High Peak Spar Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor

JUDGE MACKIE: I am going to give an extempore judgment in the case which we have conducted yesterday and this morning.

This is an appeal under section 289 of the Town & Country Planning Act 1990 against a decision made by the Secretary of State following an inquiry to uphold an enforcement notice issued in effect by the Peak District National Park. Permission was granted by Underhill J on 17th April 2008 based on a ground of appeal that has now fallen way.

The claimants, High Peak Spar Ltd and Ernest Hinchcliffe Ltd, are in a comparatively small way of business and long-established owners and operators of a site at Smalldale Head which is I understand on the upper eastern slopes of Bradwell Moorwithin the national park.

They operate opencast mining for fluorspar under a planning consent granted in 1951 to which I will come. The national park is the only area of the United Kingdom where fluorspar is extracted. The site is operated close to a very much larger operation which has also been the subject of inquiry and of litigation.

The parties to the proceedings are, as I say, the claimants, firstly, secondly, the Secretary of State and thirdly, the Peak District National Park authority. They have been represented with conspicuous care and ability by Mr Jones for the claimants; Mr BrownQC for the Secretary of State and by Mr McCracken QC for the national park.

On 27th July 1951 planning permission was granted for the following:

On 9th December 2005 the National Park authority issued an enforcement notice, which alleged that there had been a breach of planning control in that there had been "without planning permission, unauthorised winning and working and exportation of limestone from the Land."

The planning enforcement notice should be read as a whole. It is directed to, as I say, the words which I have just read out. It refers to the fact that no valid planning permission exists for the winning and working of exportation of the limestone and, in short, is addressed to the alleged unauthorised winning and working. It does not refer to alleged failures to comply with condition 1, which I have read out.

The effect of the notice was to require the claimants to cease the winning and working of limestone and cease the exportation of limestone with a time for compliance set at one day.

The claimants appeal against the notice under section 174 of the 1990 Act. There was no appeal under ground (a) but there were appeals under (c), (d), (f) and (g). Under (c) the claimants contended that there was nothing in the general grant of permission which prevented the winning and working of limestone, in so far as this was necessary in order to win and work fluorspar and lead. They contended that saleable limestone which had been legitimately won and worked was not spoil and so did not have to be returned to the hollows in the ground under condition 1. Under (d) the claimants said that the enforcement action was time-barred. They argued that limestone had been exported from the site for more than 10 years. Under (f) they argued as follows. First, the winning and working of limestone was authorised by the consent. Secondly, it was impractical to win and work fluorspar without winning and working limestone. Thirdly, the enforcement notice made no allowance for anything that was ancillary established by 10 years non enforcement or which was de minimis. As regards (g), that is to say that the time for compliance should be extended, they contended first that because it was impracticable to win and work fluorspar without winning and working limestone, the effect of compliance would be to cease all operations. Secondly they argued, that there was insufficient time to make arrangements to stock pile the limestone, and thirdly, that the Secretary of State should have regard to the statutory duty under section 11A of the National Parks and Access to the Countryside Act 1949.

An inquiry was arranged. The pre-inquiry meeting was held before one of the Inspectors, Mr Baldock, on 13th July 2006, about which there is a disagree of controversy. An agenda was circulated. Mr Baldock sent a note to the parties and he has made a witness statement in these proceedings.

The inquiry took place in November 2006, before Mr Alan Gray assisted by Mr Stuart Reid. The inspector's report, which is of course a lengthy document, was produced on 22nd December 2006 and was effectively adopted by the Secretary of State who dismissed the appeal by decision letter dated 31st October 2008. In broad terms the inspector concluded in relation to ground (c) that the 1951 permission authorised only the winning and working of fluorspar and lead, and permitted the winning and working of limestone in so far as this was inextricably linked with the fluorspar. However the limestone which needed to be removed in order to gain access was not inextricably linked. He concluded that limestone should be considered as part of the resulting waste from the fluorspar mining and thus had to be disposed of in the areas shown on the relevant plan. He also concluded that limestone was spoilt for the purposes of condition 1 and had to be returned to the hollows.

As regard ground (d) he concluded in the words of a case we will come to "that every shovelful is a mining operation". There was no planning permission for the winning and working of limestone and the time for enforcement action started with each shovelful. Thus at no time had the extraction of limestone become lawful. So (d) failed.

As regards (f), he concluded that the steps required by the notice were not excessive. The notice did not prevent the removal of limestone which was intrinsically linked with fluorspar and nor did it prevent moving the limestone in order to reach the fluorspar. As regards (g), he concluded that no detailed evidence had been presented to show that there would be any difficulty in extracting fluorspar and lead in accordance with a consent order and time given to comply with the notice was reasonable and he dismissed that ground also.

Shortly after that the National Parks Authority was involved in another appeal in respect of the nearby land at Backdale Hassop which raised very similar questions. That inquiry lead to an appeal, which was the subject of a section 89 challenge which was dealt with by the then Sullivan J. In the course of his judgment, Sullivan J concluded that it was clear that a planning permission for winning and working fluorspar also grants permission by necessary implication to remove, ie to win and work so much limestone as is necessary to win and work fluorspar. Thus, in the light of that judgment, the appellant's ground (c) was not only arguable but was no doubt understandably concluded to have very good prospects of success.

The judgment was appealed to the Court of Appeal where it was reversed in Bleaklow[2009] EWCA Civ 206, the constitution of the court being Pill LJ, Keene LJ and Goldring LJ. The lead judgment is that of Keene LJ with which his colleagues agree. It is important to turn to that next to see the contrasting submissions and contents. One sees from paragraph 6 of the judgment that the relevant facts are not materially different between the two cases and it follows that conclusions that relate to Bleaklow apply equally to this case. Of course the judgment must be read as a whole and considered as such but I am going to refer briefly to some passages upon which the parties have placed emphasis. At paragraph 17 the Lord Justice says this:

At paragraph 26, Keene LJ encapsulates an argument submitted by Mr Jones in the following ways:

Understandably and inevitably as a result of the Court of Appeal's decision the appellants dropped (c) as a ground but maintained all the underlying criticisms of the inspector's report. So against that background, I turn to the first of the surviving grounds which is ground (d).

Mr Jones draws the court's attention to section 171(b) of the Town & Country Planning Act and to the distinctions within it between 4 years and 10 years. He identifies section 171A(1) as defining breach of planning control and he submits that the effect of Bleaklow is to make it clear that mining operations in the form of reasonably necessary removal of limestone to access fluorspar are not a breach of planning control. The breach of planning control was not an operational development under 171B(1) but in breach of condition under 171B(3), with the result that "in the case of any other breach of planning control no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach". He says the appeal under ground (d) was pursued solely in respect of the export of limestone and alleged breach of condition, it being accepted that the case of Thomas David, which I will consider in a moment, applied to each shovelful of extraction. He says that the undisputed evidence, given by the second respondent's witness, Miss Harker, that limestone had been exported for more than 10 years had made the condition unenforceable. He says extraction of limestone, with the permission would be unlawful but that limestone could be extracted because it was necessary to access the fluorspar ore and this did not involve any unlawful operation covered by the Thomas David case. He submits that the inspector wholly failed to give any reason in respect of this argument.

The reference to Thomas David is to what in planning circles I understand is the well-known case of Thomas David (Porthcawl) Ltd and Another v Penybont Rural District Council and Others [1972] WLR 1526, where the Court of Appeal, considering an appeal from the Divisional Court, was concerned with more than one matter. The unanimous view of the court seems to me succinctly and accurately set out in paragraph 2 of the headnote, which reads as follows:

Mr Jones submitted that Thomas David can be distinguished on the facts of this case. He submitted principally by reference to the genesis of the point in the discussion by Lord Widgery in the Divisional Court, that the matter was being discussed right from the outset on the basis that mining operations (as understood in that case) did not extend to the severance or removal rather than the cutting of the tubes.

Mr Brown, for the defendant, contests those submissions. He says that if the permission itself had been broad enough to permit the winning and working of limestone, then the breach of planning control would have existed only in the breach of condition 1 in respect of which immunity might have accrued after 10 years. However what the current challenge, he submits, overlooks is that the Secretary of State's decision to uphold the enforcement notice is not grounded simply on the finding that the export of limestone was in breach of condition but on the more fundamental conclusion that the claimants did not have planning permission to win and work limestone. He submits that that is a critical distinction because, if the claimants cannot lawfully win and work limestone then there is nothing other than fluorspar and some limestone inextricably mixed with it which they can sell for export from this site. He submits that the question whether any breach of condition 1 is now time-barred is academic. He submits that the conclusion is confirmed by section 54 of the Town & Country Planning Act 1990 which provides in relevant part that:

The essence of Mr Brown's submission is that the removal from the site of the limestone is not merely a breach of condition, it is also a mining co-operation for which planning permission is required for every shovel, for echoing of course Bleaklow in the Court of Appeal.

My conclusion in relation to (d) is this. It is important to distinguish between detailed points of criticism or the inspector's required and of the Secretary of State's decision on the one hand and those points most pertinent to an appeal to this court limited questions of law. The enforcement notice was directed to the breach of permission, not to the condition. It is clear to me, looking at the substance of the decision of Court of Appeal in Bleaklow, set in context that the court held that the claimant or rather their counterparts in Bleaklow did not have planning permission to win and work limestone. Mr Jones' argument is, it seems to me, a very ingenious and skillful reworking of that which failed before the Court of Appeal. The matter having not been proceeded with, I do not then deal with the submissions and counter submissions in relation to paragraph 23. The breach prevented by the enforcement notice is unauthorised winning and working and exportation of limestone without planning permission. There is no planning permission. Consideration of condition 1 therefore does not arise.

I reject the argument that Thomas David should be limited in the way which is argued for by Mr Jones. It is not a distinction that any court has made or, so far as I am aware, considered in the course of the last 37 years. The citation by Mr Jones from legislation do not seem to me provide sufficient weight to support his submissions.

So I turn to the next ground, which is ground (f). The starting point for ground (f) is a contention that the requirement to cease the winning and working of limestone and to cease the exportation of limestone is excessive. As Mr McCracken points out it is hard to see how it can now still be argued to be excessive, given the circumstances which have lead inevitably to the withdrawal of ground (c).

The position of Mr Jones on that is that while the first limb of his ground is now difficult to pursue, he submits that the inspector failed properly to address the appellant's submissions that winning and working includes processing and that that since this has continued for considerably more than 10 years, this should not be prevented by the first requirement of the enforcement notice.

Mr Brown's response to that is to draw attention to two paragraphs in the report, 151 and 152, which read as follows:

I turn next to ground (g). The ground has really three limbs but it is put as follows by Mr Jones in his skeleton argument. He refers to paragraph 156 of the report where the inspector says:

He complains about the inspector's conclusion as regards no detailed evidence. He says that the absence of fuller details resulted from a ruling at the pre-inquiry meeting by Mr Baldock that further details were not required. He says in the circumstances it would be unfair, to the point of being a decision which no reasonable inspector could come, to hold an absence of more detail against the appellants without giving them a chance to provide those details. There are also some criticisms which seem to me not to be well founded about the timing of the witness statement from the inspector. I will return to that.

Next, he says in the absence of any challenge or contrary evidence by the second respondent or the third party there was no reason why they should have added to the evidence. He also says that the inspector failed to address at all the appellants' cases he should bear in mind in respect of ground (g) the second respondent's duty under section 11(a) of the National Parks and Access to the Countryside Act 1949, which refers to the duty "to foster the economic and social well-being of local communities within the national park."

The response of the defendants to those three limbs is as follows. So far as the pre-inquiry ruling is concerned, it is submitted that there was no such ruling and indeed the extent that there is any evidence, the evidence points the other way.

So far as the suggestion that there was evidence before the inquiry that the quarry would have to close almost immediately and the sale of limestone had to stop, Mr Brown draws attention to the fact that the inspector's job was to deal with the issues that have been presented to him by the parties and he responds by reference to evidence in particular from that of Mr Robert Fletcher who is, as it were, the sweeping up expert and identifies in his skeleton argument some pertinent passages.

He says it is true that neither Mr Furness nor Mr Fletcher produced anything in support of this. He suggested that no customer in the real word would be willing to supply such evidence. I am not sure about that. No detail was provided of the differences between the cost of the limestone sold by the claimants and that sold by a major quarry company. No indication was given that it was likely that customers would have to revisit their concrete mix designs, nor was any explanation for timescales required for this. He submits at paragraph 42 of his skeleton argument reasons he says the reasons given by the inspector are adequate to deal with those points.

Mr McCracken also directs attention, as it were, to the target at which the inspector was being directed and says that he was not holding that it would be financially worthwhile for the appellant to comply with his interpretation of issue of permission, he was simply holding that his interpretation was a practically workable one. The planning system leaves the land owners and other interested parties to decide whether the implementation of a permission was financially worthwhile.

In considering (g) it is worth bearing in mind the issue to which the inspector was addressing, which in terms of the appeal put forward was as follows: (I take this from (g) on page 66 of the bundle):

The first point relied upon by the appellants is, as I say, the question of the ruling. That seems to me an unpromising point. There is no evidence that there was a ruling and indeed the inspector's evidence is that there was not. One would not, in the ordinary way, expect there to be a ruling at that point and if there were to be a ruling and it were to be relied on, one would have expected to see it clearly recorded in writing in some way. It would be most unusual for the lawyers to take decisions about the way in which to cast their evidence, based on the very limited indication from the tribunal of the alleged ruling. So that point, it seems to me, clearly fails.

So far as the second point is concerned, it is important to bear in mind that there are limitations on the utility of the cross citation of passages from evidence given at an inquiry, or indeed at a court of first instance. There is considerable authority, none of which has been drawn to my attention today, which reminds a court reviewing findings of fact made by another body, particularly when not made by a judge, that it is important to not to be over analytical or over critical about the way in which conclusions are expressed or about omissions of explicit consideration of particular points. It seems to me looking at the materials that have been laid before me at some length and having regard to the objective of the inspector, that there is nothing unlawful about his approach in those regards. I bear in mind that I am concerned not with conclusions that I would have reached but with whether or not the inspector was acting unlawfully. For that reason, I reject the second limb.

So far as section 11(a) is concerned, it seems to me that the considerations that underline the duty in this section were, in the course of consideration of other issues, clearly in the mind of the inspector at the time he carried out his work. I agree with Mr Brown that it is quite hard to see how the balance could be affected bearing in mind the gravity of the matter with which the inspector was concerned, that is to say, justifying albeit that that is something that (g) contemplates as a possibility, the unauthorised extraction of limestone in breach of planning control and contrary to the other settled policies of the National Park construction plan.

So for all those reasons, I am going to dismiss the claimants' appeal.

MR BROWN: My Lord, I am very grateful for that. In formal terms the order I will ask for starts with the point your Lordship has just made, the application is dismissed. I would also ask for an order the claimant pay the Secretary of State's costs in relation to the application and my Lord a costs schedule has been exchanged but I do not know whether the amount has been agreed. It is technically a case that has gone over the one. It is agreed then I would ask for summary assessment. If not I think it is probably easiest at this stage to simply say: our costs to be subject to detailed assessment if not agreed.

MR JONES: My Lord it is not agreed, I am afraid.

MR BROWN: My Lord, in that case it is probably simplest just to-- (Pause)

My Lord in the circumstances given if it were a one day case I would press your Lordship to make an order in the amount that we have asked for, but since we have gone over and therefore it is not automatically a case where your Lordship should make summary assessment, I ask simply for it to be assessed if not agreed. I am grateful.

JUDGE MACKIE: Very well. There is no application for a payment on account. So the costs will be the ordinary one. The claimants will pay the defendants' costs to be assessed if not agreed.

MR BROWN: The first defendant's my Lord?

JUDGE MACKIE: Yes the first defendant's.

Unless there is anything else, thank you all very much for your help and all three of you for your guidance.