Clay for today... and tomorrow?

Clay Technology magazine
12 Jun 2011

Industry must stand its ground in the UK Coalition Government’s radical review of the ground rules for planning, says Chris Hall, Commercial Director for the British Ceramic Confederation

The heavy clay industry consumes about five million tonnes of raw materials – predominantly common clays and shales – every year. This is a very small part of the total minerals consumption in the UK. Clay is plentiful, is usually extracted at or near the production site, and its environmental impact is limited. Planning laws and environmental regulation prescribe conditions for extraction.

Over recent years, two major campaigns have been fought to ensure the security of supply needed to support continuing investment. The industry has devoted considerable resource and effort in contributing to detailed research undertaken for the then Department for Transport, Local Government and the Regions (DTLR) by the British Geological Survey. Brick Clay: Issues for Planning (2001) supported the case for separate planning guidance for brick clay. As a result, Minerals Planning Statement 1 Annex 2 (MSP1 Annex 2) contains clear and detailed instructions for planning authorities, stipulating that development plans should provide a stock of permitted clay reserves to support the levels of actual and proposed investment suggested for each new or existing manufacturing plant, and the maintenance and improvement of existing plant and equipment. This will normally provide for 25 years of production.

Even more recently, the Mining Waste Directive, regarded by many as another unwelcome and unnecessary intervention from Brussels, has added a further layer of environmental control over a benign activity already well regulated under the planning regime and other legislation. However, industry efforts have ensured that, in this context, clay is recognised as an inert material whose extraction produces little, if any, waste and has minimal adverse environmental effect.

As a result, submission of a satisfactory Extractive Materials Management Statement to the Environment Agency eliminates, in most cases, the need for an environmental permit. This has been accepted as an inelegant but largely satisfactory solution.

But the Coalition Government is about to turn the planning system on its head in the most radical reform for many years. The Localism Bill will redefine the ground rules for development planning and planning decisions. A new National Planning Policy Framework will sweep away all existing planning policy and guidance and replace them with a simpler set of principles. The comfortable position the industry has recently achieved through its own efforts seems to be suddenly under threat.

Local agenda

Minerals planning can be regarded as a county matter and is excluded from the scope of most of the planning provisions in the Localism Bill. Nevertheless, the Bill will have both a direct and indirect impact on abstractive operations in at least three ways. It abolishes Regional Strategies, many of which contain policies prescribing or encouraging planning authorities within the region to adopt a strategic approach to brick clay provision. This can be important where manufacturers rely on cross-border supply, particularly of scarcer clays such as Etruria Marl.

The Bill also contains provisions designed to increase the influence of local communities over planning decisions in their area, by allowing neighbourhood forums to initiate development orders, development plans and community right-to-build orders. Although these will not include minerals developments, it is unclear how any conflict between the competing interests of minerals and other developments will be resolved.

The new provisions, at the very least, are likely to heighten expectations of local influence in decisions on minerals matters. And the Bill will introduce a new requirement for developers to consult with local communities before submitting a planning application for certain types of development.

National Planning Policy Framework

Of far greater consequence will be the introduction of the National Planning Policy Framework. The Government has indicated that the current review of planning policy will consolidate all policy, guidance and circulars into a single document, which will be ‘localist’ in approach, handing back power to local communities to decide what is right for them. This approach does not fit well with matters such as minerals planning, which is determined at county or unitary authority level.

Planning policy and guidance for authorities is currently contained in a library of documents and circulars. Minerals Policy Statement 1, and its accompanying practice guide, comprise over 70 pages, of which six are specific to brick clay. If the National Planning Policy Framework is to comprise 150 pages in total, as has been tentatively mooted, then clearly brick clay runs the risk of being given short shrift.

So what is to be done to protect the industry’s position in the face of such a radical onslaught? The first positive is that Government appears to be in listening mode. Within the Localism Bill is a clause putting the onus on local authorities and other bodies to cooperate in planning sustainable development. The clause, as drafted, implies its application should focus particularly on infrastructure planning. However, the vacuum left by the abolition of Regional Strategies for strategic planning at sub-regional level for transport, minerals and waste has been highlighted by two Government select committees, and the Government has indicated its intention to address this issue.

There has also already been extensive discussion between industry, not least the minerals sector, and the department for Communities and Local Government (CLG), on the shape the Framework might take. The first draft document is likely to emerge in the summer, at which point formal consultation will begin. The second positive is that the Government is committed to favouring sustainable development at the heart of the planning system and including a presumption of this within the Framework. It appears that, where local plans are silent, the presumption will be the default position. And a test of soundness will prevent local plans from negating it.

Key requirements for clay

Development of the Framework is at an early stage, and many questions about how the simplified approach will work in practice remain unanswered. But against this background, the industry has a good opportunity to ensure that the Framework is fit for purpose.

There are a number of key considerations. The most important is that the main provisions contained in MPS1 Annex 2 relating to brick clay must be preserved in some form. So too, must be the principles for effective safeguarding of brick clay and other minerals resources, which have been enshrined in the, as yet, unpublished guidance produced by the British Geological Survey with industry assistance. This message has already been conveyed to and understood by CLG.

The duty on local authorities to cooperate must also extend to minerals planning to ensure that cross-border supplies continue to flow. And minerals extraction for the heavy clay industry must be recognised as sustainable development.

Changing tides

Reference has already been made to the problematic interface between planning and environmental regulation affecting minerals extraction. This is likely to be highlighted by the anticipated developments in abstraction and use of water.

Measures in the Water Act 2003, which require abstraction licences to dewater quarries, have not been implemented. The potential conflict between the duration of such licences and planning permission for quarries remains unresolved. However, the Department for Food and Rural Affairs (Defra) has indicated that it will bring water abstraction licences under the Environmental Permitting Programme once the necessary primary legislation is in place. Moreover, Defra indicated some time ago that the Water White Paper, due for publication later this year, is likely to include consideration of environmental damage from abstraction and the fitness for purpose of the current abstraction licensing system.

Water abstraction and use has been fairly low on the list of concerns for clay extraction operations. Maybe the tide is about to turn.

Further information

Chris Hall, Commercial Director, British Ceramic Confederation, Federation House, Station Road, Stoke on Trent, ST4 2SA. Tel: 01782 744631. Email: