Quarrying — Order prohibiting resumption of winning and working of minerals — Secretary of State refusing to confirm order — Not satisfied that winning and working permanently ceased — Judicial review refused — Court of Appeal dismissing appeal
Ewenny Quarry was a limestone quarry near Bridgend. Quarrying took place there from the end of the 19th century. The last formal planning permission for such operations was in October 1953 and quarrying ceased in 1961. Thereafter the quarry was used for other activities, including the repair of plant and commercial vehicles for which planning permission was granted in 1977. By 1991 the council had decided to prevent the resumption of quarrying at some inactive sites. On December 17 1991 the mineral planning authority (MPA) made an order prohibiting the resumption of winning and working of minerals at the quarry. That order was made pursuant to the powers conferred by Schedule 9, para 3 to the Town and Country Planning Act 1990, which provided that the MPA might impose such a prohibition where the winning and working or depositing had permanently ceased. Notices of objection were received, including one from the owner and occupier of the quarry.
The Secretary of State for Wales appointed an inspector to hold a public inquiry. He recommended that the order should not be confirmed. The Secretary of State concluded that he could not be satisfied that, at the date of the order, it was more likely that the resumption of mineral working would not take place than that it would. He also agreed that the events which had taken place since the order was made showed that there was continuing interest by a number of firms in using material from the quarry. He accepted the inspector’s recommendation and refused to confirm the order. The council sought judicial review to quash the Secretary of State’s decision refusing to confirm the order. The High Court refused the application, but the council appealed.
Held The appeal was dismissed.
1. The MPA could not make a prohibition order unless satisfied that no winning or working of minerals had occurred, to any substantial extent, at the site for a period of two years: Schedule 9, para 3(2)(a). That meant the period of two years ending with the making of the order: para 3(2)(b).
2. The function of the Secretary of State was to treat the inquiry as an appeal and to consider all matters de novo.
3. Since the decision of the MPA under para 3(2)(b) was predictive it could be confirmed or denied by subsequent events. As relevant provisions were silent on the point the court would not construe them so as to limit the evidence which the Secretary of State was entitled to consider to matters as they existed at the date of the order unless there were no other tenable construction.
4. The Secretary of State applied the correct test and reached a conclusion which was justified. He had to deal with future probability and the likelihood of future resumption of mineral workings. Even in the absence of express evidence to plan to resume or need for those minerals (both of which matters he considered) the Secretary of State could not be faulted in his decision-making process or in the decision reached.
Anthony Porten QC and Robin Green (instructed by the solicitor to Mid-Glamorgan County Council) appeared for the council; Richard Drabble (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
