).

Human Rights Act 1998

5.255 It is considered that the impact on the applicant’s rights under the Human Rights Act 1998, if this application were to be refused, in terms of Schedule I thereof, Part II, the First Protocol, Article 1, the Protection of Property, are proportionate to the public interest involved and comply with the right of the State (here the County Council as local planning authority) to control the use of property, in accordance with the general interest, as set out in that Article.

CONCLUSION

5.256 The fundamental issue to consider is whether there is a need for this proposed facility and if so whether this is sufficient to outweigh any negative social, economic and environmental impacts of the development, taking alternatives into account.

5.257 This application was proposed to address the need, identified in National policy, to divert the lower activity range of LLW from the Low Level Waste Repository (LLWR) near Drigg. This is necessary to ensure that this valuable resource is used only for the residual higher activity LLW that requires highly engineered containment and cannot be treated elsewhere. The planning assessment has demonstrated that there is no need for a further LLW disposal facility in Cumbria or elsewhere in the UK at least until around 2030. Arisings from Sellafield, which will generate 75% of all predicted lower end LLW arisings in the UK, are not forecast to commence in earnest until after 2030.

5.258 It is proposed that the Keekle Head facility would be for the disposal of LLW with an activity level of up to 500Bq/g. The latest assessments undertaken by the LLWR Ltd indicate that the LLWR would provide sufficient capacity to enable the disposal of LLW above 200Bq/g up until 2130, provided the space is managed wisely and further planning permissions and Environmental Permits are granted. As for LLW with an activity level below 200Bq/g, it is the case that there is currently a large over capacity in the market for disposing of this lower end LLW until 2015; that further planning permissions at the existing facilities at Kings Cliffe, Lillyhall and Clifton Marsh are required to meet the shortfall post 2015, and that if all are granted, these would provide approximately four times the capacity required until around 2026 and sufficient capacity between 2026 and 2030. This demonstrates there is no requirement for the waste capacity proposed by this facility.

5.259 In addition to the potential capacity at existing sites, a further potential disposal option is the use of VLLW as part of the capping material used to cover the vaults at Drigg. This could accommodate up to half of the post 2015 Very Low Level Waste (VLLW) arisings, until around 2030. This proposal forms part of the current planning application received by the County Council to extend the vaults at the LLWR, and subject to the Environment Agency’s approval of the Environmental Safety Case and planning permission being granted, cap construction could commence in 2014/15.

5.260 There is also further potential for reducing the volume of arisings that would need to be disposed of to this proposed facility or to landfill, since the Environment Agency has recently re-categorised radioactive waste in connection with the Environmental Permitting Regulations. This excludes exempt waste and the newly identified ‘out of scope’ from the permitting process which means that there may in the future be opportunities for dealing with these categories of waste other than disposal.

5.261 The need for the proposed facility has not been identified in the RSS or in CMWDF Core Strategy. Notwithstanding this and in the absence of policies in the CWMDF relating to VLLW, the evidence presented indicates that there is no need for the Keekle Head facility either in the immediate or medium term as there is excess capacity at existing sites, subject to planning permissions being granted, to address the need until around 2030. This approach accords with the principles of PPS 10, Paragraph 11 and would enable the diversion of the lower end LLW from the LLWR in the immediate to medium term at least, in accordance with the Government’s 2007 Policy and the Nuclear Decommissioning Authority’s (NDA) 2010 Strategy.

5.262 Although continuing efforts are being made by the NDA and LLWR Ltd to improve the accuracy of LLW forecasting, uncertainties still persist in terms of the volumes of LLW, when they will arise and the types of facilities that would be needed to manage them. Until these uncertainties have been removed as far as possible, granting permission for this facility would not be justified and would be contrary to the policy approach advocated in PPS10 (Paragraphs 4 and 7).

5.263 The planning assessment indicates that there is clearly potential at existing UK nuclear sites for LLW/VLLW disposal, which has not been fully investigated, and could provide additional disposal routes to those already permitted and operational in the near and longer term. This potential exists in the LLWR cap profile (and potentially elsewhere on the LLWR site) but also at other nuclear sites, following the recent announcement by the NDA that all nuclear sites will be undertaking assessments of the potential for the development of on-site LLW management facilities. Sellafield’s on-site assessment is planned for early 2013. These potential disposal routes would comply with the sustainability objectives of PPS10 (Paragraph 20), RSS Policy EM13, and the National Planning Policy Framework (NPPF) and also help divert wastes from the LLWR. The Keekle Head proposal is contrary to these national planning and development plan policy objectives, and is considered sequentially less acceptable until such options have been fully assessed. To grant permission for this facility at this time would prejudice consideration of these sequentially preferable options.

In terms of the potential socio-economic impacts of this proposal, the County Council has general concerns that the dispersal and proliferation of any type of radioactive waste management facilities away from established nuclear licensed sites creates a negative image and perception of Cumbria and West Cumbria in particular, and that this could deter investment from the non-nuclear sector and damage prospects for much needed economic diversification, growth and regeneration. Whilst this concern persists, there remains uncertainty as to whether this proposal, either alone or in combination with existing radioactive waste management facilities in Cumbria, would have such negative impacts, and so insufficient grounds to conclude that the proposal is contrary to Core Strategy Policy 2. The facility would provide some economic benefit in terms of job creation, albeit on a limited scale. A package of community benefits would need to be secured to comply with Core Strategy 3 and off-set the impacts of hosting this facility.

5.264 Although the majority of the UK’s LLW/VLLW is expected to arise from Sellafield, this will not come on stream to any significant extent until around 2030 and it is anticipated that the proposed facility would be a national repository. The proposed location in West Cumbria is not sustainable as it would give rise to waste being transported to the site by road over considerable distances, because (unlike the LLWR site or Sellafield) it is not accessible by rail or sea as an alternative means of transporting the waste. It would not be reasonable or enforceable to control the source of waste by planning condition. As such, it is considered that the proposal at this time is contrary to PPS10 (Paragraph 3), the sustainability objectives of the NPPF (Paragraph 34), RSS EM12 and CMWF Core Strategy Policy 1 and DC Policy 1 as it would enable communities not to take responsibility for their own LLW, and would generate unnecessary waste road miles.

5.265 Impacts upon the local highway network could be adequately mitigated by legal agreements to secure financial contributions for the long term maintenance of the haul route and an extension to the 40mph zone near the crematorium and the attachment of planning conditions.

5.266 In terms of potential impacts upon the health and safety of the local (and wider) community, it is considered that provided the relevant pollution control regime will be properly enforced (ie. by the Environment Agency), an assumption that PPS10 and the NPPF (Paragraph 22) advise local planning authorities to make, there is no evidence to suggest that the proposed development would give rise to unacceptable health risks. It is also considered that the impacts upon residential amenity, in terms of noise, vibration and dust, could be controlled and mitigated to an acceptable level by the attachment of planning conditions.

5.267 In terms of the ecological impacts, the Habitat Regulations Assessments commissioned by the County Council have concluded that, subject to the attachment of planning conditions and restrictions applied by other regulatory frameworks there would be no adverse impact on the integrity of the River Ehen SAC, and there would be no likely significant effect on the integrity of SPA Hen Harrier network as a result of this proposal. A legal agreement to secure the provision of compensatory land and on-site mitigation measures would be required to safeguard the adjacent wintering hen harrier population and measures to protect and enhance habitats for other protected and priority species could be secured by planning condition. A detailed revised restoration scheme and restoration management plan would also be required. There is a general concern that because of the lack of detail submitted with the application there would be a range of complex and potentially conflicting requirements needing to be controlled by planning conditions.

5.268 The remaining ecological impact of some concern is the direct loss of the Priority Habitat within the Sandbeds Meadows County Wildlife Site (CWS) which has already been reduced by the mine workings. This proposal would not restore the CWS to a condition whereby its value could re develop and would lead to a permanent loss of the CWS habitat. No compensation habitat, of this type, has been proposed. This is contrary to CMWDF Core Strategy Policy 4 and DC Policy 10 as there is not an overriding need for this development and alternative sites could be available.

5.269 It is considered that the impacts of the proposal upon the landscape character and visual receptors in the vicinity of the site would be unacceptable and contrary to RSS Policy DP7 and EM1, CMWDF Core Strategy Policy 4 and Development Control Policies 12 and 16. The facility would impose engineered, artificial, industrialised structures and features, which would be discordant, incompatible and out of scale with the character of the local rural landscape, and have adverse impacts upon residential receptors and potential receptors from High Park Open Access Land which could not be minimised or mitigated to an acceptable degree.

5.270 Whilst it is acknowledged that this proposal would create local job opportunities, the number created would be fairly minimal considering the scale and duration of the proposed development. The applicant considers the main benefit of the proposal to be the restoration of a former derelict opencast coal site which has remained unrestored for several years and has little current prospect of being restored. The County Council does not accept that this proposal represents the only possible means of restoring the site and, although not relevant for consideration prior to the determination of this application, has commissioned a consultant to develop a series of ‘lighter touch’ and potentially more achievable alternative restoration schemes which could be the subject of an alternative Enforcement Notice. It is also considered that the Keekle Head proposal would not be the best mechanism to address the current injury to local amenity, due to the considerable time it would take before the site could be considered finally restored and the waste containment area that would remain a permanent, out of scale and incongruous feature in the landscape.

5.271 It is concluded that there is no demonstrable overriding and present need for this facility; no need or potential benefits that would outweigh the adverse impacts caused by this development, and there are more acceptable alternative potential options for managing LLW/VLLW at existing nuclear sites which have not been rigorously assessed. The proposal is contrary to development plan policies as indicated above and planning permission should therefore be refused for the reasons set out in Appendix 1.

Paul Feehily Assistant Director, Planning & Sustainability Contact

Rachel Brophy, Kendal: Tel No: 01539 713413 Email: rachel.brophy@cumbriacc.gov.uk Background Papers

Planning Application File Reference No. 4/10/9001 Electoral Division Identification

Distington and Moresby – Mr AC Ross Hensingham and Arlecdon – Mr M Hawkins

Appendix 1 Ref No. 4/10/9001.

Development Control and Regulation Committee – 8 May 2012 Reasons for Refusal of Planning Permission

1. There is no need for this facility until around 2030, and no need that would outweigh its adverse impacts. The proposal is not in accordance with the decision making principles of national policy in PPS 10 (Paragraphs 4, 7 and 11) as it is not based on a robust analysis of available data and information, and an appraisal of options, or the latest advice on forecasts of LLW waste arisings; the proportion of LLW waste that can be driven up the waste hierarchy, and the extent to which existing waste management capacity would be able to meet any identified need. The proposal does not accord with national policy and cannot be justified unless and until a need has been proven.

2. The proposal is not in accordance with PPS 10 (Paragraph 20), RSS Policy EM13 and

‘saved’ Cumbria and Lake District Joint Structure Plan Policy ST4, as alternative sites, including those on or adjacent to existing nuclear sites where the waste arises or where waste is currently managed, which could give rise to less harm, have not been fully explored, considered or assessed.

3. The proposal is contrary to NPPF (Paragraph 34), RSS EM 12 and Cumbria Minerals

and Waste Development Framework Core Strategy Policy 1 and Development Control Policy 1 with regard to sustainable location and communities taking responsibility for their own waste, as its location would give rise to unnecessary waste road miles, and would not be accessible by rail or the sea.

4. The proposal is contrary to Cumbria Minerals and Waste Development Framework

Core Strategy Policy 4 and Development Control Policy 10 as it would have an unacceptable impact upon a UK Priority Habitat and a County Wildlife Site. No adequate mitigation or compensation measures have been proposed; there is no overriding need for the development until around 2030 and more acceptable alternative sites on or adjacent to existing nuclear sites could result in less harm.

5. The proposal is contrary to RSS Policy DP 7, EM 1, Cumbria Minerals and Waste

Development Framework Core Strategy Policy 4 and Development Control Policies 12 and 16. It would not respect, protect, maintain or enhance the local landscape character; maintain or enhance the tranquillity of the area, or be compatible with the landscape in terms of its scale, siting and design. The proposal would impose artificial, engineered and industrialised structures and features which would be and remain incongruous, discordant, incompatible and out of scale with the character of the local rural landscape. The proposal would have unacceptable visual impacts upon residential receptors on the periphery of the site and from High Park Open Access Land, as compared with the baseline restoration scheme, and restoration of the site would not be completed within a reasonable timescale.

Appendix 2 Ref No. 4/10/9001

Development Control and Regulation Committee – 8 May 2012 Tables and Figure 1 (overleaf) to accompany Section 5 (i) The Local, Regional and National Need for the Facility Table 1:

VLLW and LLW Arisings in the UK 2010-2120

Information Source Arisings in Million Cubic Metres [mcm]

VLLW LLW TOTAL

‘2007 UK Radioactive Waste Inventory’ (DEFRA, NDA) – Published March 2008

1.8mcm (approx)

1.4mcm (approx)

3.2mcm

‘2010 UK Radioactive Waste Inventory’ (DECC, NDA) – Published February 2011

3.3mcm 1.1mcm 4.4mcm

Table 2:

Estimated Volumes of VLLW / LALLW Arising (up to 200 Bq/g) (2010-2026) - The Four Main Producers of VLLW / LALLW in UK

Site Name

Total Volume of VLLW / LLW

Produced (Cubic Metres)

Volume following deduction of Exempt Waste and Application of

Waste Hierarchy (Cubic Metres)

Percentage Reduction

Sellafield

141,417 92,012 35%

Harwell

84,011 83,976 0.1%

Springfields

48,583 26,532 45%

Dounreay

42,764 35,618 17%

Source: UK Management of Solid Low Level Radioactive Waste from The Nuclear Industry: analysis of Near-Term Low Activity LLW Arisings within the UK Radioactive Waste Investory 2010 (LLWR Ltd, NDA) – Published May 2011

Table 3:

Existing Capacity of VLLW and LALLW Disposal Facilities in the UK - 2012

Site Name and Location Capacity

Life of each Facility

Indicative Extension Timescales

Planning Permission Expiry

CLESA, Sellafield, Cumbria 120,000 cu m* (remaining capacity

80,000 cu m) - 2027

Lillyhall Landfill, Workington, Cumbria 582,000 cu m (26,000 cu m per yr)**

2031 ** Restored by 2014

Clifton Marsh Landfill, Lancashire 250,000 cu m** (10,000 tons per yr)*

2020 ** 2015

Kings Cliffe, Northamptonshire 250,000 tonnes per year

N.B. Unspecified proportion of this

reserved for LLW*

2026*** 2013

* Specified in Planning Permission ** Specified in Environment Agency permit application *** Specified in recent Planning Application

Appendix 3

Ref No. 4/10/9001 Development Control and Regulation Committee – 8 May 2012

THE TOWN AND COUNTRY PLANNING

(DEVELOPMENT MANAGEMENT PROCEDURE) (ENGLAND) ORDER 2010

Summary of Policy Background to Refusal of Planning Permission

1 This application has been determined in accordance with the Town and Country Planning Acts, in the context of national and regional planning policy guidance and advice and the relevant development plan policies.

2 The key development plan policies taken into account by the County Council before refusing permission were as follows:

Note: full text of policies referred to below is listed in Appendix 4 National Planning Policy Framework (March 2012) North West Regional Spatial Strategy (RSS) (2008-2021) RDF 2 – Rural Areas EM 11 - Waste Management Principles EM 12 - Locational Principles EM13 - Provision of Nationally, Regionally and Sub-Regionally Significant Waste Management Facilities, EM 14 - Radioactive Waste DP7 - Promote Environmental Quality Cumbria & Lake District Joint Structure Plan 2001-2016 (Saved Policies)

ST4 – Major Development Proposals E37 – Landscape character Cumbria Minerals and Waste Development Framework (CMWDF) Core Strategy (CS) 2009-2020 CS 1 – Sustainable Location and Design CS 2 – Economic Benefit CS 3 – Community Benefits CS 4 – Environmental Assets CS 12 – Low Level Radioactive Waste Cumbria Minerals and Waste Development Framework (CMWDF) Generic Development Control Policies (GDCP) 2009-2020 DC 1 – Traffic and Transport DC 2 – General Criteria DC 10 – Biodiversity and Geodiversity DC 12 – Landscape DC 14 – The Water Environment

Cumbria Minerals and Waste Development Framework (CMWDF) – Site Allocations Policies (SAP) 2011-2020

SAP 6 – Low Level Radioactive Waste Copeland Local Plan (2001-2016) (Saved Policies) DEV 8 – Major Development NUC 1 – Radioactive Waste Storage TSM 1 – Visitor Attractions

3 In summary, the reasons for refusing permission are that the County Council is of the opinion that the proposed development is not in accordance with aspects of the development plan and there are no material considerations that indicate the decision should be made otherwise.

Appendix 4 Ref No. 4/10/9001

Development Control and Regulation Committee – 8 May 2012

Note: Full text of policies referred to in Appendix 3 NORTH WEST REGIONAL SPATIAL STRATEGY (RSS) (2008-2021)

Policy DP 7 - Promote Environmental Quality

Environmental quality (including air, coastal and inland waters), should be protected and enhanced, especially by:

understanding and respecting the character and distinctiveness of places and landscapes;

the protection and enhancement of the historic environment;

promoting good quality design in new development and ensuring that development respects its setting taking into account relevant design requirements, the NW Design Guide and other best practice;

reclaiming derelict land and remediating contaminated land for end-uses to improve the image of the region and use land resources efficiently;

maximising opportunities for the regeneration of derelict or dilapidated areas;

assessing the potential impacts of managing traffic growth and mitigating the impacts of road traffic on air quality, noise and health;

promoting policies relating to green infrastructure and the greening of towns and cities;

maintaining and enhancing the tranquillity of open countryside and rural areas;

maintaining and enhancing the quantity and quality of biodiversity and habitat;

ensuring that plans, strategies and proposals which alone or in combination could have a significant effect on the integrity and conservation objectives of sites of international importance for nature conservation are subject to assessment, this includes assessment and amelioration of the potential impacts of development (and associated traffic) on air quality, water quality and water levels.

Policy RDF 2 - Rural Areas

Plans and strategies for the Region’s rural areas should support the priorities of the Regional Rural Delivery Framework and:

maximise the economic potential of the Region’s rural areas;

support sustainable farming and food;

improve access to affordable rural housing;

ensure fair access to services for rural communities;

empower rural communities and address rural social exclusion;

enhance the value of our rural environmental inheritance.

Key Service Centres

Plans and Strategies should identify a subset of towns and villages as Key Service Centres which:

act as service centres for surrounding areas, providing a range of services including retail, leisure, community, civic, health and education facilities and financial and professional services; and

have good public transport links to surrounding towns and villages, or the potential for their development and enhancement.

Development in rural areas should be concentrated in these Key Service Centres and should be of a scale and nature appropriate to fulfil the needs of local communities for housing, employment and services, and to enhance the quality of rural life.

Local Service Centres

Small scale development to help sustain local services, meet local needs, or support local businesses will be permitted in towns and villages defined as Local Service Centres in Local Development Documents which already provide a more limited range of services to the local community.

Outside Key and Local Service Centres

In remoter rural areas particularly the ‘sparse’ rural areas of the region, more innovative and flexible solutions to meet their particular development needs should be implemented and targeted towards achieving:

more equitable access to housing, services, education, healthcare and employment; and

a more diverse economic base, whilst maintaining support for agriculture and tourism.

Exceptionally, new development will be permitted in the open countryside where it:

has an essential requirement for a rural location, which cannot be accommodated elsewhere (such as mineral extraction);

is needed to sustain existing businesses;

provides for exceptional needs for affordable housing;

is an extension of an existing building; or involves the appropriate change of use of an existing building.

LDDs should set out criteria for permitting the re use of buildings in the countryside in line with PPS7.

Policy EM 11 - Waste Management Principles

Every effort should be made to minimise waste, maximise re-use, and maximise opportunities for the use of recycled material. Such residual waste as does arise should be managed at the highest practicable level in the Government’s waste hierarchy. The following sequence of initiatives should be followed, and appropriate facilities provided:

first, waste minimisation; then

maximise the re-use of waste for the same or a different purpose; then

composting or recycling (for instance through streamed “kerbside” collections, “bring” banks, civic amenity sites, and centralised recycling facilities); then

intermediate treatment of wastes that cannot readily be composted or recycled (through anaerobic digestion or mechanical biological treatment (MBT)); or

treatment to deal with hazardous materials; then

production of refuse derived fuels from waste; then

recovery of energy from residual waste and refuse derived fuels (by a range of thermal treatments); and finally

disposal of residual wastes by land-filling (or land-raising), including the recovery of energy from landfill gas where practicable.

Policy EM 12 - Locational Principles

Waste planning and disposal authorities should provide for communities to take more responsibility for their own waste. The final residue, following treatment, of municipal, commercial and industrial waste should be disposed of in one of the nearest appropriate installations. Local authorities should ensure that waste management facilities are sited in such a way as to avoid the unnecessary carriage of waste over long distances. In considering the location of new waste management facilities, they should take account of the availability of transport infrastructure that will support the sustainable movement of waste, seeking when practicable to use rail or water transport. They should also take account of the environmental impact of the proposed development. Policy EM 13 - Provision of Nationally, Regionally and Sub-Regionally Significant Waste Management Facilities

Plans, strategies, proposals and schemes should provide for an appropriate type, size and mix of development opportunities to support, bring forward and safeguard sites for waste management facilities that will deliver the capacity to deal with the indicative volumes of non-hazardous commercial and industrial waste, hazardous waste and municipal waste in each sub-region, as set out in Tables 9.3, 9.4 and 9.5 respectively.

Plans and Strategies should identify locations for waste management facilities and allocate suitable sites for the provision of facilities up to 2020. When identifying these sites, account should be taken of the scope for co-location of complementary activities, such as resource recovery parks, to support the provision of adequate reprocessing and re-manufacturing capacity.

In considering proposals for waste management facilities (including additional landfill capacity) the ability of existing established sites to meet the needs of the region / sub region should be fully explored. Wherever possible, such sites should be used in preference to other sites where waste management activities have not previously been located, provided proposals for the development of waste management facilities satisfy general planning and licensing conditions, including the likely cumulative impact on the environment, landscape, cultural heritage, groundwater, the amenity and health of the neighbourhood and residents, the traffic impact; available transport links; the prevention and control of pollution and any specific technical issues.

For both the municipal, and the commercial and industrial waste streams, primary reception, treatment and transfer facilities should be located near to the sources of arisings. Secondary treatment and disposal facilities may be located on a sub-regional strategic basis, to serve a wider catchment area. Regionally significant facilities may be needed to serve the Mersey Belt, which includes the Manchester and Liverpool conurbations. The provision of nationally significant waste management facilities may be appropriate where the region offers a particular waste management advantage on a national scale.

Where it is appropriate at the sub-regional level, waste planning, disposal and collection authorities should work together to produce joint waste management strategies in partnership with the Environment Agency, the waste management industry, Regional Planning Body and other stakeholders. Policy EM 14 - Radioactive Waste

Plans and strategies should continue to support the North West as a centre of national and international expertise in the fields of nuclear fuel fabrication, reprocessing, radioactive waste management and decommissioning.

National and regional partners should work together to promote an agreed solution to the safe long-term management of radioactive waste, based on consultation with all relevant interests. This should incorporate a long-term commitment to the reduction of radioactive discharges and to radioactive waste minimisation, management and safe storage techniques.

CUMBRIA & LAKE DISTRICT JOINT STRUCTURE PLAN 2001-2016 (SAVED POLICIES) ST4 – Major Development Proposals

Major development will only be permitted where:

1. the total benefit clearly outweighs the total detrimental effects, 2. the proposal complies with national standards and best practice for environment, safety

and security, and where appropriate is independently reviewed; and 3. alternative locations and methods giving rise to less harm have been fully considered

and rejected. 4. In addition, in the case of the Lake District National Park and AONBs:

a. there are no alternative sites available outside the designated areas, b. the need for the development cannot be met in any other way, c. the development has a proven case in the public interest, d. the development is designed and carried out to cause least practicable harm, and e. the development has no overall adverse impacts on the local economy.

Permission will be granted only on condition that: I. all possible measures are taken to minimise the adverse effects of development and

associated infrastructure,

and where appropriate,

II. provision is made to meet local community needs, III. acceptable measures are secured for decommissioning and site restoration, and IV. arrangements are made for suitable local community involvement during the

development, decommissioning and restoration.

For the purposes of this policy ‘major development’ is defined as development that has significant environmental effects and is more than local in character. E37 – Landscape character Development and land use change should be compatible with the distinctive characteristics and features of Cumbria’s landscape types and sub types. Proposals will be assessed in relation to:

1. locally distinctive natural or built features, 2. visual intrusion or impact, 3. scale in relation to the landscape and features 4. the character of the built environment 5. public access and community value of the landscape 6. historic patterns and attributes, 7. biodiversity features, ecological networks and semi-natural habitats, and 8. openness, remoteness and tranquillity.

CUMBRIA MINERALS AND WASTE DEVELOPMENT FRAMEWORK (CMWDF) CORE STRATEGY (CS) 2009-2020 CS 1 – Sustainable Location and Design

Proposals for minerals and waste management developments should demonstrate that :-

energy management, environmental performance and carbon reduction have been determining design factors.

their location will minimise, as far as is practicable, the "minerals or waste road miles" involved in supplying the minerals or managing the wastes unless other environmental/sustainability and, for minerals, geological considerations override this aim.

all proposed waste management developments with gross floor space of over 1000 square metres gain at least 10% of energy supply, annually or over the design life of the development, from decentralised and renewable or low carbon energy supplies. Any exceptions to this should demonstrate that this would not be feasible or viable for the specific development and that the development would form part of an integrated process for reducing greenhouse gas emissions or for carbon-offsetting measures.

where appropriate, the restoration proposals have a role in helping to combat climate change.

mineral working proposals should demonstrate a life cycle ("cradle to grave") analysis of product and process carbon emissions.

construction of buildings minimises waste production and use of primary aggregates and makes best use of products made from recycled/re-used materials.

Work will be undertaken, in conjunction with stakeholders, to develop life cycle analysis criteria that are relevant for minerals developments. CS 2 – Economic Benefit

Proposals for new minerals and waste developments should demonstrate that they would realise their potential to provide economic benefit. This will include such matters as the number of jobs directly or indirectly created or safeguarded and the support that proposals give to other industries and developments. It will also be important to ensure that minerals and waste developments would not prejudice other regeneration and development initiatives. CS 3 – Community Benefits

Where large national or regional waste management facilities are proposed, particularly for the nuclear industry, the County Council will expect that packages of community benefits will be provided to help to offset the impacts of hosting such facilities.

CS 4 – Environmental Assets

Minerals and waste management developments should aim to:

protect, maintain and enhance overall quality of life and the natural, historic and other distinctive features that contribute to the environment of Cumbria and to the character of its landscapes and places.

improve the settings of the features,

improve the linkages between them and buffer zones around them, where this is appropriate;

realise the opportunities for expanding and increasing environmental resources, including adapting and mitigating for climate change.

Areas and features identified to be of international or national importance.

Planning application proposals within these, or that could affect them, must demonstrate that they comply with the relevant national policies as set out in Planning Policy Statements. Wherever practicable, they should also demonstrate that they would enhance the environmental assets.

Environmental assets not protected by national or European legislation

Planning permission will not be granted for development that would have an unacceptable impact on these environmental assets, on its own or in combination with other developments, unless:-

it is demonstrated that there is an overriding need for the development, and

that it cannot reasonably be located on any alternative site that would result in less or no harm, and then,

that the effects can be adequately mitigated, or if not,

that the effects can be adequately and realistically compensated for through offsetting actions.

All proposals would also be expected to demonstrate that they include reasonable measures to secure the opportunities that they present for enhancing Cumbria's environmental assets.

Guidance on implementing parts of this policy will be provided by the Landscape Character and Highway Design Guidance Documents and by the Cumbria Biodiversity Evidence Base CS 12 – Low Level Radioactive Waste

Provision will be made for the Low Level Repository, near Drigg to continue to fulfil a role as a component of the UK's radioactive waste management capability. Proposals for very long term storage or disposal of waste will have to demonstrate that they are feasible in relation to the long term integrity of the site with regard to sea level rise and coastal erosion. Proposals for additional storage or disposal facilities will have to demonstrate that they are within the site's radiological capacity.

The acceptance, by the County Council, of a national role for the Repository is on the basis of the NDA's and the site operator's initiatives for reducing the proportions of waste that are consigned to it. The success of those initiatives will be monitored closely, in part through the Council's membership of the national Low Level Waste Strategy Group.

CUMBRIA MINERALS AND WASTE DEVELOPMENT FRAMEWORK (CMWDF) GENERIC DEVELOPMENT CONTROL POLICIES (GDCP) 2009-2020

DC 1 – Traffic and Transport

Proposals for minerals and waste developments should be located where they:

a. are well related to the strategic route network as defined in the Local Transport Plan, and/or

b. have potential for rail or sea transport and sustainable travel to work, and c. are located to minimise operational "minerals and waste road miles".

Mineral developments that are not located as above may be permitted if:

they do not have unacceptable impacts on highway safety and fabric, the convenience of other road users and on community amenity,

where an appropriate standard of access and traffic routing can be provided, and appropriate mitigation measures for unavoidable impacts are provided.

DC 2 – General Criteria

Minerals and Waste proposals must, where appropriate, demonstrate that:

a. noise levels, blast vibration and air over-pressure levels would be within acceptable limits,

b. there will be no significant degradation of air quality (from dust and emissions), c. public rights of way or concessionary paths are not adversely affected, or if this is not

possible, either temporary or permanent alternative provision is made, d. carbon emissions from buildings, plant and transport have been minimised, e. issues of ground stability have been addressed.

Considerations will include:

the proximity of sensitive receptors, including impacts on surrounding land uses, and protected species,

how residual and/or mineral wastes will be managed,

the extent to which adverse effects can be controlled through sensitive siting and design, or visual or acoustic screening,

the use of appropriate and well maintained and managed equipment,

phasing and duration of working,

progressive restoration,

hours of operations,

appropriate routes and volumes of traffic, and other mitigation measures.

DC 10 – Biodiversity and Geodiversity

Proposals for minerals and waste developments that would have impacts on locally important biodiversity and geological conservation assets, as defined in the Core Strategy, will be required to identify their likely impacts on, and also their potential to enhance, restore or add to these resources, and to functional ecological and green infrastructure networks. Enhancement measures should contribute to national, regional and local biodiversity and geodiversity objectives and targets, and to functional ecological and green infrastructure networks.

Proposals for developments within, or affecting the features or settings of such resources, should demonstrate that:

a. the need for, and benefits of, the development and the reasons for locating the development in its proposed location and that alternatives have been considered.

b. appropriate measures to mitigate any adverse effects (direct, indirect and cumulative) have been identified and secured, and advantage has been taken of opportunities to incorporate beneficial biodiversity and geological conservation features, or

c. where adverse impacts cannot be avoided or mitigated for, that appropriate compensatory measures have been identified and secured, and

d. that all mitigation, enhancement or compensatory measures are compatible with the characteristics of, and features within, Cumbria.

DC 12 – Landscape

Proposals for development should be compatible with the distinctive characteristics and features of Cumbria's landscapes and should:

a. avoid significant adverse impacts on the natural and historic landscape, b. use Landscape Character Assessment to assess the capacity of landscapes to accept

development, to inform the appropriate scale and character of such development, and guide restoration where development is permitted,

c. in appropriate cases use the Guidelines for Landscape and Visual Impact Assessment

to assess and integrate these issues into the development process, d. ensure that development proposals consider the effects on: locally distinctive natural

or built features; scale in relation to landscape features; public access and community value of the landscape; historic patterns and attributes; and openness, remoteness and tranquility,

e. ensure high quality design of modern waste facilities to minimise their impact on the landscape, or views from sensitive areas, and to contribute to the built environment,

f. direct minerals and waste developments to less sensitive locations, wherever this is possible, and ensure that sensitive siting and high quality design prevent significant adverse impacts on the principal local characteristics of the landscape including views from, and the setting of, Areas of Outstanding Natural Beauty, the Heritage Coast or National Parks.

DC 14 – The Water Environment

Planning permission will only be granted for developments that would have no unacceptable quantitative or qualitative adverse effects on the water environment, including surface waters and groundwater resources. Proposals that minimise water use and include sustainable water management will be favoured. CUMBRIA MINERALS AND WASTE DEVELOPMENT FRAMEWORK (CMWDF) SITE ALLOCATIONS POLICIES (SAP) 2011-2020

SAP 6 – Low Level Radioactive Waste

First Preference Sites:-

CO 35 The Low Level Waste Repository, near Drigg CO 36 Land within Sellafield

COPELAND LOCAL PLAN (2001-2016) (SAVED POLICIES)

DEV 8 – Major Development

Proposals for major development will be considered in relation to JSP Policy ST4. Where there is a significant adverse social, economic or environmental cost or effect arising directly from the development a Planning Obligation to address this cost or effect will be expected. Provision secured by this means will be commensurate with the scale, nature and location of the individual development. NUC 1 – Radioactive Waste Storage

The Council will only support a proposal for disposal or long term storage of radioactive waste where it meets the requirements set out in Structure Plan Policy ST4 and Local Plan Policy DEV 8 and in addition has:

1. Involved and secured the support of the local Copeland community in the development and subsequent implementation of such proposals

2. Included measures to meet local community needs and to mitigate the adverse effects of the proposals on the social and economic well being of the community.

TSM 1 – Visitor Attractions The Council will protect and promote existing tourist attractions and will permit development which contributes to their fuller interpretation, appearance or means of enjoyment provided that it does not conflict with the principles of sustainable development set out in Policy Dev 8. Tourism Opportunity Sites (identified as having particular potential for tourist attractions): TOS - 2 Development associated with the urban fringe leisure and recreational use of the Ehen/Keekle valleys.