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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bleaklow Industries Ltd, R (on the application of) v Peak District National Park Authority & Anor [2006] EWHC 3387 (Admin) (29 November 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3387.html
Cite as: [2006] EWHC 3387 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF | ||
| BLEAKLOW INDUSTRIES LIMITED | (CLAIMANT) | |
| -v - | ||
| (1) PEAK DISTRICT NATIONAL PARK AUTHORITY | ||
| (2) GLEBE MINES LIMITED | (DEFENDANTS) |
____________________
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
FRANCES PATTERSON QC and ALAN EVANS, and on this occasion MISS S REID, appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
- MR JUSTICE SULLIVAN: Introduction
- Some 14 kilometres to the north of Winster Moor, as the crow flies, is Longstone Edge, which is also within the National Park. At Longstone Edge there are a number of planning permissions for mineral extraction. At its eastern end, 158 hectares of land have the benefit of a planning permission granted by the Minister on 24th April 1952 ("the 1952 permission") for "the winning and working of fluorspar, barytes and for the working of lead and other minerals which are won in the course of working these minerals, by turning over old spoil dumps, by opencast working, and by underground mining ..." ("the 1952 permission land).
- The 1952 permission is still extant, but it is subject to a review under the Environment Act 1995 which, for various reasons, remains uncompleted and is, in the first defendant's words, currently "stalled". The claimant owns most of the 1952 permission land. However, the second defendant holds the vein mineral rights in a substantial part of the 1952 permission land. The second defendant also controls a substantial site at the western end of Longstone Edge where limestone and vein minerals are currently being extracted pursuant to a planning permission granted on 25th March 2004. That planning permission was a "consolidating" exercise and involved the surrender of certain areas consented for mineral operations at Longstone Edge, the variation of conditions and a small extension to permitted workings.
- There is a dispute between the claimant on the one hand and the first defendant on the other as to the extent of the rights conferred by the 1952 permission. Adjoining that part of 1952 permission land where the second defendant holds the vein mineral rights is another site, Backdale, where the claimant owns both the land and the vein mineral rights. In 2003 mineral operations commenced at Backdale. The operator and the claimant contended that they were within the terms of the 1952 permission. On 28th November 2003 officers advised the first defendant's Planning Control Committee in a report that Planning Contravention Notices should be served in respect of those operations. Subsequently, the first defendant issued an enforcement notice and served a stop notice but on appeal it was decided that the enforcement notice was a nullity. Following that decision, a second enforcement notice and a second stop notice were issued and served respectively, preceded by a temporary stop notice to prevent further working at Backdale. Cavendish Mill, which is the only processing plant for fluorspar in the UK, is operated by the second defendant and is situated some 2.3 kilometres as the crow flies and either 5 (according to the claimant) or 6 (according to the first defendant) kilometres by private haul road from Longstone Edge. Winster Moor is 21.5 kilometres from Cavendish Mill via the public highway network.
- The second defendant's application for planning permission for the Winster site was received by the claimant on 28th May 2003. In a letter dated 23rd September 2003 to the first defendant, the second defendant said, inter alia,
- The application was reported to the Planning Control Committee on 28th November 2003. It was described as a major application and was accompanied by an environmental statement. Members were also told that approval would constitute a departure from the development plan, so the application would have to be referred to the Office of the Deputy Prime Minister if members were minded to grant permission. Having described the proposal to extract 376,000 tonnes of vein minerals (fluorspar, barytes and lead) by opencast methods over four years, the report said:
- Under the heading "Consultations" the report summarised the views of the first defendant's Landscape Architect:
- Having advised members that:
- Under "Landscape and Visual Impact", the report said:
- Under "Access/Traffic", the report said:
- Finally, among the topics considered, the report dealt with the issue of vein mineral rights and planning gain, saying:
- The report then drew the threads together under the heading "Overall Balance of Analysis on Submitted Proposal".
- The conclusion in the report was as follows:
- The recommendation was that the Secretary of State be informed that the first defendant was minded to approve the application on the basis that there would be a section 106 agreement whereby:
- There was also a supplementary report before the Committee which referred to the Department of Trade and Industry's strong support for the application. The DTI considered that "there is a national need for the fluorspar mined by the applicant." That representation was supported by two of the second defendant's customers, one of whom expressed the view that "it is in the UK's national interest to maintain a UK based fluorspar industry."
- The minutes of the meeting before the Committee record that a spokesman on behalf of the CPRE, which had objected in principle to the application, spoke in favour of approval subject to strict conditions "particularly in view of the potential protection of parts of Longstone Edge."
- Members agreed with the recommendation for approval but:
- On 23rd March 2004 the First Secretary of State informed the first defendant that he had decided not to call in the application. The decision notice was issued dated 7th September 2004 and the summary reasons for granting planning permission set out on the decision notice included the following:
- I have already referred to condition 1 in the permission which prohibits mineral extraction at the site after 31st July 2008. Condition 10 states that:
- Thus, the limestone worked at Winster Moor in order to extract the vein ore is to be used in the restoration of that site.
- The section 106 agreement dated 7th September 2004 between the claimant and the second defendant makes provision for "restoration works" and "aftercare works" at the Winster Moor site. In addition, Part 1 of the Third Schedule contains obligations in respect of the "restricted land" (the land at the eastern end of Longstone Edge owned by the claimant where the second defendant owns the vein mineral rights).
- The second defendant agreed that the development permitted by the 1952 permission "shall not after the date hereof be carried out upon the restricted land", that it would not seek compensation for the deemed revocation of the 1952 permission, or for any formal revocation order subsequently made to the same or similar effect, and that it would sign an option agreement in the form set out in the Fifth Schedule. The option agreement gave a 20 year option to purchase the mineral rights at a purchase price of £1 and required the second defendant to procure that the option should continue to be enforceable if the second defendant disposed of its interest in the vein mineral rights in the meantime.
- The claimant's application for permission to apply for judicial review was filed on 6th December 2004. It was refused on the papers by Harrison J on 21st January 2005. The claimant renewed its application and, following an oral hearing on 10th October 2005, Ouseley J granted permission to apply for judicial review on three grounds:
- I will deal with this ground first because Mr Martin Kingston QC, who appeared on behalf of the claimant, placed it at the forefront of his submissions. At the time when planning permission was granted and the section 106 obligation was entered into between the first defendant and the second defendant, Circular 1/97 was the operative government policy guidance in respect of planning obligations. On 18th July 2005 it was replaced by ODPM Circular 05/2005. For present purposes, the replacement guidance is not materially different and it need not be considered further.
- The background to the policy guidance is set out in the introductory paragraphs to Circular 1/97, as follows:
- Paragraphs 6, 7 and 8 state as follows:
- It is common ground between the parties that government planning policy is a material consideration to which local planning authorities must have regard when determining planning applications. They are not obliged to follow the policy guidance and may decide to depart from it if they consider that there are good reasons to do so in any particular case (see Gransden & Company Limited v Secretary of State for the Environment 54 P&CR 86 per Woolf J, as he then was, at paragraphs 93 to 94).
- Gransden was a challenge to an Inspector's decision letter dismissing an appeal and Woolf J's proposition that if the body determining the application was going to depart from government policy, "it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken" must be considered in the context of the obligation under the Inquiry Procedure Rules to give reasons in such decision letters. The present case is concerned with a decision by a mineral planning authority to grant planning permission where summary reasons for the decision must be set out in the decision notice.
- In its claim form the claimant pointed to the fact that the officer's report did not mention Circular 1/97 and contended that the proper inference to be drawn from that omission was that the first defendant "wholly failed to have regard to paragraph 7 of Circular 1/97". When granting permission to apply for judicial review Ouseley J observed that it was arguable that Circular 1/97, a material consideration, had been ignored.
- On behalf of the first defendant, Miss Patterson QC rightly submitted that it was not necessary for an officer's report to refer to each and every piece of government policy guidance by name. What mattered was whether the substance of the relevant policies had in fact been considered by the members of the Planning Control Committee. As Judge LJ said in Oxton Farms v Selby District Council [1997] EWCA 1440 at page 10:
- Section 106 agreements are relatively commonplace and as a general rule I would not attach any particular significance to a failure specifically to refer to Circular 1/97 if there was nothing in the decision -making process to suggest that the tests set out in paragraph 7 of the Circular had not in practice been applied by the Local Planning Authority. In R v Somerset County Council and ARC Southern Limited ex parte Dixon [1998] Env LR 111, Sedley J, as he then was, considered a challenge to a grant of planning permission upon the ground that the defendant had failed to have regard to Circular 16/91 (the predecessor of Circular 1/97). In an earlier decision letter refusing planning permission which was subsequently quashed on appeal to the High Court, the Secretary of State had expressed the view that certain planning obligations under the section 106 agreement offered by ARC did not conform with the guidance in Circular 16/91. ARC resubmitted the application which was granted by the defendant subject to a section 106 agreement. The Circular was not expressly referred to in the officer's report. Sedley J said this at page 123:
- Following the grant of permission to apply for judicial review by Ouseley J, the first defendant filed witness statements in November 2005 from Mr Bent, the Senior Minerals Planner in the Development Control Section of the first defendant, the officer with direct responsibility for the report, and three members of the Committee: Mr Hams, the Chair of the Authority, Miss Crowe and Miss Ash, all three of whom have Town Planning qualifications. Mr Bent said this in respect of the alleged failure to have regard to Circular 1/97:
- The relevant part of the training handout referred to by Mr Bent is in these terms (the emphasis is as in the original):
- In order to do justice to the first defendant's case, it is necessary to set out much of the evidence in the witness statements of the three Members.
- Mr Hams says:
- Miss Crowe says:
- Miss Ash says:
- In the light of that evidence, it is clear that the members of the Committee knew that there was government policy guidance as to the use of section 106 agreements contained in Circular 1/97, knew that the guidance was a relevant factor in considering the merits of the Winster application, and believed that they were following that guidance when deciding that planning permission should be granted subject to a section 106 agreement, as recommended in the report. Plainly, this was not a case where the members believed that they were justified in, or were, departing from policy guidance in Circular 1/97. The only remaining question, therefore, is whether to adopt the words of Sedley J and Judge LJ in the Somerset and Oxton Farms cases (above) there is "separate evidence" that the members were "significantly misled" as to what was the policy guidance in Circular 1/97, and therefore misapplied government policy.
- In my judgment there is such evidence. It was not disputed by Miss Patterson that the tests in paragraph 7 of Circular 1/97 are cumulative. Thus it is not sufficient that the proposed section 106 obligations meet any one of the tests in sub -paragraphs (i) to (iii) and (v), in addition to meeting the "fairly and reasonably related" test in sub -paragraph (iv). However, that is precisely what is suggested in the training material (see above), although the tests, one of which, it is said, must be satisfied, in addition to "related in scale and kind to the development" test, do not correspond with all of the tests in paragraph 7 of Circular 1/97. The precise formulation of the five tests is of less significance than the failure to make it clear that all five tests must be satisfied if the policy guidance is to be complied with. The apparently erroneous advice as to what is required by Circular 1/97 is repeated by Mr Bent in paragraph 50 of his witness statement without comment. Normally, the content of training material might be thought to be of limited importance, but in the present case, no doubt in view of the failure to refer to Circular 1/97 in the officer's report, the first defendant itself attached particular significance to the training material. Thus, Mr Bent stated in paragraph 51 of his witness statement that 17 out of the 19 members of the Committee on 28th November 2003 had attended the training provided in July 2003 or a similar event in 2001. Mr Hams, Miss Crowe and Miss Ash all referred without further comment to their participation in the July 2003 training.
- The claimant's solicitors drew the first defendant's attention to the apparent error in the training material in a letter dated 12th April 2006. That produced no substantive response until the first defendant's skeleton argument was served shortly before the hearing. In that skeleton argument Miss Patterson accepted that the tests in paragraph 7 of Circular 1/97 were cumulative, not alternatives, and that to regard them as alternatives would have been an error. However, she submitted that the training material
- While I accept that those were Miss Patterson's instructions from the first defendant, in the absence of any evidence from the first defendant that this was the limited purpose of the training material, I do not accept the explanation put forward by way of submission. On its face, the training material does not purport to be summarising simply the guidance in part of Annex B to the Circular. It is not suggested that the overarching tests in paragraph 7 are dealt with elsewhere in the training material and it would be curious, to say the least, for such a very brief summary of the policy guidance to omit the mandatory tests and proceed straight to the examples of reasonableness in Annex B. In any event, if Annex B is read as a whole, it restates the tests in paragraph 7 and, if there were any room for doubt, makes it clear that they are to be applied cumulatively, thus the final sentence in paragraph B2 states:
- Paragraphs B3 and B4, so far as relevant for present purposes, say:
- Paragraphs B8 to B12 explain in more detail what might be regarded as "reasonable benefits." They "give some examples of the circumstances in which certain times of types of benefit can reasonably be sought or taken into account in connection with an application for planning permission."
- The language of the first defendant's training material "they must satisfy one of the following" is not apt to summarise a number of non -exhaustive examples of reasonable obligations. It is apt to summarise (inaccurately) a number of tests which must be met. It is always difficult to summarise detailed policy guidance, and I do not wish to appear over critical, but on any common sense reading of the training material it is plain that the advice as to what was required of a section 106 obligation in order to comply with Circular 1/97 was simply wrong in conveying the impression that, for example, if an obligation was "in the interests of amenity" and "related in scale and kind to the proposed development" it would therefore be compliant with government policy. It is with some regret that I am driven to conclude that in not acknowledging that the training material was erroneous, the first defendant has not been frank with the court and had instead proffered through leading counsel a specious explanation in an attempt to persuade the court that there was no error in the training that was given to the members of the committee. The court is not being asked to evaluate the merits of the first defendant's training programme, so does the error really matter?
- In my judgment, it does, for the following reasons. While the obligations in a section 106 agreement will always be "necessary" if the Local Planning Authority is faithfully following government policy guidance in Circular 1/97, and in that sense planning permission would have been refused in the absence of the section 106 obligation, in the present case the section 106 agreement was not simply a principal consideration in favour of granting planning permission, it was, in the Committee Members' own words, "the key factor" in persuading them that planning permission should be granted.
- I have set out the relevant extracts in the officers's report, the Committee minutes and the planning decision notice above. It is plain that the first defendant's officers, the first defendant's landscape adviser, the CPRE, and the Committee members were all at one. Planning permission for a major development in the National Park at Winster Moor, contrary to the development plan, was justified only because of the provisions in the section 106 agreement relating to Longstone Edge. It is no exaggeration to say that the provisions in the agreement in respect of Longstone Edge were of central importance in the first defendant's decision -making process. That impression gained from the documents is confirmed by the witness statements of the three Committee members (see above).
- The section 106 agreement also contained obligations in respect of the Winster Moor site itself (making provision for restoration and aftercare) but the critical provisions which persuaded members to grant planning permission were those which did not impact upon the application site itself or on facilities required for that site, such as, for example, access, but those which affected another site altogether, some 14 kilometres away. As a matter of law, that did not mean that the section 106 obligations in respect of Longstone Edge were an immaterial consideration. As Ouseley J said when refusing to grant the claimant permission to apply for judicial review on the ground that the section 106 agreement was not a relevant consideration:
- However, as Ouseley J observed when granting the claimant permission to apply on the Circular 1/97 ground, the Circular "is known to have a more restrictive approach than the law would require." The distinction between the law and policy in this respect was clarified by the House of Lords in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759. Lord Keith said at page 770:
- Lord Hoffman said at page 777 under the heading "Law and policy in the United Kingdom":
- In view of the significance of this particular section 106 agreement and the nature of the proposed obligations (seeking to restrict activities on a site other than the application site) it was particularly important that if the first defendant was purporting to apply the policy guidance in Circular 1/97, as on its own evidence it was, that policy guidance was correctly understood by officers and members. The first defendant's own evidence suggests that it was not. The first defendant cannot have it both ways. In answer to the claimant's criticism that the report did not draw members' attention to Circular 1/97. The first defendant expressly relied upon the training material and pointed to the fact that the training had been given to most of the members of the Committee only a few months before their November meeting. Given the uncritical recitation of the erroneous training material in the defendant's evidence, it is, in my judgment, more likely than not that the members did not have a correct understanding of government policy in Circular 1/97 and were therefore not in a position to apply it correctly when considering the section 106 obligations offered in connection with the Winster application.
- Miss Patterson pointed to passages in the witness statements where the three members state that the obligations and the planning permission "were both reasonably and directly related" (Miss Crowe); that the two issues were "directly related" and that the section 106 agreed was "reasonable" (Miss Ash); and Mr Hams' evidence that "the proposals came within the tests of 1/97". Unfortunately, Mr Hams' evidence is of little assistance unless one knows what Mr Hams thought those tests were. Did he think that it was sufficient to meet one of the tests, for example, that the obligations were in the interests of amenity, as well as being related in scale and kind to the proposed development, as suggested in the training material? It is perhaps significant that even though the claimant pointed out the error in the training material some months ago, there has been no evidence from the first defendant that either the officers or the members appreciated that the tests in paragraph 7 were cumulative, or that members gave consideration as to whether all, and not merely some, of the five tests were met.
- I accept Miss Patterson's submission that whether a particular obligation is reasonable, whether it is "directly related" to the proposed development, and whether it is "fairly and reasonably related in scale and kind" are all matters of planning judgment on which members of planning committees are expected to use their own local knowledge and experience. The difficulty in the present case is that there is nothing in the report that suggests that members were invited to consider those questions for themselves. If the members remembered the training that they had received a few months earlier, they may well have thought that it was not necessary for the obligations in respect of Longstone Edge to be "directly related" to the proposed development at Winster Moor, and that it was sufficient that the obligations having the effect of preventing working at Longstone Edge would be both "in the interests of amenity" (as to which there appears to have been widespread agreement) and "related in scale and kind to the proposals at Winster Moor. Merely because it is concluded that there is a relationship between preventing working at Longstone Edge and permitting working at Winster Moor, it does not necessarily follow that former is "directly related" to the latter, or that the obligations in respect of Longstone Edge are "fairly and reasonably related in scale and kind" to the proposal at Winster Moor.
- The ability of the members to consider these issues would have been materially affected by the extent of their knowledge of what it was that the section 106 obligations were intended to prevent at Longstone Edge. This issue overlaps with the claimant's sustainability challenge (see below), but when deciding in general terms what weight should be given to the proposed section 106 obligations, insofar as they sought to prevent development at Longstone Edge, and specifically whether the benefits conferred by the obligations were fairly and reasonably related in scale and kind to the (disbenefits of) the proposed development of Winster Moor, it would have been necessary to have at least a general understanding of what it was that was being achieved by the obligations in respect of the vein mineral workings at the eastern end of Longstone Edge.
- The impression given by the report is that the second defendant's offer to sell the vein mineral rights to the claimant would have the effect of preventing large scale extraction at Longstone Edge which would be very damaging to the amenities in the National Park. However, the second defendant's position, with which the first defendant's officers agreed, was that there were no substantial quantities of vein minerals in the area covered by the section 106 agreement.
- In a letter dated 1st October 2004 to the claimant's solicitors, Mr Bent said:
- That this was the second defendant's position is confirmed in a witness statement filed by Mr White, the second defendant's director (mining and technical services), dated 25th January 2005:
- Although the claimant, it must be assumed, disagreed with the first defendant's and the second defendant's assessment, whether there were any significant vein mineral (fluorspar) reserves in the land subject to the section 106 obligations was clearly relevant in the context of the dispute as to the proper interpretation of the 1952 permission. The summary of that dispute in the claim form was not challenged by the first defendant.
- In these proceedings the court must resist the temptation to construe the 1952 permission. But even if it is assumed that the claimant's interpretation is correct, it is difficult to see how there could be "genuine working" of the specified minerals enabling limestone to be extracted as part of the same operation in the land subject to the section 106 agreement at the eastern end of Longstone Edge if there are no significant vein mineral reserves in that land. Putting the matter more simply: if the defendants were correct in their view that there were no significant vein mineral reserves in the section 106 land, what benefit was being conferred by the agreement? Was an obligation to give up a right to vein mineral reserves which were not significant in one location in the National Park "fairly and reasonably related in scale and kind" to a proposal to extract 376,000 tonnes of fluorspar in another location in the National Park.
- It is clear from their witness statements that the members were very concerned that there was uncertainty as to what development could lawfully take place under the 1952 permission. Clarifying the position at the eastern end of Longstone Edge was, in the view of Miss Crowe:
- Similar views are contained in the witness statements of Mr Hams and Miss Ash (see above). While the report reminded members of the rival interpretations of the 1952 permission, they were not advised that those legal arguments had to be evaluated against the background of the officers', and the second defendant's, opinion, albeit an opinion disputed by the claimant, that there were no significant vein mineral reserves in the section 106 land. The first defendant maintains that the Committee members were well aware of the circumstances at Longstone Edge because it was, in effect, a cause celebre among the development control issues in the National Park. However, there is no recognition in the three members' witness statement that it was the opinion of both the first defendant's officers and the second defendant that there were no significant vein mineral reserves in the land covered by the section 106 agreement. That information would clearly have been relevant in assessing the extent of the risk that if there was no section 106 agreement there might be "a huge scar in the landscape", and hence in balancing the degree of benefit that would be conferred by the section 106 agreement against the adverse visual impact of the proposed development at Winster Moor on the National Park.
- On the face of the agreement, its ostensible purpose was to prevent the second defendant and, by virtue of the option agreement, any other party, from winning and working fluorspar at Longstone Edge under the 1952 permission in exchange for a planning permission which enabled the second defendant to extract 376,000 tonnes of fluorspar at Winster Moor (leaving the limestone on that site for restoration purposes). If that was the true purpose of the section 106 agreement, one can see how members might have reasonably concluded that the tests of "direct relationship" and "fairly and reasonably related in scale and kind" were met.
- However, if the true purpose of the section 106 agreement was not to prevent the second defendant from winning and working fluorspar at Longstone Edge because the second defendant had no intention of pursuing such extraction activities in an area where it was satisfied that there were unlikely to be economically viable fluorspar reserves (see Mr White's evidence above); but was instead to prevent the claimant from extracting very large quantities of limestone at Longstone Edge as "other minerals" pursuant to its interpretation of the 1952 permission in return for a planning permission to the second defendant to extract fluorspar at Winster Moor, then it is, to put it at its lowest, debatable whether there was a direct relationship between that which was being prevented by the section 106 obligation and that which was being permitted by the planning permission, and even if there was a direct relationship, whether that which was being prevented was "fairly and reasonably" related in "scale and kind" to that which was being permitted.
- Clearly, the members considered that there would be a "massive environmental gain" if the possibility of large scale extraction of limestone at Longstone Edge could be prevented, but the greater the planning gain offered in a section 106 agreement, the more important it is to consider very carefully whether it is fairly and reasonably related in scale and kind to that which is being permitted, if the tests in Circular 1/97 are to be complied with. As paragraph B3 in Circular 1/97 explains:
- On the basis of the material before the members in the present case, making full allowance for the extent of their local knowledge (see also the sustainability ground below), it is difficult to see how they could have applied the tests in paragraph 7 of Circular 1/97, the tests of necessity, direct relationship and fair and reasonable relationship in scale and kind, on a properly informed basis, even if, looking at the evidence as a whole, there was no "separate evidence" that they were probably led into an erroneous understanding of the policy guidance in the Circular in any event.
- In his judgment granting permission to apply for judicial review, Ouseley J summarised this ground of challenge in paragraphs 7 to 10 of his judgment:
- I have set out above the relevant parts of the officer's report for the meeting on 28th November 2003. No more was said in the report about Longstone Edge or the planning gain to be derived from the second defendant's offer to sell the vein mineral rights at the eastern end of Longstone Edge. Since the report is addressed not to the general public but to the members of the National Park Committee, the omission of such details would be of no significance if the members were very familiar with the situation at Longstone Edge. Miss Patterson submits that this was the case. If not notorious, the planning saga of Longstone Edge was at least very well known by all the members of the Committee. In addition to the three witness statements from members (see above) she relied upon Mr Bent's witness statement, which says under the heading "Background/Member awareness":
- The outcome of that enforcement is summarised under the heading, "Factual background" (see paragraph 4 above).
- While it is true that the report presented under item 7.1 at the meeting on 28th November 2003 dealt generally with mineral workings at Longstone Edge, it was particularly concerned with the operations of a new operator at Backdale and recommended that planning contravention notices should be served in respect of that mining activity. The second defendant did not own the vein mineral rights at Backdale and Backdale was not included in the land that was subject to the proposed section 106 agreement. The report's failure to address the issue of the extent to which there were (in the opinion of the second defendant and the first defendant's officers) any significant vein mineral reserves in the section 106 land (see above) is merely one example of the lack of any information about what was being achieved by the section 106 agreement in exchange for the otherwise objectionable planning permission at Winster Moor.
- I readily accept that the members of the Committee were familiar with the problems presented by existing and possible future mining operations at Longstone Edge in general terms but, reading the three witness statements, I do not accept that they had sufficient information to enable them to distinguish the section 106 land from, for example, Backdale. Reading the witness statements of Miss Crowe (paragraph 7) and Miss Ash (paragraph 3) and paragraph 10 of Mr Hams' witness statement, I am left in real doubt as to whether they were under the impression that the section 106 agreement would "clarify" the situation at Backdale as part of the land at the eastern end of Longstone Edge.
- Looked at in isolation, the claimants's submission that there was no consideration of the sustainability (as distinct from the road traffic) implications of the heavy goods vehicle journeys that would result from the grant of planning permission for the extraction of fluorspar at Winster Moor, 21.5 kilometres from the processing plant at Cavendish Mill, and no consideration of the desirability in terms of the "sustainability" policies in PPGs 1 and 13 of not sterilising possible fluorspar reserves at Longstone Edge (much closer to Cavendish Mill via internal haul roads) is not persuasive. The report gave details of the traffic that would be generated by the proposed development at Winster Moor and the route that it would take to Cavendish Mill. Even though they were not expressly invited to consider the "sustainability" implications of this information, members would have appreciated the general proposition: the longer the journey, the less sustainable the proposed development. The problem is not that the members had insufficient information about the Winster Moor proposal (after all, the planning application was accompanied by an environmental statement), it is that they had virtually no information to help them assess the extent of the benefits that would be conferred by the section 106 agreement at the eastern end of Longstone Edge, save for the information contained in the report at agenda item 7.1, supplemented by their own general knowledge of the circumstances at Longstone Edge.
- It will be remembered that in paragraph 9 of his witness statement, Mr Hams said:
- Mr Hams' witness statement was prepared nearly two years after the meeting on 28th November 2003. While the position may have been clear to him, his witness statement is certainly an acknowledgment of the basic proposition that there should have been a "full appraisal" of such matters for the benefit of members. However, there is nothing in the material before the court, apart from his assertion, to suggest that the Committee were "appraised fully" on the landscape impacts of the working at Longstone Edge that would be prevented by the section 106 agreement, beyond the landscape architect's view that the benefits of not working at Longstone Edge outweighed the significant visual impact of the Winster Moor site. Nor is there any indication that the other planning implications of the section 106 agreement, such as the impact on potential traffic movements, were appraised at all, let alone appraised fully. Without information about the scale of the extraction that was being prevented by the section 106 agreement, it is difficult to understand how the matters referred to by Mr Hams could have been fully appraised, save in respect of Winster Moor. When considering the extent to which it can safely be assumed that the members' own knowledge of Longstone Edge was a sufficient basis for an informed comparison, it must be borne in mind that, on the first defendant's own case, the planning position at Longstone Edge was complex. It was "extensively covered by a number of planning permissions" according to the report at agenda item 7.1. Some of those planning permissions have been "consolidated", so there was both lawful working with the benefit of planning permission and (in the first defendant's view) unlawful working at Backdale, in addition to the uncertainty about the possibility of future working on the section 106 land. In these complex and potentially confusing circumstances (the report to members was accompanied by a plan showing the section 106 land, but there is still no single composite plan which clearly identifies and distinguishes between those various parts of Longstone Edge) it was essential that more information was provided as to just what it was that was being prevented at Longstone Edge by the section 106 agreement if a proper balance was to be struck between the benefits of entering into the agreement and the disbenefits of granting the proposed planning permission at Winster Moor. It follows that this ground of challenge is also made out.
- The material provisions of the 1966 Act are as follows. Section 1 enables the court to grant working facilities.
- Section 3:
- Section 4:
- Section 5:
- The first defendant's landscape architect accepted that the visual impact of the proposed development at Winster Moor was outweighed by the benefits of the proposed section 106 agreement on the basis that it could be "guaranteed" to prevent quarrying at the eastern end of Longstone Edge.
- The section 106 agreement was presented to members on the basis that if it was entered into "no further winning of any other minerals [at the eastern end of Longstone Edge] can take place", so that the land covered by the agreement would be "safeguarded" (see the extracts from the report above). It is clear that members understood that this would be the effect of the section 106 agreement (see the final sentence of paragraph 10 of Mr Hams' witness statement, and paragraph 11 of Miss Crowe's witness statement).
- In the pre -action protocol letter dated 17th June 2004 the claimant's solicitor said in respect of this issue:
- The first defendant replied on 3rd August 2004:
- While private rights, such as restrictive covenants or covenants in leases, are not normally relevant for planning purposes, this was not a "normal" section 106 agreement. Unusually, it did not simply prevent the party to the agreement from implementing one planning permission in exchange for the grant of a more acceptable planning permission elsewhere, it related specifically to the second defendant's interest in the vein mineral rights in the section 106 land, and contained an option enabling the first defendant to purchase those rights for £1. This was an agreement which was, therefore, directly concerned with private rights. For the reasons set out above under the Circular 1/97 ground of challenge, insofar as the section 106 agreement related to Longstone Edge, it was, in reality, albeit not in form, directed at the claimant, not the second defendant, and was intended to prevent the claimant from implementing the 1952 planning permission in accordance with its interpretation of that permission. In these circumstances it was clearly relevant to consider whether there was any way in which the claimant could obtain the right to work the vein minerals and thus frustrate the underlying purpose of the agreement, which was to "guarantee" that there would be no quarrying at the eastern end of Longstone Edge.
- Permission to apply for judicial review having been granted on this ground, the first defendant responded in Mr Bent's witness statement:
- It is not surprising that there is no mention of the 1966 Act in MPG1. As I have said, normally private rights and restrictions and the means of obtaining the former and/or of overcoming the latter are not relevant considerations for planning purposes. In view of the particular restrictions imposed by this section 106 agreement, it was relevant to consider whether the claimant might seek to overcome those restrictions by making an application under the 1966 Act.
- Miss Patterson submitted that Mr Bent did not regard the 1966 Act as something which it was material to draw to the members' attention and that he was entitled to take that view for the reasons set out in his witness statement. She submitted that the second proposition of Glidewell LJ on page 352 of Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P&CR 343 was of particular relevance in this context. That proposition is as follows:
- Applying that test, she submitted that, bearing in mind the very demanding hurdle of expediency in the national interest (see section 3(1)), the claimant would be unlikely even to be able to establish a prima facie case before the Minister under section 4(3). She also submitted in her skeleton argument that the Committee "had already been advised in respect of the very decision under challenge that the view could be taken that there was no national need for the Winster development as alternative sources of fluorspar were considered to be available."
- If this was the basis on which the first defendant's officers discounted the possibility of recourse to the 1966 Act by the claimant, it was sadly mistaken. First, as Mr Kingston pointed out, the Minister responsible for deciding whether there is a prima facie case is the Secretary of State for Trade and Industry. The Department of Trade and Industry had "strongly supported" the second defendant's Winster Moor application and had stated that there was a "national need for the fluorspar mined by the [second defendant]" (see above).
- While it is true that at one point in the officer's report members were told that the view could be taken there was no national need for the Winster development, at an earlier stage in the report the officer had said that there was "uncertainty whether there is a national need for fluorspar", and the members made it clear that, for their part, they were "not determining whether or not there was a national need for fluorspar". The Department of Trade and Industry was emphasising the importance in the national interest of maintaining a UK supply of fluorspar. In these circumstances, the availability of alternative sources of fluorspar from overseas would not necessarily be determinative of whether or not there was a national need for the material. I realise that the need for the mineral would not be the only factor which the court would take into consideration in deciding whether or not a grant of mineral rights would be "expedient in the national interest". The court would have regard to "all the circumstances of the case" (see section 4(4)) and these would include the impact of any working on the National Park. The claimant could have tested that issue by making a planning application.
- Had members been advised that there was a possibility that the claimant would seek to circumvent the restrictions imposed by the section 106 agreement by making an application under the 1966 Act, they might have dismissed that threat as too remote. Equally, if they were of the same mind as Mr Hams, who wanted to "ensure" that the possibility of the eastern end of Longstone Edge being worked in the future "could not happen", they might not have been so sanguine.
- Miss Patterson correctly pointed out that there is a conflict between this ground of challenge and the point made by the claimant in the context of Circular 1/97: that the first defendant's officers and the second defendant were of the opinion that there were no economically viable fluorspar veins in the section 106 land. I accept that there is a conflict, but it is of no avail to the first defendant. If members of the Committee had been told that the first defendant's officers believed that the 1966 Act would not assist the claimant because there was no fluorspar that could be economically worked in the section 106 land (see letter of 1st October 2004 above) then the members might have wished to consider in somewhat greater detail just what was being achieved by the section 106 agreement and whether it justified the grant of planning permission for substantial extraction at Winster Moor.
- Conversely, if the claimant believed that there was fluorspar to be won (which would enable it to work substantial quantities of "other minerals" on its interpretation of the 1952 permission) there was every reason to believe, given the history of the litigation between the claimant and the first defendant, that the claimant would attempt to circumvent the section 106 agreement by means of an application under the 1966 Act. For these reasons the application succeeds on this ground also.
- Miss Patterson submitted that this was an exceptional case where even if the court concluded that there had been failures in the decision -making process, those failures would not have affected the outcome. She referred in his connection to Glidewell LJ's sixth proposition in Bolton:
- She submitted that it was not clear that there was a "real possibility" that correcting the failures to take relevant considerations into account would have made any difference to the Committee's decision. I do not accept that submission. While it is clear that the members of the Committee were very keen indeed to ensure that the eastern end of Longstone Edge would be the protected from a real risk of large scale limestone extraction under the claimant's interpretation of the 1952 planning permission, it is by no means clear that they would have been satisfied:
- In a supplementary skeleton argument, Miss Patterson submitted that the claimant did not have a sufficient interest to bring the proceedings. This submission was a repetition of arguments which were advanced before Ouseley J. Since he granted permission to apply for judicial review, he must have been satisfied that the claimant did have a sufficient interest to bring the challenge. Mr Kingston fairly acknowledged that the claimant was not really concerned with the planning permission at Winster Moor. Its concerns related to the section 106 agreement part of the package. However, the planning permission and the section 106 agreement are inextricably linked in one package. On the first defendant's own case, without the section 106 agreement there would have been no planning permission. There is no doubt that the claimant has a sufficient interest to challenge the section 106 part of the package. Not only does it own the land and have the benefit of the 1952 planning permission, to which the section 106 agreement relates, it is clear from the first defendant's witness statements that the real purpose of the agreement was to prevent large scale limestone extraction by the claimant in reliance upon its interpretation of the 1952 planning permission. Obtaining the second defendant's agreement not to work the vein minerals and an option to purchase the second defendant's vein mineral rights were simply a means to that end.
- I accept, however, that the nature and extent of the claimant's interest is capable of being a relevant consideration in deciding whether any and, if so, what relief should be granted. That is the final issue to which I turn, and which I have found particularly difficult to resolve in the somewhat unusual circumstances of this case.
- The claim form sought by way of interim relief a stay suspending the implementation of the Winster Moor planning permission. In its evidence in response to that claim the second defendant stated that working had commenced pursuant to the planning permission on 8th September 2004, the day after it was granted. Mr White explained the considerable commercial damage that would be suffered by the second defendant if it was forced to suspend operations at Winster Moor. The second defendant was represented before Ouseley J, but the application for interim relief was not pursued by the claimant. None of the parties thereafter made any application for expedition. The second defendant was not represented before me and neither of the defendants submitted any further evidence as to the extent of the working that had taken place since September 2004. The first defendant did not address this issue in its skeleton argument.
- In response to questions from me, Miss Patterson told me, upon instruction, that working had continued and that some 139,000 tonnes of fluorspar had been extracted to date. Thus, nearly 37% of the estimated 376,000 tonnes of fluorspar at Winster Moor has been extracted over a period of some 26 months since the planning permission was granted. As mentioned above, the permission is subject to a condition that extraction of the remaining fluorspar must cease at the end of July 2008; 20 months hence. In these circumstances I am very reluctant to quash the planning permission and would much prefer to have been able to confine any relief to the section 106 agreement, which is the real focus of the claimant's challenge. However, such a course of action would not be fair to the first defendant because, absent the section 106 agreement, it is plain that there would have been no planning permission. Equally, it would not be fair to the claimant to refuse to grant any relief, having concluded that there were serious failures in the decision -making process and that the three grounds of challenge in respect of the section 106 have been made out. Absent the section 106 agreement, the claimant would be able to implement the 1952 planning permission (subject to the Environment Act 1995 review, and to the proper interpretation of the permission) if it could negotiate the acquisition of the vein mineral rights from the second defendant. As things stand, the section 106 agreement prevents it from pursuing such a course of action. The second defendant has been on notice for some two years that its planning permission was under challenge. Very importantly, quashing the planning permission will not mean that extraction at Winster Moor must cease. Since the working will have been and will be taking place without planning permission, the first defendant will be able to issue an enforcement notice if it considers it expedient to do so in circumstances where the section 106 agreement has also been quashed. The enforcement powers available to the first defendant are sufficient to ensure that any injury to amenity is remedied (see section 173 of the Act).
- On the sparse information available it seems unlikely that enforcement action will be required. The second defendant is a responsible operator and there is no reason to believe that it will suddenly cease to comply with the conditions in the planning permission and/or that the first defendant will have to have recourse to enforcement action in order to persuade the second defendant to apply for a fresh planning permission to regularise the position.
- In these far from ideal circumstances, given the lack of any evidence about the consequences of the passage of time since the decisions under challenge were made, I consider that the least inappropriate course is to grant the claimant
- Yes, Miss Grekos?
- MISS GREKOS: It just remains for costs now. I believe we have served and filed with the court a costs schedule.
- MR JUSTICE SULLIVAN: I think you did. It is a long time since I looked at it but I think know I where it is. Just give me a moment.
- MISS REID: My Lord, I do not know if you need to see the schedule. I think my learned friend and I are in agreement that a detailed assessment will be appropriate in this case, in any event, given that the case lasted over two days.
- MR JUSTICE SULLIVAN: Yes, it did. Thank you, Miss Reid. Can I just check, is there any objection in principle to paying the costs? I did not think there could be. I am not suggesting there could be, but it seems to me they would follow the event.
- MISS REID: No, my Lord.
- MR JUSTICE SULLIVAN: Detailed assessment is clearly appropriate, is it not?
- MISS GREKOS: Correct, my Lord.
- MR JUSTICE SULLIVAN: Then I grant relief in the terms I have just set out, the application is granted and the first defendant is to pay the claimant's costs, those costs are to go for detailed assessment unless otherwise agreed.
- MISS GREKOS: Thank you.
Wednesday, 29th November 2006
In this application for judicial review the claimant challenges two decisions of the first defendant to grant planning permission to the second defendant and to enter into an associated planning obligation with the second defendant under section 106 of the Town and Country Planning Act 1990 ("the Act"). Both the planning permission and the planning obligation are dated 7th September 2004. The planning permission permits the "extraction of fluorspar and associated mineralisation" on land at Winster Moor. Winster Moor is situated within the Peak District National Park, for which the first defendant is the Minerals Planning Authority. The planning permission is subject to a condition which provides that no mineral extraction shall take place after 31st July 2008.
Factual background
The First Defendant's Consideration of the Winster Application
"Our informal proposals to forego working other areas in the Park were based on a request from yourselves in connection with a previous application. We offered to forego them as a planning gain in this application as you seemed keen for this to happen. We do not see this as a reason to hold up the determination of this application and are willing to see the application stand on its own."
"In considering the application, the applicant has offered to sell the vein mineral rights on the eastern end of Longstone Edge to the Authority for a nominal sum of £1, as a planning gain."
"Initial consultation - very concerned about the proposal. As submitted the proposal will have a major visual impact for the duration of the works and a moderate to high permanent impact on the character of the area. The Landscape Impact Assessment is not very comprehensive. ... Based on the information provided recommends refusal. Second and third consultation - the supplementary information covers most of the queries raised on the original landscape assessment. Taking this information into account remains of the opinion that the development would have a significant visual impact in the locality. Is of the opinion that the proposed development is major development, although acknowledges that the proposed timescale of operations is limited. Recommends refusal of the application, on the grounds of significant visual impact. However, aware that there is the possibility that the vein mineral rights may be given up for the majority of the eastern end of Longstone Edge. If this can be successfully secured and can be guaranteed to prevent the resumption of quarrying then on balance the benefits outweigh the 5 -year visual impact of the proposed development at Winster."
"Major development will not be permitted other than in exceptional circumstances where it is essential to meet a national need which overrides the national policy to protect the designated interest of the National Park",
the report considered whether there was a national need for the proposed mineral operations at Winster Moor, and having reviewed the relevant reports, concluded:
"There remains uncertainty over whether there is a national need for vein minerals (fluorspar) and the availability of alternatives pending the review of MPG 1. If the view of the consultant is maintained that reasonable alternatives exist then it would follow that there would be no national need to work the vein mineral from this site. Consequently, the proposed development would be contrary to Structure Plan policies GS1, M2 and M3.
In the interim pending the review of MPG 1 the applicant is prepared to rationalise existing operations and has offered the mineral rights it owns on part of the eastern end of Longstone Edge as planning gain. The rights offered are the vein mineral rights. The surface of the land and the rights to other minerals (limestone) are held by another party [the claimant].
The old mineral planning permission issued in 1952, and still subject to review under the provisions of the Environment Act 1995, is attached to land at the eastern end of Longstone Edge. This permission is for the winning and working of fluorspar and barytes and for the working of lead and any other minerals which are won in the course of working these minerals. This permission has proved to be highly controversial due to the differing interpretations placed on the wording of the permission. The Authority has taken the view in the past that the permission is primarily for the winning and working of vein minerals and the other minerals (limestone) can only be won in the course of working the vein minerals, effectively as an ancillary mineral. The owner of the surface and the limestone considers the permission allows for the working of limestone.
If the Authority was to own the vein mineral rights for much of the eastern end of Longstone Edge, or obtain a legal agreement whereby the current owner (the applicant) agreed not to work these rights, then the view can be taken that no further winning of other minerals can take place, in order to be compliant with the terms of the 1952 planning permission. The next step would then be consideration of serving a revocation order.
Effectively the applicant is willing to give up the rights to work one area in exchange for obtaining planning permission to work another. Officers consider that there is a net benefit to the Authority in such an exchange. Material considerations therefore exist in allowing the development to take place as a departure from Structure Plan policies GS1, M2 and M3."
"The Authority's Landscape Architect recommends refusal of the application on grounds of significant visual impact. However, if the eastern end of Longstone Edge can be safeguarded from working then the benefits of this outweigh the 5 years of visual impact of the proposed development at Winster.
On its face the proposal appears to be contrary to policies GS1 and C2 of the Structure Plan and local Plan policy LM1. However, this does not take into account the subsequent offer by the applicant to sell or relinquish its mineral rights on the eastern end of Longstone Edge. Under these circumstances, your officers are of the opinion that the application proposals represent the least environmental impact option on the valued characteristics of the National Park. Material considerations therefore exist for allowing this development as a departure from policies GS1, C2 and LM1."
"Lorries leaving the site would turn right onto the C39 Winster/Pikehall Lane and travel 300m before turning left onto the B5056. Lorry traffic would then travel to Cavendish Mill via the A6 and the B6465. The traffic generated by the proposal would average at 20 lorries (20 tonne loads) per day, up to a maximum of 25 lorries per day. This would result in an average of 40 lorry movements, up to a maximum of 50 lorry movements per day. The generated traffic is not considered to be significant. The generated traffic volumes for the proposed development, in terms of composition of the traffic flows, are not significant on the A6. The percentage increase in HGV traffic on the B5056 and the B6465 would however by higher, rising from 4% to 8%, because the existing traffic flows are significantly lower. This is not an untypical composition for such roads. The road network is considered to have an adequate capacity, both along its links and junctions, to accommodate the proposed lorry traffic. The proposed development would replace the extraction operations at Tearsall that are planned to close down at the end of 2003."
"The applicant owns the freehold vein mineral rights on part of the eastern end of Longstone Edge and has offered to sell them to the Authority for £1 as planning gain. The Authority has power to acquire interests in land by agreement under s227 of the Town and Country Planning Act 1990 where it is necessary in the proper planning of the area. However, officers will need to consider what liabilities may be attached to such a transfer. On the other hand the applicant may be prepared to enter into a planning obligation whereby the company would agree not to further implement its rights to win and work vein minerals, resulting in a deemed revocation of the permission. Your officers are considering which option would be the most appropriate from the Authority's point of view but in the meantime seek authority for both courses of action. Your officers are also considering whether a formal revocation order should be made and authority for this will be sought at a later date if it is felt to be expedient."
"Factors against
Uncertainty whether there is a national need for fluorspar. (The Government are currently evaluating the situation through the review of MPG1)
Alternative sources of supply are available.
Landscape and visual impacts from distant medium and local viewpoints for the duration of the operations and landscape impact following completion of development.
Factors in support
Planning gain obtained from transferring or securing the rights to work vein mineral or obtaining a legal agreement from the applicant agreeing not to work the vein mineral rights on part of the eastern end of Longstone Edge.
Continuation of supply of vein mineral in order to sustain the business, employment and the future of UK acid grade fluorspar production."
"Members will need to judge the proposal against the Structure Plan and Local Plan policies and all other material considerations, including taking account of the details provided in the Environmental Impact Assessment. This is a major proposal and it is important that a rigorous assessment is carried out. If Members are minded to accept the proposal they would need to be certain that either there was a national need for the mineral and/or there were exceptional circumstances or material considerations whereby an approval would be in the public interest and would conserve or enhance the character of the National Park. On the other hand if Members wish to refuse the application there must be clear and specific reasons for the refusal that could be defended on appeal, if necessary.
Alternative sources of fluorspar are considered to be available and as such the view can be taken that there is no national need for the development to take place at this site. There are visual impact objections to the proposal. However the offer to transfer or secure the vein mineral rights over a significant area of the eastern end of Longstone Edge and the possibility of safeguarding the area from a further 40 years of working carries significant weight.
Material considerations therefore appear to exist whereby approval, with an associated legal agreement, would result in an overall net benefit to the National Park and be in the public interest. Officers therefore recommend approval of the application as a departure from the Authority's Development Plan policies subject to prior conclusion of a legal agreement and conditions."
"... the applicant formally agrees to transfer the freehold vein mineral rights on part of the eastern end of Longstone Edge to the Authority and/or agrees not to work the vein mineral rights without payment of compensation ..."
"... requested that the planning decision notice should be accompanied by a letter emphasising that the key factor in the decision to approve was the relinquishment of rights on Longstone Edge. The Authority were not determining whether or not there was a national need of fluorspar. They were awaiting revision of Minerals Planning Guidance No 1."
"Alternative sources of fluorspar were considered to be available and as such the view could be taken that there was no national need for the development to take place at the site. There were also visual impact objections to the proposal. However, the offer to secure the vein mineral rights over a significant area of the eastern end of Longstone Edge and the possibility of safeguarding the area from a further 40 years working carried significant weight.
Material considerations existed whereby approval, with an associated legal agreement, would result in an overall net benefit to the National Park and be in the public interest. The legal agreement would contain a clause whereby the applicant agreed not to work the vein mineral rights, without compensation, at the eastern end of Longstone Edge, and the setting up of a restoration bond."
"No mineral shall be extracted from the site other than vein ore containing fluorspar suitable for processing at Cavendish Mill. No limestone (waste, overburden and host rock) shall be removed from the site."
The judicial review proceedings
"(a) sustainability, (b) planning implications of the Mines (Working Facilities and Support) Act 1966, (c) Circular 1/97 [as a] material consideration."
Circular 1/97
"1. Annex A to DOE Circular 16/91 explained the effect of certain of the provisions in sections 12 and 83 of the Planning and Compensation Act 1991. Annex B to that Circular gave policy guidance to local planning authorities on the use to be made of planning obligations under section 106 of the Town and Country Planning Act 1990 as amended by the 1991 Act.
2. The advice contained in Annex B to Circular 16/91 was held to be lawful by the House of Lords in Tesco Stores Limited v Secretary of State for the Environment and others [1995] 1 WLR 759; [1995] All ER 636. Annex A to this new Circular therefore repeats and reaffirms that advice; it also clarifies existing guidelines on a number of detailed matters.
Policy and the law
3. On a number of occasions the courts have laid down the legal requirements for the validity and materiality of planning obligations.
4. This Circular sets out the Government's policy for the use of planning obligations."
"6. To retain public confidence, such arrangements must be operated in accordance with the fundamental principle that planning permission may not be bought or sold. This principle is best served when negotiations are conducted in a way which is seen to be fair, open and reasonable; in this way, and properly used, planning obligations may enhance the quality of development and enable proposals to go ahead which might otherwise be refused. Annex B to this Circular explains the detailed policies which the Secretary of State considers provide the best means of ensuring that there is adherence to this principle.
7. Amongst other factors, the Secretary of State's policy requires planning obligations to be sought only where they meet the following tests:
(i) necessary;
(ii) relevant to planning;
(iii) directly related to the proposed development;
(iv) fairly and reasonably related in scale and kind to the proposed developments;
(v) reasonable in all other respects.
8. These matters are more fully spelt out in:
Annex A which sets out the statutory framework for planning obligations.
Annex B which explains the use of policies of the Secretary of State and provides guidance on the use of planning obligations to developers and local planning authorities."
"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
... an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
" ... this is not the class of case in which Mr Gordon [who appeared on behalf of the claimant] is able to point to any specific element of the grant of planning permission or the officers' report upon which it was based to demonstrate that the Circular guidance has been overlooked. His case has to be that the reasoning offered to and adopted by the Committee does not overtly either follow or give reasons for departing from the guidance.
The Circular itself, it should be noted, is expressly referred to in paragraph 14 of the Secretary of State's decision letter which was before the Committee, because at that stage the Secretary of State took the view that the undertakings did not conform to the guidance in the Circular 'in that they are necessary to the granting of permission for the Whatley quarry extension, nor do they resolve the planning objection to the grant of such permission'. But these are the very issues addressed by the whole of the officers' report and the consequent resolution of the Committee. I do not overlook the difficulty of proving a negative, but the material before me does not get this submission, in my judgment, through the starting gate. The content and process of decision -making in this case are entirely consistent with the Committee's having had properly in mind, among other things, the reasons for the Secretary of State's earlier refusal of planning permission and the material parts of Circular 16/91; and there is no separate evidence that they were overlooked."
"Regard to Circular 1/97 and the training of Members of the Authority
49. The Head of Development Control was aware of Circular 1/97 and had regard to it in writing the report and making his recommendation to the Planning Control Committee. Officers of the Authority in fact sought legal advice on whether the offer to relinquish the vein mineral rights on the eastern end of Longstone Edge in connection with the development at Winster met the tests of reasonableness outlined in Circular 1/97. The advice received was that the offer to relinquish mineral rights as part of a mineral proposal was a relevant material consideration.
50. Members of the Committee were aware of Circular 1/97 and in broad terms its contents as a result of their planning training as decision makers. A seminar on 'Training in Town and Country Planning for Members' was held on 10 July 2003 using The Planning Co -operative as facilitators. I refer to the handout given to the participants in the training session marked 'Document DGB 11'. Page 13 of the training document covered 'Planning Obligations - a Summary of S106'. The document advised that s106 of the 1990 Act provides for obligations as a means to improve the quality or reduce the adverse impact of the proposed development, subject to the tests of reasonableness set out in Circular 1/97. They must satisfy one of the following:
be necessary for the development to proceed;
be directly related to the development;
be needed to secure a mixed use development;
be in the interest of amenity;
and in addition the provision must be
related in scale and kind to the development.
51. 17 out of the 19 committee members present at the committee on 28th November 2003 had attended the training presented by the Planning Cooperative on 10 July 2003 or a very similar event in 2001. I refer to a letter to members relating to planning training dated 27 June 2003 and the Authority's records of attendance at the training in 2001 and 2003 marked 'Document DGB 12'.
52. Members of the Planning Control Committee are familiar with the use s106 Agreements. On average 30 reports per year are considered by the Planning Committee where the provision of a s106 agreement is a material consideration. The agreements are used to cover such areas as local occupancy, agricultural occupancy, ancillary occupancy, end use control of minerals, relinquishment of old mineral and other permissions, green travel plans, highway improvements, restoration bonds and funds for mineral working.
53. The report to the Planning Control Committee considering the Winster application did not make reference to Circular 1/97. A report does not have to make explicit reference to every piece of government guidance that has a bearing on the application. The approach taken in this case was to examine whether, firstly, the proposed agreement was a material consideration and, secondly, what weight should then be attached to it and as part of the second exercise the Authority had regard to the contents of Circular 1/97 and in particular Annex B."
"Planning Obligations - A Summary of S 106
Section 106 of the 1990 Act provides for Obligations as a means to improve the quality, or reduce the adverse impact of development proposals. They are potentially wide ranging and can cover any aspect of the proposed development, subject to tests of reasonableness set out in circular 1/97. They must satisfy one of the following:
- be necessary for the development to proceed (eg provision of an adequate access)
- be directly related to the development (eg local facilities or affordable housing in a housing development)
- be needed to secure a mixed use development (eg workplace units in a residential scheme)
- be in the interests of amenity (this is open to wide interpretation)
and in addition the provision must be
- related in scale and kind to the development."
"4. I have always been aware of the complexity of many of the development proposals for minerals in the National Park and have always sought to ensure that I keep up to speed with national planning guidelines as they affect policy changes. I regularly attend planning training for members organised by the Authority and attended the training provided by the Planning Co -operative in 2003.
5. Members of the planning committee regularly deal with s106 agreements and are familiar, through planning training, with the tests to be applied. For detailed matters they rely on officers to advise. The committee regularly resolves to grant permission subject to s106 agreements. The areas covered by the agreements include such matters as local occupancy restrictions, agricultural occupancy restrictions, ancillary occupancy restrictions, agreements not to implement planning permission, green travel plans, highway improvements and bonds for mineral working.
6. The planning issues associated with Longstone Edge have always been high profile for the Authority for a number of reasons:
- because of the prominence of the Edge in the local landscape
- the scale of the proposal
- the impact on the landscape that the proposal would have, if permission were granted and it was worked to its full extent
- the long planning history associated with the site
- the longstanding objections to the proposal from local people and national bodies.
7. I made it my business to make sure I was fully appraised of new proposals and developments by thoroughly reading all the papers presented to the committee and by attending formal member site visits. I live within 4 miles of Longstone Edge and am fully aware of its importance in the Peak District landscape. I am also extremely familiar with the site at Winster which is the subject of this review.
8. The planning committee has always had the highest quality reports from planning and legal officers on mineral issues. These include exhaustive information on the planning history of sites. This was certainly the case on November 28 2003.
9. It was very clear to me what was being proposed in relation to the possible working at Longstone Edge and the proposals at Winster. We were appraised fully on the landscape impacts of both proposals, potential traffic movements, hours of working and the overall relative merits or otherwise of both sites. I have no doubt in my mind whatsoever that all members of the committee were given more than adequate information to make their decision. I recall the long debate during which all aspects of the proposals were fully discussed. I also recall members coming to a unanimous view that the Winster proposal should be approved subject to the tightest conditions and legal agreements to relinquish the land with planning permission at the eastern end of Longstone Edge.
10. The key issue for me was that far tighter control could be exercised over the Winster proposal than for the existing permissions at Longstone Edge. In addition, in coming to my decision to vote in favour of the proposal at Winster I weighed the facts that the area to be worked at Winster was much smaller, it would have much less of an impact on the Peak District landscape and it would be worked for a much shorter timescale, against the prospect of working Longstone Edge, and the vast scale of the scar that would be created if development went ahead. In my view the certainty of future control over the Winster site by the imposition of modern planning conditions far outweighed the high degree of uncertainty associated with Longstone Edge. I was concerned that there was some possibility of the eastern end of Longstone Edge being worked in the future and I felt that there was great benefit to be gained in ensuring that it could not happen.
11. In my view the proposals came within the tests of the circular 1/97."
"The Longstone Edge Case
4. The Longstone Edge case is a long -standing and locally contentious issue which Members had been dealing with since before my appointment. I am very aware of the details of this case, and the particular issue surrounding the definition of the minerals rights as set out in the 1952 planning permission.
5. Following the listing of the site as 'active' in 1996, and the determination of planning conditions by the Authority which effectively required no removal of limestone or any other mineral than vein minerals excepting a minimum amount required to 'win' the vein material, it has been clear that the old planning permission relating to this site needed clarification. Previous and current owners of the minerals rights of the site have contested these planning conditions.
6. Members have received many detailed reports on mineral working at Longstone Edge, and have visited the site on numerous occasions (I have visited the site on at least three occasions). The site is prominent in the local landscape and its impact on local communities and visitors, particularly traffic and dust, is of major concern. I feel that I am familiar with the issues that Longstone Edge raises.
7. The Authority has made attempts to clarify the position on some areas covered by the old planning permission, including a consolidating application covering the western end of Longstone Edge agreed by the Authority in 2002. However, despite previous agreements, and following the arrival of new operators at the site, it has become clear that the mineral consents relating to the Backdale part of the Longstone Edge site are not yet resolved. This is now the subject of an appeal against the Authority's enforcement notice to prevent the removal of limestone or any other mineral other than vein minerals excepting those required to 'win' the vein mineral.
8. It is hoped that the Winster agreement has led to the clarification of the situation at the eastern end of the site - ie by attaching an agreement by the mineral owner not to work the vein mineral rights. Whilst I understand that the situation is complex, in that a different owner owns the surface of the land and the rights to other minerals (including limestone), our committee report was clear in that the cessation of the vein minerals consents may effectively bring mineral working at this end of the site to a close. Thus not only were the vein minerals rights gained, but also the uncertainty that the old planning permission might allow the removal of additional limestone was removed.
The Winster Moor Vein Minerals Application
9. It was clear form the committee report on 28 November 2003 that this was a major application. The details provided on the case were very full and I was pleased to see extensive consultation across all departments in the Authority and widely amongst both statutory and non -statutory interests. I was particularly concerned about our Landscape Architect's comments, which clearly stated that the proposal had a major visual impact, particularly in the short term.
10. Without the mitigating environmental benefits provided by the planning agreement to give up the minerals rights at the eastern end of Longstone Edge, this application would have been unacceptable to me. It was clearly against our minerals policies and would have a detrimental impact on the landscape.
11. However, the environmental net gains when attached to the planning agreement also seemed clear. The length of time of the workings at Winster was significantly shorter (only four years of operational working), the area covered was significantly less, and modern landscape and working conditions could be attached to the permission. In addition, the uncertainty over the possible removal of additional limestone from the eastern end of Longstone Edge was also clarified - a massive environmental gain. Under the existing planning permission at Longstone Edge, it seemed to me that there remained the prospect of both vein minerals and limestone being removed from that site. This wold have caused a huge scar in the landscape, and led to major traffic issues through the removal of aggregate by road. The Authority's Landscape Architect's comments in the Winster report confirmed my view that the potential landscape impact at Longstone Edge, if the eastern end was to be developed, would be far greater than that at Winster. I felt that the eastern end of Longstone Edge could be worked in the future and I wanted to ensure that this was prevented as far as possible. These factors were significant in my final decision.
Circular 1/97 and Planning Gain
12. I have attended several planning training workshops provided by the Authority. I also have a relevant planning qualification, and I currently teach a short planning course to my countryside management students. I therefore believe that I have a reasonable understanding of the principles of planning gain and s106 agreements enshrined in Circular 1/97 (which was relevant at the time of this case).
13. The Authority's Planning Committee regularly resolves to grant planning permission subject to s106 agreements dealing with a wide variety of matters.
14. In this case, the applicant was agreeing to give up minerals consents on one area in order to obtain minerals consents at another, and these seemed to me to be both reasonable and directly related."
"2. I became a member of the Planning Control Committee in May 2003 and have attended almost all the Committee meetings since then, including the meeting on 28 November 2003 when the Winster application was determined. I attended the Authority's planning training provided by the Planning Co -operative in July 2003 which discussed among other things s106 agreements and Circular 1/97. I am familiar with the fundamentals of the planning system through my planning qualification and membership of the Royal Town Planning Institute.
3. At the time of the November 2003 Planning Committee I was fully aware of the Longstone Edge circumstances and history. I had read previous Committee reports on Longstone Edge and was very concerned about the fact that different interpretations of the wording of the 1952 permission placed some risk on the future of this sensitive site. For instance, there were - and still are - concerns about what conditions could be applied to working particularly at the eastern end of Longstone Edge area in view of the 'active' nature of the site; and there were - and still are - arguments over whether the 1952 permission allowed for the extraction of limestone as well as vein minerals. The November 2003 meeting contained an update item on Longstone Edge, including discussion of the developments at the eastern end site of Backdale, where another developer was extracting significant quantities of limestone and maintaining that the 1952 permission allowed for this. This was undermining, literally and figuratively, the survival of the landscape. The update also described the consolidating application that had previously been determined for the western part of the edge, which would effectively secure the landscape against massive limestone extraction and would restrict the period of operation for vein minerals. The update report was dated before the Winster application was dealt with. I was convinced that the relinquishing of mineral rights on the eastern end of Longstone Edge would bring significant benefit to the National Park, in line with National Park purposes. I was concerned that there was a real possibility of Longstone Edge being worked at some time in the future.
4. As regards the Winster application, which had a very thorough Committee report, I was aware that the development - vein mineral extraction (with limestone extraction limited to that needed for extracting the vein minerals) - could be tied to a s106 agreement relinquishing mineral rights on Longstone Edge, and that these two issues were directly related to each other. I knew that benefits achieved through s106 agreements are material considerations in planning decisions and was aware of the tests needed before a s106 could be entered into: I was confident on officers' ability to comply with these tests. I was also aware of the PPG7 conditions for major developments in National Parks and of the uncertainties surrounding the national need for fluorspar, but I was satisfied that on balance a decision to grant planning permission would accord with PPG7. I was also aware that this 'on balance' consideration meant that there were aspects that were against policy, and that an approval would therefore be referred to the Office of the Deputy Prime Minister and could be called in by the Secretary of State.
5. In arriving at this on balance conclusion I considered the harm that might be done to Longstone Edge as against the Winster area. I was reassured that in granting permission for major development at Winster, considerable controls could be exerted through conditions attaching to any planning approval, whereas this was not so at Longstone Edge site, which had an extant 1952 permission that had not yet been reviewed under the 1995 Environment Act, and so did not have the sort of modern conditions attached to it that would help to safeguard the National Park. For instance, at Winster the operation, restoration and aftercare would be able to be conditioned in a planning approval and completed in 10 years (with on 5 years giving significant visual impact through working and restoration), whereas Longstone Edge's current permission was for working for another 40 years and did not include modern restoration and aftercare conditions.
6. Another factor that affected my 'on balance' conclusion was that I considered the landscape at Longstone Edge to be a more sensitive one than that at Winster, being in a more prominent position and able to be seen from a wide surrounding area, and the damage done to it during the course of possible quarrying would not be able to be mitigated in the way that it would, with aftercare and restoration, at the much lower level Winster site. I noted that the landscape architects, although concerned about the landscape impacts, considered that the Winster proposal would have a lesser impact on the Park's valued characteristics. To compound this there was also a risk at Longstone Edge that this more sensitive landscape was even more at risk in view of a legal challenge relating to another part of Longstone Edge (Backdale) over the extent of limestone extraction allowed by the 1952 permission 'in the course of winning and working' the vein minerals. Although the National Park Authority considered that the 1952 permission meant that only small amounts of limestone could be extracted, the developer at Backdale was challenging this interpretation, and a risk existed that the courts would go along with the developers' interpretation, and if so a huge impact on this limestone edge landscape would result. I considered that in view of the planning gain on Longstone Edge, development at the less sensitive, more controllable Winster site was acceptable and in the public interest and that the proposed s106 agreement was reasonable. I accepted the advice of the highways agency that any traffic implications were acceptable.
7. Overall I considered that in view of the planning gain on Longstone Edge, development at the less sensitive, more controllable Winster site was acceptable and in the public interest and that to enter into a s106 agreement was reasonable."
"was not attempting to set out the tests found in paragraph 7 of the Circular. What it was doing was paraphrasing the guidance found in Annex B of the Circular and particularly that in paragraphs B8 to B12 which give a general indication of what might be reasonable (paragraph B8) in terms of benefits provided by planning obligations."
"The tests to apply for their use are that they should be necessary, relevant to planning, directly related to the proposed development, fairly and reasonably related in scale and kind to the proposed development and reasonable in all other respects."
"B3. Acceptable developments should never be refused because an applicant is unwilling or unable to offer benefits. Unacceptable development should never be permitted because of unnecessary or unrelated benefits offered by the applicant. Those benefits or parts of benefits which go beyond what is strictly necessary should not affect the outcome of a planning decision ...
B4. An obligation which goes beyond the guidance set out in this Annex will not necessarily be unlawful. But it should be given very little weight in the determination of an application. If more is offered than is necessary, the benefits or the parts of those benefits which are unnecessary should not be allowed to affect the decision ..."
"The second way in which the relevance of the section 106 agreement is raised concerns the question of whether there was any rational planning nexus between the permission granted at Winster Moor and the mineral rights surrendered some 14 kilometres away at Longstone Edge East. This is also a site within the National Park, the development of which, it was said, would be visually damaging and damaging to the landscape character of the National Park. The 1952 permission would permit work to take place over a larger area and for a much longer period. I regard it as perfectly obvious that a National Park Authority faced with old permissions, potentially less well controlled or controllable, in an area with which it is necessarily familiar, if only because of the controversy over Backdale, is entitled to look at the overall gains and losses to the environment of the National Park and the Peak District in deciding whether or not to grant or refuse permission. There is plainly a planning nexus not from geographical proximity because no question of intervisibility as such was raised, but from the impact which the one and the other may have upon the Peak District Park and the advantages that accrue from using the one rather than the other to reduce the damage to the park. In adopting such an approach the National Park Authority was acting in a way in which it has not been uncommon for Mineral Planning Authorities to act over many years now. So those grounds I regard as simply untenable."
"An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker and in exercising that discretion he is entitled to have regard to his established policy. The policy set out in the Circular 16/91 is intended to bring about certainty and uniformity of approach, and is directed among other things to securing that planning permissions are not bought and sold. It is not suggested that there is anything unlawful about Circular 16/91 as such."
"This brings me to the relationship between the policy and the law. I have already said that the first limb of the test in paragraph B5 of Circular 16/91 marches together with the requirements of the statute. But the second - the test of necessity (and proportionality) - does not. It is well within the broad discretion entrusted to planning authorities by section 70 of the Town and Country Planning Act 1990. But it is not the only policy which the Secretary of State might have adopted. There is nothing in the Act of 1990 which requires him to adopt the tests of necessity and proportionality. It is of course entirely consistent with the basic policy of permitting development unless it would cause demonstrable harm to interests of acknowledged importance. But even that policy is not mandated by Parliament."
"If Bleaklow challenges the Authority's decision to grant planning permission at Winster then the Authority will defend its position and believes that its actions will stand up to scrutiny. The Authority is not convinced that the Mines (Working Facilities Support) Act 1966 will assist Bleaklow. Bleaklow has consistently failed to provide any evidence that any substantial quantities of vein minerals (fluorspar) exists in the area offered up by Glebe. Glebe, who are the owners of the mineral and the principal vein mineral processors in the country do not consider that any substantial quantities of vein mineral exist in the area. The need for the mineral would need to be assessed against the need to protect the National Park. There is considered to be no national need for the limestone to be worked from the site."
"11. In granting the planning permission, the first defendant was concerned to ensure that there wold be no further vein mineral extraction at Peak Pasture, Longstone Edge, within the National Park. Laporte Minerals had undertaken exploratory works on Peak Pasture and reviewed its historical production data from this area. Laporte Minerals found that there was no evidence to support any significant vein mineral reserves (fluorspar). The Second Defendant is expert in its field and agrees with this view.
12. At this point I would like to define what I mean by a 'mineral reserve'. A 'mineral reserve' is the economically mineable part of a measured and/or indicated mineral resource. It includes diluting materials and allowances for losses, which may occur when the material is mined. Appropriate assessments, which may include feasibility studies, will have been carried out, including consideration of, and modification by, realistically assumed mining, metallurgical, economic, social and governmental factors. These assessments demonstrate at the time of reporting that extraction is justified. The fundamental underpinning principle of reserve/resource evaluation and the terminology used is the issue of geological confidence. Consistent with the Second Defendant's policy of not pursuing mineral extraction activities on areas of land where there is unlikely to be economically viable fluorspar veins, pursuant to the section 106 agreement, the Second Defendant covenanted that it would not seek to allow its mineral rights at Peak Pasture to be disturbed."
"The gist of the dispute is that the first defendant considers that the other minerals referred to in the permission must be subsidiary to the specified minerals and that the only limestone that may be worked is the minimum that is required to work the vein mineral. While the claimant and the [second defendant] consider that provided there is a genuine working of the specified minerals, any other minerals can be worked as part of the same operation."
"... a massive environmental gain. Under the existing planning permission at Longstone Edge, it seemed to me that there remained the prospect of both vein minerals and limestone being removed from that site. This would have caused a huge scar in the landscape, and led to major traffic issues through the removal of aggregate by road."
"Unacceptable development should never be permitted because of unnecessary or unrelated benefits offered by the applicant. Those benefits or parts of benefits which go beyond what is strictly necessary should not affect the outcome of a planning decision."
Sustainability
"7. There is a third and related point which Mr Kingston makes. What he says, and this was the development of the point, is that if it is legitimate in deciding whether to grant permission for something, which taken by itself would not get permission, to take account of the benefit accruing from the surrender of other mineral rights, there has to be more provided in order for a proper comparison to be done that was provided at least in the officer's report here. It is correct that there is comparatively little by way of analysis of the potential impact of the working of the eastern end of Longstone Edge. The Authority's landscape architect recommended, and his recommendation was accepted by the officers, that the safeguarding of the eastern end of Longstone Edge would outweigh the visual and landscape damage assessed to occur at Winster Moor. Mr Kingston submits in essence, although these are not perhaps his words, that in order for the NPA rationally to conclude that the one so outweighed the other as to warrant the grant of planning permission, there were a number of issues which required to be spelt out or considered in more detail. Another way of putting the same point would be a contention that the generality of the language used in relation to Longstone Edge meant that a number of material considerations were ignored. Over what sort of area would the workings take place? What sort of duration? What sort of protection might be available? What would be the sort of view points which would be affected? What would be the landscape character after the workings had taken place?
8. It is convenient here to refer to the issue which he raised under the question of sustainability, though I think it belongs more aptly under this head. What was the difference in terms of heavy goods vehicles movements from the point of view of environmental as opposed to road traffic impact, comparing the journeys from the one site to Cavendish Mill where the minerals would be processed and the distance from the other site to the same mill where at least any fluorspar would be worked. It is accepted that there is a difference of some 12 to 13 kilometres at least as between Winster Moor to Cavendish Mill and Longstone Edge to Cavendish Mill, although that may not be the true comparison for limestone extracted.
9. I have taken the view notwithstanding that this point has emerged late in the day and notwithstanding that there may be a fully satisfactory answer forthcoming in evidence as to the understanding which members of the Authority would have from their work as members of the Authority about what the impact of working at Longstone Edge would be, that it is just about arguable that the two ways of putting the case, ie rationality and having regard to material considerations, can be made out at this stage. Mr Kingston rightly recognises that it would be futile to expect a worked -up scheme of a comparable level of detail to that which would be necessary for a planning application, but there may be something in the argument that if not more were known about the impact of working at Longstone Edge than appears in the Committee Report that there were some material considerations which were ignored or that so little was known that a critical judgment - and it is acknowledged that the section 106 was the critical feature in the grant of permission - that the critical judgment could be regarded as irrational.
10. I have included within that topic the question of sustainability through heavy goods vehicle movements. I say it seems more apt under that head because save for that factor the question of sustainability is a broad concept and it appears to have been addressed in the round. There are a number of factors which go to it, but HGV movements are a feature of sustainability that is particularly identified and it seems to me that it is relevant to that ground - that is to say the question of how much was known or understood about Longstone Edge East."
"59. At the same Planning Control Committee considering the Winster proposals, under agenda item 7.1 a report was presented to update Members of the Committee of the latest situation regarding mineral operations on Longstone Edge. I refer to the report marked 'Document DGB13'. The report provided background history of the mineral permissions, including the 1952 planning permission, the extent of the permissions forming the Longstone Edge site, (as defined under the provisions of the Environment Act 1995) and the extent of the 'consolidating application'. The report referred to the controversial nature of the site and the problems associated with the workings at the eastern end of Longstone Edge, particularly at Backdale, arising from the interpretation of the wording of the 1952 planning permission and that the permission covered 158 hectares. The report referred to the Environment Act submission and the plans put forward to develop a 15 ha working to a depth of 60 m, releasing significant quantities of limestone. (RMC considered the Environment Act allowed for an initial 15 year working plan, with further plans being provided in the periodic review to extend the workings into remaining areas of the 1952 permission. The approach taken by RMC was disputed).
60. The report at 7.1 also referred to the Planning Control Committee resolution to approve the application to consolidate the old planning permissions on the western end of Longstone Edge. Members of the Planning Control Committee had visited the Longstone Edge site on 12 October 2001 to inspect the site and its surroundings, the extent of the existing permissions and consider the consolidating proposal against the Authority's Development Plan policies.
61. Members of the Planning Control Committee are familiar with mineral workings and the impact that such workings can have on the designated environment of the National Park. The damaging impact of the Backdale working on the landscape of the National Park is evident for all to see and is well publicised. A significant number of complaints from local residents, visitors and other bodies have been received that have been directed at members of the Authority (and officers) over Backdale. Members are fully aware of the implications for the designated landscape if the working methods adopted at Backdale are allowed to develop into the area in which Glebe has agreed not to work the mineral rights that it owns.
62. After consideration of the Winster application enforcement action was authorised by the Planning Committee at its meeting on August 2004 to stop the alleged unauthorised working of limestone beyond the scope of the 1952 planning permission. A public inquiry opened on 14 September 2005 but was adjourned to April 2006."
"It is very clear to me what was being proposed in relation to the possible working at Longstone Edge and the proposals at Winster. We were appraised fully on the landscape impacts of both proposals, potential traffic movements, hours of working and the overall relative merits or otherwise of both sites."
The Mines (Working Facilities and Support) Act 1966
"1. The court may, subject to and in accordance with this Act, confer any rights described in the Table below.
TABLE
Paragraph 1 of Table
(1) This paragraph applies to any minerals other than ... peat cut for purposes other than sale.
(2) A right to search for or work any minerals to which this paragraph applies may be conferred on any person (exercisable either by himself or through a lessee).
(3) Where the working of any minerals to which this paragraph applies, or the working of any such minerals in the most efficient and economical manner, is impeded by any restrictions, terms or conditions contained in a mining lease, or otherwise binding on the person entitled to work the minerals, a right may be conferred to work the minerals freed wholly or partially from the restrictions or conditions, or to work the minerals on other terms and conditions."
"(1) No right shall be granted under section 1 of this Act unless court is satisfied that the grant is expedient in the national interest.
(2) No right shall be granted under section 1 of this Act unless it is shown that it is not reasonably practicable to obtain the right by private arrangement for any of the following reasons -
(a) that the persons with power to grant the right are numerous or have conflicting interests;
(b) that the persons with power to grant the right, or any of them, cannot be ascertained or cannot be found;
(c) that the persons from whom the right must be obtained, or any of them, have not the necessary powers of disposition, whether by reason of defect in title, legal disability or otherwise;
(d) that the person with power to grant the right unreasonably refused to grant it or demands terms which, having regard to the circumstances, are unreasonable."
"(1) An application for the grant of a right under section 1 of this Act shall be sent to the Minister ...
(2) The application shall set out the circumstances alleged to justify the grant of the right, and shall be in such form and accompanied by such information verified in such manner as the Minister may direct.
(3) The Minister shall consider the application, and shall, unless after communication with such other parties interested (if any) as he may think fit, he is of the opinion that a prima facie case is not made out, refer the matter to the court:
Provided that, where it is alleged that the right in question cannot be obtained by reason of any person not having the necessary powers of disposition, or having unreasonably refused to grant it, or having demanded terms which are unreasonable, the Minister shall not refer the application to the court without first having communicated with the person."
"(1) Where a matter is referred to the court under the last foregoing section, the court, if satisfied that the requirements of this Act are complied with in the case of the applicant, may, by order, grant the right on such terms and subject to such conditions, and for such period, as the court may think fit, and upon such an order being made, the right specified in the order shall, subject to the following provisions of this Act, vest in the applicant.
(2) Where a right is granted, such compensation or consideration as in default of agreement may be determined by the court shall be paid or given by the applicant in respect of the acquisition of the right to such persons as the court may determine to be entitled thereto. ...
4. In determining whether any right should be granted or the conditions upon which any such right should be granted the court shall have regard to all the circumstances of the case ... ."
"We make the comment that, even if the interests in the relevant minerals (ie the vein minerals and any necessarily extracted adjoining minerals) are not in the ownership of the Claimant it does have a statutory right to seek working rights on reasonable terms in respect of such minerals."
"Whether or not the Claimant has a statutory right to seek working rights on reasonable terms does not affect the Authority's position with respect to planning decisions."
"68. The statutory requirement to protect the National Park from development other than in exceptional circumstances would have to be taken into account by the Secretary of State [under s 4(3) of the Act] and would weigh heavily against the application succeeding. An application to work limestone would [be] unlikely to be successful in view of the availability of alternatives elsewhere.
69. Whilst officers had regard to the Act of 1966 and 1974, in view of the aforementioned comments, the report to the committee did not make reference to them due to the remoteness of the legislation and the unlikelihood of the application being successful. It should be noted that there is no reference to the 1966 and 1974 Acts in MPG1 Annex D - Legislation Relevant to Minerals Planning."
"2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account."
Other considerations
"6. If the judge concludes that the matter was 'fundamental to the decision', or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision -making process, then he does not have before him the material necessary for him to conclude that the decision was invalid."
(a) that there was such risk if they had known that the second defendant and the first defendant's officers believed that there were unlikely to be economically viable fluorspar veins in the section 106 land;
(b) that in preventing large scale limestone extraction by the claimant at Longstone Edge, the section 106 agreement met all of the tests in paragraph 7 of Circular 1/97; or
(c) that the section 106 agreement ensured that there would be no such working, bearing in mind the claimant's right to make an application under the 1966 Act.
(a) declaratory relief that the first defendant's decisions to grant planning permission and to enter into the section 106 agreement were unlawful,
(b) a quashing order in respect of (i) the planning permission, and (ii) the section 106 agreement, both dated 7th December 2004,
(c) the quashing order in respect of the section 106 agreement is to have immediate effect,
(d) however, I will suspend the quashing order in respect of the planning permission dated 7th September 2004 for a period of six months so that working can lawfully continue with the benefit of that permission while the first defendant and the second defendant decide how best to regularise the position by way of a fresh application for planning permission with or without a section 106 agreement and/or by way of enforcement action.