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PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 20/00416/LAW Applicant : Mr John Alfred Kneen Proposal : Certificate of Lawful Use for the processing of Construction and Demolition Waste Site Address : Composting Site Poortown Road St Johns Isle Of Man IM4 3NQ
Head of Development Management: Mr S Butler Photo Taken :
Site Visit : Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use/Devel Approved Date of Recommendation: 15.12.2020 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. The evidence submitted, along with the information from other Departments/Divisions, suggest on the balance of probability that the following has taken place on the site for a period in excess of ten years: o 5,000 tonnes per annum of Soils/Bricks/Ceramics, River Gravels and Street Cleaning Residues being brought onto the site; and o the waste brought onto the site being subject to processes including sorting, storage, and screening (but excluding crushing as a primary process).
The evidence also demonstrates that as part of the legitimate business of the site of composting organic waste, elements of the above waste has been sorted and processed within the area hatched in blue on the submitted plan for use in Phases 2 and 3 of PA 04/01725/B and 16/00976/B and for general maintenance of roads within the site.
Plans/Drawings/Information;
This decision relates to the following information:
o Location Plan (received 22.04.20) o Affidavit from applicant (Mr. John Alfred Kneen) with attachments (received 22.04.20) o 2 E-mails from applicant (received 15.06.20) o E-mails from applicant (with attachments) 26th and 28th June 2020 o E-mail from applicant 02.07.20 o Letter from sub-contractor (06.07.20) o Additional supporting information is attached to this : o Waste Disposal Sheet for disposal of spoil at the site (09.05.06)
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o Weighbridge Ticket - Poortown (2006) o Invoice for provision of stone (2006) o Weighbridge Tickets - Poortown (2006) - for sweepings o Receipt relating to skips at M Veg (2007) o Weighbridge Tickets - Poortown (2007) - for sweepings o Invoice for spoil and green waste (2007) o Invoice for stone (2008) o Record of soil, spoil and green waste (2008) o Tickets (2008) o Invoice for materials (2009) o 2 Invoice for stone (2009) o DOT Tickets for spoil and sweepings (2009) o Invoice for soil (2010) o Tickets for spoil and road sweepings (2010) o Ticket for spoil and road sweepings (2011-13) o Invoice for stone (2011) - 4 cubic metres o Processing Figures 2014/15 - includes Spoil and Road Sweeping o Ticket for 2014 - spoil o Processing Figures for 2015 - includes Spoil and Road Sweeping o Invoices for roadsweepings and spoil (2016) o Waste Returns 2017 - includes 183.54 tonnes of soil, stones and dredged spoil - recycled o Invoices for road sweepings and spoil (2017) o Waste figures incoming for June 2018 - includes road sweepings and spoil o Invoices for spoil and road sweepings (2019) o Letter from the DOI Site Works Manager (10/03/20) o Affidavit from Mr. Richard Kneen dated 22.04.20 o The applicant provided additional information on the 26.06.20 including: Map showing area where materials to be sorted/crushed are stored and area where crushing is carried out, Waste Returns 2010 - 2016 (excluding 2014), Invoice from JCK 13.09.11, Letter from Tels dated 19.06.20, Letter from Quest dated 19/06/20, Photographs of site and Letter from applicant. o Waste Returns for 2018 and 2019 (provided 28.06.20) o E-mail from applicant (02.07.20) o Letter from Andrew Kissack & Son Ltd (06.07.20)
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Interested Person Status - Additional Persons
N/A __
Officer’s Report
1.0 SITE DESCRIPTION 1.1 Ballaneven Compost Site, Poortown Road, St. Johns.
2.0 THE PROPOSAL AND EVIDENCE SUBMITTED 2.1 A Certificate of Lawful Use and Development is sought for the use/development of the site for the purpose of. This is not an application for planning permission but seeks to demonstrate that the use of the building is lawful by virtue of being used for this purpose for over 10 years.
Documents: o Location Plan (received 22.04.20)
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o Affidavit from applicant (Mr. John Alfred Kneen) with attachments (received 22.04.20) o 2 E-mails from applicant (received 15.06.20) o E-mails from applicant (with attachments) 26th and 28th June 2020 o E-mail from applicant 02.07.20 o Letter from sub-contractor (06.07.20)
2.2 The application has been submitted with an Affidavit from applicant (Mr. John Alfred Kneen) date stamped as having been received 22.04.20. This indicates that: o Planning Approval was granted under 04/01725/B for composting green waste. o Site has been operational since 2005 and has treated the following since opening: - Road sweepings (often containing plastic, stones, bricks, blocks, tyres and metal), Site clearance for builders and contractors (often containing plastic, stones, bricks, blocks, treated wood, tyres and metal) and DoT/DoI ditchings (often contain plastic, stones, river gravel, bricks, blocks, tyres and metal). o Waste Management Licence allowed various types of carbon based waste streams but one of first large DoT contracts was result of a demolition and included stone wall, paving, trees, sub soil and hedging. Matter raised with EPU and varation of licence granted. Licence amended in August 2008 by DoLG&E to add cover soil and stones (other than hazardous waste). o Since 2005 has established commercial link-s with various companies and has used Tel's as main contractor for processing demolition waste (stone, concrete, bricks and blocks) - 128 tonnes in 2014 and 183.54 tonnes in 2017. This waste has either been processed at Ballaneven or by Tel's then either used on site or sold. The 2017 figures o Since 2006 DOI has used for dealing with spoil from river works (when weirs have been demolished all concrete and river gravel has been sent to Ballaneven) and road sweepings (which contained demolished walls, hedges an gate pillars) - 1412.92 tonnes in 2014 and 1590.54 tonnes in 2017. o Has worked with various builders to receive site clearance including Dandara, Hartford Homes, Haven Homes and Cedar Developments. o In 2014 a fire destroyed stockpiled material to be used to implement 'Phase 2' of the planning approval, subsequently ha to import demolition waste. Since repairing fire damage has stock piled spoil into large pile for processing in 2019/20. Have shipped in 90 tonnes a month for last 6 months in preparation for more work on Phase 2 and to generate income to concrete.
2.3 The process is described as: o Waste arrives and sorted and put into stockpiles. Green waste is shredded, road sweeping and mixed loads stockpiled separately to avoid leachate. After at least 8 weeks it is screened to separate bricks, blocks, concrete, plastics, metal and soil. o On separation, plastics put in a skip for onward recycling. o Metal further separated to alloys and other metals, stockpiled then taken for onward recycling. o Any other waste sent off site for further processing. o Natural stone, river gravel and stone walls (without mortar) are stockpiled and processed on or off-site. o Bricks, concrete, blocks and reclaimed stones used with mortal stockpiled for processing on or off-site. o Treated wood is separated for either green waste or spoil, stockpiled and taken for onward processing.
2.4 Additional supporting information is attached to this : o Waste Disposal Sheet for disposal of spoil at the site (09.05.06) o Weighbridge Ticket - Poortown (2006) o Invoice for provision of stone (2006) o Weighbridge Tickets - Poortown (2006) - for sweepings o Receipt relating to skips at M Veg (2007)
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o Weighbridge Tickets - Poortown (2007) - for sweepings o Invoice for spoil and green waste (2007) o Invoice for stone (2008) o Record of soil, spoil and green waste (2008) o Tickets (2008) o Invoice for materials (2009) o 2 Invoice for stone (2009) o DOT Tickets for spoil and sweepings (2009) o Invoice for soil (2010) o Tickets for spoil and road sweepings (2010) o Ticket for spoil and road sweepings (2011-13) o Invoice for stone (2011) - 4 cubic metres o Processing Figures 2014/15 - includes Spoil and Road Sweeping o Ticket for 2014 - spoil o Processing Figures for 2015 - includes Spoil and Road Sweeping o Invoices for roadsweepings and spoil (2016) o Waste Returns 2017 - includes 183.54 tonnes of soil, stones and dredged spoil - recycled o Invoices for road sweepings and spoil (2017) o Waste figures incoming for June 2018 - includes road sweepings and spoil o Invoices for spoil and road sweepings (2019)
2.5 Much of the above references spoil, sweepings or materials and gives the quantity as 1 unit.
2.6 The affidavit also includes a letter from the DOI Site Works Manager (10/03/20) which indicates he has been involved with the site since 2005 and he has sent materials there whilst working for both Manx Utilities and DOI. This has included - River Gravels, Watercourse Dredging, Embankment Material, Remains of demolished brick/concrete structures, Road Sweeper waste, excavated road debris and excavated embankment and field waste.
2.7 The affidavit also includes a second affidavit from Mr. Richard Kneen dated 22.04.20 which indicates that: o He was employed there part time 2007-2010 and full time from 2010 to 2018 as Operations Manager. o The site would regularly receive waste including green waste, waste from forestry, ditch clearance materials, road sweepings (including stone chippings, tarmac and stone) and site clearance material (including stone, as dug, demolition waste from garden walls, patios, driveways, garden chippings, sand and cement mortar). o Worked with various companies for onward processing of materials including Tel's Ltd for processing on and off site of site clearance, stone, gravel, plastics and wood waste o The majority of graded stone produced on-site was processed by Tel's but also included machinery from JCK and Quest. Prior to 2014 a quantity was sold with the remainder being stockpiled for the future implementation of phases 2 and 3. o Following a fire in 2014, the stockpile of stone was used in repair work (taking 2 years to complete) and following this began stockpiling again. o Planning approval given under 16/00976/B on 27.04.17 for erection of a building and a quantity of the stone was stockpiled for this. o Site received waste under codes 17-01, 17-02 and 17-05 o As wastes often came in mixed loads were described as spoil but all materials other than green waste, road sweeping and wood waste were described as spoil.
2.8 The applicant confirmed on the 15.06.20 that although the form referenced operational development and change of use, "...as far as I'm aware it would only be a change of use and not operational development" and, "due to reasons set out in the statement regarding the fire and the extensive repairs needed to the site, for a number of years following this incident the
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majority of the processed material was used in the site. Some material was still sold to customers the percentage was lower". 2.9 The applicant provided additional information on the 26.06.20 including: o Map showing area where materials to be sorted/crushed are stored and area where crushing is carried out o Waste Returns 2010 - 2016 (excluding 2014) o Invoice from JCK 13.09.11 o Letter from Tels dated 19.06.20 which indicates they have provided screening and crushing services on-site and off-site (at their own site) for demolition waste, that some of this was used as hardcore on the site and a "certain amount" was sold to contractors. Also makes referencing to dealing with plastic waste. o Letter from Quest dated 19/06/20 which indicates they purchased a mobile crusher (2015) and screener (2016) and these have been hired out to the applicant on a number of occasions annually since. o Photographs of site which purport to show the current level of material on site at present and the general area in which the material was stored and processed. There are also photos included which show a typical type of load which is received through the gate (see letter). o Letter from applicant.
2.10 The letter from the applicant referred to above stated o On an average 30% of each loads of Soils/Bricks/Ceramics which would require further processing through crushing, and for Street Cleansing it would be 5% and for River Gravels it would be 50%. o ''Processing'' as per the supporting statement is crushing the sorted materials into a saleable product. It states, "For the avoidance of doubt the material which is received through the gate at the site is tipped and then sorted into different waste materials. i.e. plastics would be sorted into the skip, metal would be sorted into a pile to be disposed of, green waste is stockpiled for shredding, soil is stockpiled for screening and larger stone and aggregate would be sorted into a separate pile. Form the screening process of the soil waste a certain amount of oversize stone and aggregate is produced. This is then added to the material to be crushed. At this point depending on the levels of material at the site at the time, the material will either be crushed on site by one of the contractors (Tels Ltd, FPL ltd or Quest landscape services) with a mobile crusher or removed from the site to Tels ltd or FPL ltd for crushing off site".
2.11 On the 28.06.20 the applicant provided Waste Returns for 2018 and 2019.
2.12 On the 02.07.20 the applicant e-mailed in response to questions raised and indicated o He would request further letter from the contractor who carried out the onsite crushing here at Ballaneven from winter 2008/9 till winter 2014/15 o Asking why I would not accept a statement from EPU confirming that we have crushed on site since we started in 2005 o That the licence doesn't say about processing that is because it in the working plan which is a public document and approved by Government before we can operate. o Suggests a limit of 3000 tons per year (presumably for crushing)
2.13 Letter from Andrew Kissack & Son Ltd (06.07.20) indicates he was a sub-contractor for FPL and operated machinery on their behalf, Christmas 2008 crushed stone for 3 days. In 2009 went to the site 3 or 4 times with the crusher and the same for the next few years. After the fire the crusher was used on site to process concrete damaged by the fire and FPL took away some stock pile of crushed stone and provided concrete in return. Last time at the site was winter of 2014/15.
3.0 RELEVANT POLICIES AND GUIDANCE
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3.1 This is an application seeking a Certificate of Lawful Use, and therefore it is not a matter of considering the planning merits of the scheme but rather a legal determination based on the facts to establish whether the stated use is established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is "on the balance of probabilities" rather than the stricter criminal test of "beyond reasonable doubt".
3.2 While the onus of proof is on the applicant it is good practice to review the information available to the planning department to either corroborate or contradict the evidence. Best practice indicates that a certificate should not be refused because the applicant has failed to discharge the stricter, criminal burden of proof, 'namely beyond reasonable doubt'. Generally if there is no evidence from the information available to the department, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence, and any other evidence, is sufficiently precise to justify the grant of a certificate 'on the balance of probability'.
3.3 The effect of a Certificate of Lawfulness is similar to the granting of planning permission, however conditions cannot be attached to a certificate so it is important to be specific when describing the lawful use.
4.0 PLANNING, ENFORCEMENT HISTORY AND OTHER RECORDS
PLANNING RECORDS 4.1 The following have been identified: o 04/01725/B for Construction of organic composting facility - approved on appeal 10.08.05 subject to 4 conditions (relating to commencement, access, removal if no longer required and landscaping). o 16/00976/B for Erection of a building to provide a composting site with office accommodation approved 27th April 2017. Subject to conditions relating to commencement, use for, " o managing the composting process and all ancillary processes associated with its production of compost", no retail use, landscaping, removal if no longer required, removal of existing portakabin, personal approval to Ballaneven Compost Ltd, colour of material (2 conditions), lighting (2 conditions), tidying up site once building completed
4.2 Aerial Photos have been reviewed (published on-line)
ENVIRONMENTAL PROTECTION UNIT 4.3 The following information has been provided:
Exemption (15.11.19) for spreading compost on land
Waste Disposal License (14.02.2020) which authorises the sorting, storage, shredding, screening and composting of waste. It authorises the site dealing with 12,000 tonnes of waste per annum in the following categories (the amount is not sub divided): o Waste from agriculture, horticulture, forestry, hunting and fishing o Wastes from wood processing and the producing of panels and furniture o Waste packaging (including separately collected) o Concrete, Bricks, Tiles and Ceramics, o Wood, soil and stones o Soil, stones and dredged spoil o Waste from Waste Water Treatment Plants o Wastes from the preparation of water intended for human consumption or water for industrial use o Garden and park wastes o Other municipal wastes
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N.B. The above also states that green waste can be stored within the composting process for up to 12 months. Residual waste should not be allowed to accumulate on site and must be removed once fortnightly to another licenced facility.
4.4 On 15.06.20 EPU were asked, "I've gone back to the applicant for more information, as it appears that they are seeking lawfulness not just in relation to brining non-green waste onto the site, sorting it and exporting it (i.e. being a waste transfer station) but also to crushing it. Would crushing of rocks/bricks etc. be in breach of their waste management license (as it is not in the listed processes)?" and responded, "Screening authorized under current licence and screening of limited Construction & Demolition wastes under previous, but not crushing".
4.5 In response to the applicants comments of 02/07/20 EPU were asked for further comment to confirm if they would provide the assurances suggested. They responded on 04.08.20 and stated, "I can confirm that since I have been in post from September 2017, the site have been crushing a mixture of stones, hardcore material and processing soils. In 2008 as a variation to the 2006 licence, hardcore and stones, soils where inserted to the licence but does not detail the Recovery Codes R1 to R13 which would indicate that crushing has been occurring from then in terms of waste licencing. I have checked for photographs but unfortunately there aren't any. There is no other reference within the folder towards the site has been crushing from 2009 onwards".
5.0 OTHER REPRESENTATIONS 5.1 Peel Commissioners (26.05.20) state, "The Commissioners' Board minutes record compositing work being undertaken at the Ballaneven Compost site off Poortown Road in St Johns in 2007. I hope these contemporary and formally approved document assist in the determining of this application".
5.2 It was noted that there was an error in the description and this was highlighted in an e- mail to both Peel commissioners (on the 15th June 2020) and German Commissioners (0n the 06.08.20) which also sought confirmation of no further comments. No comments have been received at the time of writing (06.08.20).
types (Waste from agriculture, horticulture, forestry, hunting and fishing, Wastes from wood processing and the producing of panels and furniture, Waste packaging (including separately collected), Concrete, Bricks, Tiles and Ceramics, Wood, soil and stones, Soil, stones and dredged spoil Waste from Waste Water Treatment Plants, Wastes from the preparation of water intended for human consumption or water for industrial use, Garden and park wastes and Other municipal wastes); and processes (the sorting, storage, shredding, screening and composting of waste).
6.2 It is understood that waste licences are issued under the Public Health Act and Collection and Disposal of Waste Regulations 2000 and generally a variation in a waste licence does not vary a planning approval, this would need to go through the planning approval process. However, this is very relevant for consideration of the certificate of lawfulness
WASTE TYPES 6.3 On the balance of probabilities it is considered that the site has been accepting material which is not organic - noting the license and returns. The planning approval is for an organic composting facility and there are no conditions relating to waste types/amounts. The key question is therefore whether the types of material brought onto the site, the amounts and the way they were brought on (i.e. in mixed loads) and the frequency were sufficient to demonstrate a continuous and material change of use beyond that provided for in the
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approval, noting that it would not be unusual for a composting facility to at least on occasion accept mixed loads, to screen/sort and then remove from site non-conforming waste.
6.4 The information suggests that on the balance of probabilities the site has been accepting an average 5,000 tonnes per annum of Soils/Bricks/Ceramics, River Gravels and Street Cleaning Residues (although noting that a proportion of these waste may be organic and so in accordance with the approval).
PROCESSING 6.5 It is accepted that the waste brought onto the site has been subject to processes including sorting, storage, shredding, screening and composting. The question of crushing is more complex.
6.6 The waste returns provided indicate various tonnages (see notes on-line).
6.7 The above would suggest a mean average of crushing of 901 tonnes per year (based on the % processing information provided by the applicant). However, there is no specific evidence to support these %s and it should also be noted that for 2 years there are no figures and that figures vary considerably between years. No split is provided to be able to determine the proportion crushed on-site vs off-site. No split is provided for the proportion stockpiled for re-use on site rather than sold, or how much of this was stockpiled without being processed.
6.8 It is noted that the area identified where it is taking place would be phase 3 of the compost area and the information from Quest says Ballaneven rented their equipment so not kept on site all the time.
6.9 In relation to crushing it is not considered that there is sufficient information to demonstrate that on the balance of probabilities that commercial crushing for sale has been happening at the site on a continuous/frequent basis and at sufficient volumes for a period of 10 or more years.
6.10 It is noted that the affidavit from Mr R. Kneen states that following the fire in 2014, "The entire stock of processed and unprocessed stone and demolition waste was utilised to facilitate the work of repairing the fire damage to the works such works taking 2 years to complete. Following this the stone and demolition waste began to be stockpiled in relation to works to phase 2 of the site".
6.11 While insufficient evidence has been provided to confirm waste has been imported, processed and sold from the site there is evidence that as part of the legitimate business of the site C&D waste has been brought to the site as part of loads of mixed waste and has been sorted and processed for use in Phases 2 and 3 of PA 04/01725/B and 16/00976/B.
7.0 CONCLUSION 7.1 It appears that as an incidental element of the primary use of the site as an organic waste composting facility, that other waste streams have been brought to the site and processed. This element appears to have some extent intensified in perhaps the last 5 years.
7.2 Based on the information from the applicant (but without clear evidence for % crushed) approx. 900 tpa is crushed. What is not clear is how much of this is crushed and then used on site and how much of the material crushed on-site is then sold. The former use would be lawful in terms of implementing the planning approvals and/ or site management and the latter appears to be taking place at a level which would be incidental to the overall use of the site. Incidental uses are generally not breaches of planning control and in this instance is not considered to be an appropriate basis for the issuing of a certificate of lawfulness.
8.0 RECOMMENDATION
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8.1 It is recommended that a certificate of lawfulness is issued for o 5,000 tonnes per annum of Soils/Bricks/Ceramics, River Gravels and Street Cleaning Residues being brought onto the site; o the waste brought onto the site being subject to processes including sorting, storage, and screening (but excluding crushing as a primary process); o as part of the legitimate business of the site of composting organic waste, elements of the above waste has been sorted and processed within the area hatched in blue on the submitted plan (Page 8, Suporting Information Part 2 on-line) for use in Phases 2 and 3 of PA 04/01725/B and 16/00976/B and for general maintenance of roads within the site. __
I can confirm that this decision has been made by a Principal Planner in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded Interested Person Status.
Decision Made : Certificate of Lawful Use/Devel Approved
Date: 16.12.2020
Determining officer Signed : A MORGAN Abigail Morgan
Principal Planner
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