The first notice claimed that the sand was being extracted below the depth specified in the permission. This meant that it breached the water table and allowed pools to be formed on the site. The appellant conceded that excavation below the permitted depth had taken place but asserted that this had occurred for more than ten years. He added that the holes were immune from enforcement action and even if they were not he could not identify them from the notice.
The inspector deemed it unreasonable to expect the council to identify every hole dug below the permitted level. In his view, it was sufficient to identify the broad area and the steps required were clear - to backfill the holes with mineral or mineral waste. The appellant had not proven that they were immune from enforcement and the appeal had to fail, he held.
The second notice alleged that sand was being mined outside the permitted zone across an area of 2ha. The appellant claimed that the notice was a nullity because it failed to specify precise areas in the 2ha site. He argued that extraction had occurred for more than four years and was thus immune from action.
The notice could only be a nullity if it lacked a specific requirement or date for compliance, the inspector decided. The appellant's claim that it did not define in detail the area that had been worked could easily be answered by attaching an additional plan without causing any injustice, he found. It is not in the public interest to set the nullity test at a low level because this would waste time and money, he remarked.
The appellant did not appear at the inquiry to support his claim that extraction was immune from enforcement. Neither was there any evidence on sales of the sand or working methods. The inspector considered that reliance on aerial photographs was too uncertain and noted that officers' visits to the site suggested that extraction had occurred in the past four years. He concluded that the notice should stand and the steps required were fair.
DCS Number 100-069-446
Inspector John Whalley; Inquiry