Inspector recommending grant of planning permission for opencast mining – Secretary of State adopting inspector’s recommendations without qualification – Development plan being modified by time of Secretary of State’s decision – Whether Secretary of State acting beyond powers of Town and Country Planning Act 1990 – Application allowed
The second respondent, RJB Mining (UK) Ltd sought planning permission for opencast coal extraction at Shortwood Farm, Nottinghamshire. Shortwood Farm lay within the green belt. The proposal was for the extraction of 1,800,000 tonnes of coal for transportation to Bennerley disposal point. RJB also applied for the variation of a condition to the planning permission relating to Bennerley disposal point, in order to retain the site for a further 10 years. The mineral planning authority (the applicant) refused both applications. RJB appealed and the two appeals were dealt with jointly at a 1997 inquiry. The inspector considered the relevant structure plan, development plan and emerging minerals local plan policies in his report and recommended that permission should be granted. By a decision letter of 28 June 1998, the Secretary of State adopted the report and recommendations of the inspector, without alteration or additional reasoning.
During the interval between the inquiry and the Secretary of State’s decision letter, the development plan was modified by the adoption of the minerals local plan. The applicant appealed, pursuant to sections 287 and 288 of the Town and Country Planning Act 1990, on the ground that the Secretary of State had acted beyond the powers of the Act in adopting the inspector’s report without qualification. The applicant contended that the Secretary of State had failed to determine the appeals having regard to the development plan as it stood at the time of his decision. The Secretary of State conceded that the decision letter was flawed in light of that submission and should be quashed. However, RJB submitted that the text of the policies in the emerging minerals local plan had remained in identical terms at the time of the Secretary of State’s decision letter. It was submitted by RJB that the inspector’s report had meticulously analysed, and given considerable weight to, the emerging policies. Therefore, the Secretary of State’s determination was made on identical policies, and could not be challenged.
Held: The application was allowed.
The Secretary of State was required to determine the appeal in accordance with the development plan policy as it existed at the time of his decision letter. Although the text of the policies had not altered, save for immaterial numbering differences, it was clear from the inspector’s report that the emerging minerals local plan policies were less favourable to the applications than the structure plan policies. In so far as there was any conflict between the more liberal structure plan policies and the more stringent emerging plan policies, the latter prevailed, once they had been adopted by the development plan. Applying the test in Simplex (GE) Holdings v Secretary of State for the Environment [1988] 3 PLR 25, the court could not be satisfied that the Secretary of State would have reached the same decision had he considered the emerging plan policies as well as the structure plan policies. Even if it could have been implied that the Secretary of State had had regard to the changed status of the development plan, the reasoning in the decision letter was inadequate.
Timothy Straker QC (instructed by Sharpe Pritchard, London agents for the solicitors to Nottinghamshire County Council and Broxtowe Borough Council) appeared for the applicants; Philip Sales (instructed by the Treasury Solicitor) appeared for the first respondent; Clive Newberry QC (instructed by the solicitor to RJB Mining (UK) Ltd) appeared for the second respondent.
Sarah Addenbrooke, barrister