Quarry site – Minerals – Opencast mining – Respondent and interested party obtaining planning permission for extraction of fluorspar – Those parties subsequently working and winning limestone – Second appellant national park authority issuing enforcement notice – Inspector appointed by first appellant secretary of state dismissing respondent’s appeal – High Court remitting case for redetermination – Whether winning and working of limestone falling within earlier planning permission – Whether development under previous permission covering limestone operations – Appeal allowed
In 1952, the minister of housing and local government granted planning permission for the extraction of fluorspar on a site in a national park. In May 2006, the second appellant park authority issued an enforcement notice, under the Town and Country Planning Act 1990, alleging a breach of planning control by the winning and working of limestone other than in accordance with the 1952 permission. The enforcement notice related to around 12ha (approximately 30 acres) covered by that planning permission.
The respondent freeholder of the site and its lessee (the interested party), which was operating on the land, appealed against the enforcement notice to the first appellant secretary of state. A public inquiry was held by the first appellant’s inspector, who upheld the enforcement notice, although with a variation in its terms. The main reason for that decision was that the ratio of limestone to fluorspar should not have exceeded 2:1. The respondent appealed under section 289 of the 1990 Act.
Two main issues emerged for determination: (i) what was the correct interpretation of the 1952 permission; and (ii) whether the the interested party’s operations in respect of the limestone came within the meaning of development permitted by that permission. That required a determination of the meaning of “winning” and “working” in the context of planning law. The High Court allowed the appeal and ordered that the matter be remitted to the secretary of state for redetermination. The court construed the 1952 permission as meaning that the interested party could win and work any limestone, the removal of which was reasonably necessary for the winning and working of the specified minerals. The judge concluded that the limestone could be sold commercially rather than being treated as waste. He also criticised the adoption of the 2:1 ratio to determine whether the operations regarding limestone had exceeded what was allowed under the permission.
The appellants appealed. They argued that the winning and working of limestone on the appeal site fell within the terms of the 1952 permission and therefore did not breach planning control.
Held: The appeal was allowed.
In interpreting a planning permission, the general rule was that, in the absence of ambiguity, regard might be had only to the planning permission, including any conditions and the express reasons for such.
The wording of the 1952 planning permission should be regarded as being deliberate and meaningful and there was no basis for treating it as having been loosely worded. The sequence of the words “winning” and “working” suggested the opposite, since the operative part began by using them together and went on to use them separately and distinctly.
The concept of “winning” a mineral involved achieving access to the desired target mineral and “working” referred to the process of removing that mineral from its position in the land. Any minerals, whether limestone or other rocks that had to be removed in that process, were not being worked in the sense used in planning law. The host rock on the site, whatever it was, might have to be removed in substantial quantities from its original location, but it was not being won or worked. It had to be treated as waste and disposed of accordingly. The mere fact that it could have a commercial value did not take it outside the scope of the condition relating to waste disposal in the 1952 planning permission. Since the respondent had failed to establish that the limestone operations were covered by the planning permission, the enforcement notice had to be upheld: English Clays Lovering Pochin & Co Ltd v Plymouth Corporation [1974] 1 WLR 742 applied.
With regard to the 2:1 ratio, the inspector had not used it as a “stripping ratio”, comparing how much limestone could be removed from its original resting place in order to win and work the fluorspar. Since the limestone that had been removed to gain access to the fluorspar had not been won and worked and could not be exported for sale, those quantities of limestone were not to be included within the 2:1 ratio. There was, therefore, nothing inherently impractical in the ratio adopted by the inspector, which used as a device to guide him in determining whether more limestone had been won and worked and exported for sale than was permitted. The fact that the respondent and the interested party had not had an opportunity to address the ratio did not amount to procedural unfairness: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18; (1976) 240 EG 859 applied.
Timothy Morshead (instructed by the Treasury Solicitor) appeared for the first appellant; Robert McCracken QC and Gregory Jones (instructed by the legal department of the Peak District National Park Authority) appeared for the second appellant; Timothy Jones and David Park (instructed by Bremner Sons & Corlett, of Liverpool) appeared for the respondent; Craig Howell Williams and Richard Honey (instructed by Marrons, of Leicester) appeared for the interested party.
Eileen O’Grady, barrister
