R (Bleaklow Industries Ltd) v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
JudgeLord Justice Keene,Lord Justice Goldring,Lord Justice Pill
Judgment Date18 March 2009
Neutral Citation[2009] EWCA Civ 206
Docket NumberCase No: C1/2008/0872 & C1/2008/0881
CourtCourt of Appeal (Civil Division)
Date18 March 2009

[2009] EWCA Civ 206

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

(Mr Justice Sullivan)

Royal Courts of Justice

Strand, London WC2A 2LL

Before:

Lord Justice Pill

Lord Justice Keene and

Lord Justice Goldring

Case No: C1/2008/0872 & C1/2008/0881

CO/4270/2007

Between
(1) The Secretary of State for Communities & Local Government
Appellants
(2) Peak District National Park Authority
and
Bleaklow Industries Limited
Respondent
MMC Midlands Limited
Interested Party

Timothy Morshead (instructed by The Treasury Solicitor) for the Appellant (1)

Robert McCracken QC & Gregory Jones (instructed by Beverley Primhak, Peak District National Park Authority) for the Appellant (2)

Timothy Jones & David Park (instructed by Bremner Sons & Corlett, L1 6DH) for the Respondent

Craig Howell Williams & Richard Honey (instructed by Marrons, LE19 1WY) for The Interested Party

Hearing dates: 10 & 11 February 2009

Lord Justice Keene

Lord Justice Keene:

Introduction:

1

The extraction of minerals often gives rise to contentious planning issues, especially where the extraction takes the form of opencast mining. Such mining may have a significant and adverse effect on the landscape, and that problem may be exacerbated where, as not infrequently is the case, the minerals are located in an area of importance in landscape or leisure terms. Yet the minerals can only be extracted where they are located and they may well be of considerable value to the national economy.

2

The present case is one where such a conflict of interests exists, though the court is not concerned with reconciling that conflict. Within the Peak District National Park is the principal source of supply of fluorspar, a mineral once important in steelmaking but now mainly used in the chemical industry. In 1952 the Minister of Housing and Local Government granted planning permission for, principally but not exclusively, the extraction of fluorspar and barytes (an associated mineral) on a site of about 155 hectares (383 acres) near Hassop in Derbyshire. On 5 May 2006 the Peak District National Park Authority (“the Park Authority”) issued an enforcement notice under the Town and Country Planning Act 1990 (“the 1990 Act”), alleging a breach of planning control by the winning and working of limestone other than in accordance with the 1952 planning permission. The enforcement notice related to part of the area covered by that planning permission, a part some 12 hectares (about 30 acres) in extent and named on some plans as Backdale. Both the freehold owner of this particular area, Bleaklow Industries Limited (“Bleaklow”), and their lessees, MMC Midlands Limited (“MMC”), who were operating on the land, appealed against the enforcement notice to the Secretary of State for Communities and Local Government.

3

A public inquiry was held over 10 days by an inspector appointed by the Secretary of State. By a decision letter dated 26 April 2007 the inspector upheld the enforcement notice, though with a variation in its terms. Bleaklow appealed under section 289 of the 1990 Act against that decision. Such an appeal lies only on a point of law. By a judgment dated 7 March 2008 Sullivan J allowed the appeals and ordered that the matter be remitted to the Secretary of State for re–determination. The Secretary of State and the Park Authority now appeal against Sullivan J's decision.

The Issues:

4

Bleaklow and MMC appealed to the Secretary of State against the enforcement notice under grounds (b), (c) and (f) of section 174(2) of the 1990 Act, that is to say, that the matters alleged in the enforcement notice had not occurred (ground (b)); that those matters (if they had occurred) did not constitute a breach of planning control (ground (c)); and that the steps required by the notice to be taken, or the activities required by it to cease, exceeded what was necessary to remedy any breach of planning control (ground 'f'). Their appeal succeeded on ground (f), with the inspector varying the requirements of the enforcement notice so that it required the cessation of “the winning and working of limestone other than the working of such limestone as is won in the course of working fluorspar and barytes”.

5

But the appeal on grounds (b) and (c) failed. Those grounds in essence were to the effect that the winning and working of limestone on the appeal site, which had indeed been taking place, fell within the terms of the 1952 permission and so were not in breach of planning control. These grounds gave rise to two main issues: first, what was the correct interpretation of the 1952 permission; and, secondly, did the operations carried out in respect of limestone come within that meaning of the development permitted by that permission? That second, largely factual, question had to relate to the period of four years prior to the issue of the enforcement notice on 5 May 2006, because mining operations are classified as operational development, not a change of use of land, and each act of extraction constitutes a separate act of development: Thomas David (Porthcawl) Limited v. Ponybont Rural District Council [1972] 3 All E.R. 1092. In fact the operations carried out on the appeal site by MMC had begun in July 2003, and so in reality it was what had happened on that site between then and 8 May 2006, when a stop notice was served, that the second issue concerned.

The 1952 Planning Permission:

6

This permission was granted by a decision letter dated 24 April 1952. After referring to the application for permission, a report by one of his officers, and consultation with other government departments, the Minister acknowledged the location of the site within the Peak District National Park. He then stated that the reserves of fluorspar in the country were limited and that fluorspar was of importance to the steel industry, leading to his decision to grant permission. In the operative part of the decision he stated:

“The Minister has decided to grant permission for the winning and working of fluorspar and barytes and for the working of lead and any other minerals which are won in the course of working those minerals, by turning over old spoil heaps, by opencast working and by underground mining within the area shown outlined in black, excluding the area cross-hatched, on the attached plan and the tipping of waste materials on the areas shown hatched vertically on the plan, subject to the following conditions:

(1) waste material from the rake in field O.S. No. 155 shall be disposed of in the disused quarry in that field marked X on the plan;

(2) waste material from the rakes in fields O.S. Nos. 211, 233, 212, 231 and 230 shall be disposed of within those respective fields;

(3) Waste material other than that referred to in conditions (1) and (2) and other than that tipped in the areas shown hatched vertically on the plan shall be disposed of in the hollows left by old workings, in agreement with the Local Planning Authority, or, in the event of disagreement, as shall be determined by the Minister;”

The other conditions are not material for present purposes.

7

The 2006 enforcement notice was directed to the winning and working of limestone, which was not expressly mentioned in the 1952 permission, but there is no dispute that limestone falls within the words “any other minerals” in the permission. As Sullivan J recorded, the references to barytes and to lead in the permission were not relevant for the purposes of the appeal and can, to all intents and purposes, be omitted. Consequently the wording of the main part of the permission can be simplified for present purposes, in the way noted by the judge at paragraph 11 of his judgment:

“It was agreed at the inquiry that the permission had two limbs: the first granted permission for “the winning and working of fluorspar”, the second “for the working of [limestone] which [is] won in the course of working [fluorspar] by turning over old spoil dumps, by open-cast working and by underground mining …”

8

What then needs to be determined is the meaning of the words “winning” and “working”, both generally in planning law and in particular in this permission. Like the inspector, Sullivan J referred to the Court of Appeal decision in English Clays Lovering Pochin Ltd v. Plymouth Corporation [1974] 27 P. & C.R. 447. That was a case which concerned the issue of whether a plant processing china clay slurry was permitted development under the Town and Country Planning (General Development) Order 1963, Class XVIII of which permitted the erection by mineral undertakers in certain circumstances of “any buildings, plant or machinery … required in connection with the winning or working of minerals …”. Russell LJ, giving the judgment of the court, said this at pages 450–451:

“It is perhaps not necessary to be dogmatic on the point in this case: but our present view is that to “win” a mineral is to make it available or accessible to be removed from the land, and to “work” a mineral is (at least initially) to remove it from its position in the land: in the present case the china clay is “won” when the overburden is taken away, and “worked” (at least initially) when the water jets remove the china clay together with its mechanically associated other substances from their position in the earth or land to a situation of suspension in water.”

9

The court in that case seems to have recognised earlier on page 450 that sometimes the phrase “winning and working” may be appropriately used, but there seems little doubt that the court was of the view that the terms “winning” and “working”...

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