Sunday, December 3, 2023
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You really could not make it up


The water-filled hollow large enough to be classified as a reservoir

The latest chapter in the sorry saga of Marlbrook Tip sees laden lorries returning to the Green Belt beauty spot with full loads, yet the authorities charged with drawing it to a close appear to be nowhere near finding an ending and the story is beginning to repeat itself. We try to make sense of the latest plotlines . . .

The meeting of the Marlbrook Tip cross-party working group – the first since September 2017 –  included parish, district and county councillors, residents, members of Lickey Community Group, and representatives of the Environment Agency (EA), which has responsibility for the site under the Reservoirs Act.

Proceedings began with an update from Tony Deakin, Reservoir Safety Manager for the Environment Agency, who reported that the EA had carried out a site survey and shared the results with Liberty Construction, which owns the tip – and had also recovered the costs of the survey from Liberty.

Mr Deakin also said that the EA had interviewed the tip’s owner under caution in July, to collect evidence as part of an ongoing process.

He said that during the summer the EA had carried out a cost/risk analysis for several options – including seeking planning permission, carrying out the work required themselves, decommissioning the reservoir, or doing nothing.

“We made another visit on December 7 with a geotechnical engineer and our panel engineer, and are awaiting their report. The initial findings are that the reservoir is still safe and no urgent action is needed.”

Martin Quine, the EA’s Waste Team Leader for Worcestershire, added that he had also attended on December 7 to inspect waste that had been imported. “It was in line with the permit, apart from one load that contained contaminated material, small fragments of metal and plastic. We asked the permit holder to explain those issues, and there will be another inspection in six to eight weeks.”

Resident Charlie Bateman asked whether consideration had been given to using some of the already overtipped material to complete the required work.

Mr Deakin replied: “We have discussed this before. The restoration soil is required to cover up the clay. The site as it stands can’t be reshaped, as this could expose the core. It’s not an option.”

Resident Roy Hughes asked why the owner had started bringing material on to the site, pointing out that lorries were going up and down the Old Birmingham Road with full loads.

Mr Deakin responded that from the EA’s point of view, the owner was carrying out work required under the Reservoirs Act, but admitted that the owner had not provided a plan to show exactly what was being done.

As the EA had stated that only soil and stones were permitted to be brought on site under the Act, residents wanted to know if anybody was checking the loads.

Mr Quine said that the inspection report was public information, but that the EA had no concerns with the majority of waste currently on site.

Mr Quine also told residents that the EA did not and could not inspect every load, the onus being on Liberty Construction to ensure compliance.

“We look at the origin of the waste, and carry out announced and non-announced inspections,” he said.

“Each load is accompanied by a ‘duty of care transfer note’ stating origin and quantity. We also receive ‘waste returns’ from the company each quarter about the quantity imported.”

The EA’s Regulatory Officer, Val Colman, told the meeting that the last time Liberty had been required to submit a return was in October 2018, prior to them beginning the importation of waste – the next was due at the end of January. She had made a request for more copies but had received nothing yet.

Mr Quine admitted that the waste returns were produced by Liberty Construction, but said the EA would intervene if non-compliance was identified.

One resident asked: “Have you learned nothing?”, while another added: “With the history of non-compliance on this site, it surprises me that you are not monitoring the loads – I’d expect someone to be on site to ensure compliance.”

Asked: “Who is checking the checkers?”, Mr Quine said: “We will check the companies where the waste comes from, as we deem appropriate, depending on what we see on site. Previously the site owners were under an old regime, and the current licence is a variation of the old licence under which they brought in material many years ago.”

District councillor Charlie Hotham, present at the meeting as an observer, said: “The engineer said the site was stable with no need for remedial work, but you say the owner is bringing in material under the Act to benefit the reservoir – can you explain the contradictory positions?”

Mr Deakin responded: “The topsoil is required. Our initial findings were that it’s safe to the point where we don’t need to intervene, but the work needs to be done to stop the dam deteriorating in future. I’m not saying it’s unsafe today.”

Coun Hotham pressed: “But you must have an indication of how many loads are required to make it safe? You mention 68,000 tonnes – how much has already been done and how much is still to come? And how will you know when the end point has been reached? You’re waiting four months between receipt of these notes.”

Mr Deakin said that under the Act, Liberty Construction had to appoint a construction engineer, and it was that engineer who would sign off on the works and produce a final certificate.

The EA confirmed that since the lorries carry 17-20 tonnes, it would mean roughly 3,500 to 4,000 lorryloads to achieve the 68,000 tonnes.

Mike Adams, of the Lickey Community Group, asked if the EA had an audit process for the returns, and was informed that the EA looked at the waste on site visits and at the records provided by the customer, and calculated this against waste returns submitted to give an indication of whether the quality and quantity was in line with the permit.

“Jurisdiction is with Liberty as part of their permit,” said Mr Quine.

At this point, Kieron Finney, an environmental consultant working for Liberty, said: “I have written an environmental management system document and there are a lot of procedures that should be followed. Martin has said he’ll be on site in six to eight  weeks but I think it needs to be earlier, as Liberty do need help to follow the systems.”

Residents expressed concerns that a topographical survey due to be carried out at the end of the process might come too late to prevent overtipping, but the EA would not be drawn on what, if any, action would be taken if this were to be the case.

District councillor Helen Jones (Catshill North) asked whether there was a maximum depth for the restoration material, since a minimum of 300mm had been specified. The EA replied that it depended on how Liberty decided to carry out the work: “They may follow the lie of the land, or try to re-profile and take out any bumps. If there’s a dip, it might need 500mm in that spot.”

Ruth Bamford, Bromsgrove District Council’s Head of Planning & Regeneration, clarified that the owner was asked under the Act to import restoration material to a depth of 300mm across the site.

“I am crystal clear that importation of that material needs planning permission, but this has not been sought so far,” she said. “Planning permission would give us, at local level, control of the amounts and the justification for doing it, especially in the green belt. A monitoring regime could address issues such as lorry movements.”

She continued: “We have served a planning contravention notice, which asks questions like what’s going on and why, to get a feel of what’s happening, and also a temporary stop notice, as of 9am today – so if lorries came to site it would be at odds with this.

“You may ask, why temporary and not permanent? The planning authority can’t discuss its next movements but we’re pondering, including liaison with the owner, the EA and relevant bodies.”

District councillor Brian Cooper (Marlbrook) asked: “How can the EA allow tipping when no planning consent has been applied for? Surely the law should apply to everyone.”

Mr Deakin responded: “We were informed by Liberty that they believed they had obtained all relevant permissions.”

This caused considerable surprise among most present at the meeting.

Ms Bamford continued: “The temporary stop notice lasts 28 days. After that, I’m not prepared to say. We are looking into what would be the appropriate thing to do next.”

A resident asked, “If there is no planning permission at the moment, how can the waste management licence be valid?”

Mr Quine said that the the two were not inextricably linked: “You can have an environment permit without planning permission, you can comply with the permit in breach of planning law.

“The permit doesn’t override the need for planning permission – the owner has taken the active decision to import waste without obtaining it.”

Mr Adams remarked: “The owner is doing exactly what he wants. Does the fact he hasn’t got planning permission mean no one is in control?”

Ms Bamford replied: “I’m not a lawyer, but there are two sets of regimes in operation. Under reservoir legislation, the owner was asked to bring material. In another world over here, he has the planning regime to tackle. But he has to get planning permission to comply with what the Act is asking him to do.“

Mr Adams also wanted to know whether there was a time limit for moving the material, or a penalty for not doing so.

Ms Bamford told him: “It could well be that under reservoir legislation there is a need to be doing something, but in my world he has not got planning permission, it’s that simple.

“I’ve asked him to stop temporarily, to give give chance for discussions and better understanding of what’s going on and why. The circle has to be squared to make sure the planning regime is complied with.”

A Lickey resident said that he was astonished at the situation: “We’ve sat in all these meetings, and you know the strength of feeling among residents and you [BDC and the EA] are not even talking to each other; it’s laughable!”

Coun Hotham said it seemed “a big coincidence” that the temporary stop notice had only come into force that very day.

“What changed yesterday to make it relevant now, but not in October when I asked about it?

“I’ve lost faith in the site engineer as the provision of planning permission was crucial – how could he not know it didn’t exist? Can we revoke the permit as the owner must be in breach?”

Mr Deakin replied that there were no legal grounds to revoke the permit.

Ms Bamford pointed out that the contravention notice was also important as it would help shape BDC’s next move. “If it ends up that tipping is not given permission, we’d have the reasons in place.”

Resident Sue Hughes wondered: “If planning permission is denied, would the material brought in since October be removed?”

Ms Bamford said this was unlikely as “it would not be in the public interest. We can’t take action just to make the public feel we’re doing something.”

The EA added that if planning permission was denied, it would be appealed.

Mr Deakin cited the safety of the site and reservoir: “Currently some clay is exposed, so vegetation could grow and water could seep out. It’s safe at the moment but I can’t say what will happen in future. We have to work together for a solution.”

The meeting closed with a decision to hold the next one on March 21.