Quarrying, contaminated land and bromate pollution: mineral rights

In an interesting sequel to a well-known contaminated land case, or perhaps rather a chapter in an ongoing saga, Hertfordshire County Council has – contrary to the advice of its planning officers – refused an application for planning permission to develop a sand and gravel quarry on the former Hatfield Aerodrome site: see ENDS Report 29 September 2020.

The site was identified for quarrying in the Council’s minerals local plan, and proposals by developer, Brett Aggregates, had been under consideration for some time. While the decision notice has not yet been published, it seems that the key issue was the potential impact on a plume of bromate pollution.

The former aerodrome is a few kilometres from the St Leonard’s Court housing estate. St Leonard’s Court was built on land previously used for a chemicals factory, the source for an approximately 20 kilometre plume of bromate in the surrounding groundwater. The land was declared contaminated in 2002, leading to long-running disputes around remediation involving two companies, Crest Nicholson and Redland Minerals. These included an appeal to the Secretary of State, an inquiry before a planning inspector and unsuccessful attempts to judicially review the Secretary of State’s decision following the inspector’s recommendations (see R. (on the application of Crest Nicholson Residential Ltd) v Secretary of State for the Environment, Food and Rural [2010] EWHC 561 (Admin) and R. (on the application of Redland Minerals Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2010] EWHC 913 (Admin)). Despite remediation having been ongoing for some years, the plume of bromate remains, illustrating the intractable nature of groundwater pollution (as we noted in an earlier update).

While Brett’s application for the Hatfield site had led to significant local concerns, the Council’s planning officers were satisfied that steps could be taken to avoid contamination from the bromate plume spreading: see ENDS Report 22 November 2019. The Environment Agency had also concluded that the risks could be managed, including through a water monitoring and management plan, a condition supported by the statutory water undertaker for the area, Affinity Water.

Nonetheless, strong objections remained, including from Welwyn Hatfield Borough Council, the local MP and residents’ groups. As reported in the local media, residents were particularly concerned about the source of the contamination being bromate, a known carcinogen, and about the possibility of it spreading into the quarrying site and the water supply.

In addition to the bromate issue, the Council is reported to have considered that the development’s impact on the green belt, air quality and traffic, as well as the cumulative effects of quarrying in the area, outweighed its benefits. An appeal to the Planning Inspectorate may be in the pipeline: Brett has commented that it will be examining the Council’s reasons and considering its options over the coming weeks.

Whatever happens next, the story to date demonstrates the particular problems caused by groundwater pollution, and the broad and long-running impact such contamination can have. The bromate entered the groundwater around the land at St Leonard’s Court in the 1980s and was identified in 2002. Its effect on nearby sites, as well as on developments such as that proposed by Brett, looks likely to continue for some time.  The case perhaps also highlights a new angle on liability for contaminated land, namely the possible impact on owners of mineral rights. Any claim in tort by a mineral rights owner against a party causing contamination would raise some very interesting legal issues.

Text references: paras 4.36, 5.10, 5.17 and 5.115.


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