Decision preventing,resumption of mineral working — Jurisdiction to make such order — Secretary of State accepting that no mineral workings occurring in previous two years “to any substantial extent” — Whether failure to give reasons — Matter remitted for redetermination
By an order made by Dartmoor National Park Authority under section 102(8) and para 3 of Schedule 9 to the Town and Country Planning Act 1990, the owners of Blackingstone Quarry were prohibited from resuming mineral working on the land. The applicant thereafter purchased the land and objected to the order. The Secretary of State, in accepting his inspector’s recommendation, stated that he accepted that no mineral workings had occurred to any substantial extent at the site for 3; period of at least two years prior to the date of the order. He had also accepted the evidence of the park authority at the order date that resumption of working of minerals to any substantial extent was unlikely. The inspector had expressly refused to take into account evidence of events which had taken place after the date of the order during which time the applicant had purchased the quarry and had begun to carry out work there.
Held: Matter remitted to the Secretary of State for redetermination.
1. It followed from section 1 of the 1990 Act that the county council became a “Mineral Planning Authority” within the meaning of para 3 of Schedule 9 to the 1990 Act in their capacity as a planning authority. Their functions were to be discharged by National Park Authority (in accordance with para 5 of Schedule 17 to the Local Government Act 1972) so the order was valid and not defective for want of jurisdiction.
2. The provisions of para 4(1) of Schedule 9 to the 1990 Act did not require that the Secretary of State consider different criteria than those to be considered by the min- eral planning authority under para 3 of the Schedule.
3. In his letter the Secretary of State failed to indicate what he understood by the term “substantial”. What was meant by “substantial extent” was a matter of law which varied depending on its particular statutory context. In the present case it meant more than de minimis and more than “material”, which term was a readily recognisable test found in the planning legislation for identifying whether planning permission was needed. Substantial as so defined must then be measured by comparison with that scale of working which might be undertaken in accordance with that which the prohibition order countermanded.
4. Nothing in the letter indicated what the Secretary of State understood the term substantial to mean nor did it explain why the scale and extent of the workings undertaken by the applicant were not to be treated as substantial. The Secretary of State was not expected to attempt to define the term substantial but he should have given a sufficient description of what he thought likely and compared it with some measure or indication of substantiality in order to make his thought processes clearer. He failed to do so and his decision was therefore deficient in reasons.
5. That deficiency caused substantial prejudice to the applicant, given that the Secretary of State had accepted that working had taken place and some would be likely to continue. The decision would be remitted for redetermination in order that there would be proper reasons for the conclusion.
Robert Fookes (instructed by Tozers, of Exeter) appeared for the applicant; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Devon County, did not appear and were not represented.
Aviva Golden, barrister
