QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
|THE QUEEN ON THE APPLICATION OF HIGH PEAK SPAR LIMITED|
|ERNEST HINCHLIFFE LIMITED||Claimants|
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|PEAK DISTRICT NATIONAL PARK AUTHORITY||Defendants|
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Mr P Brown QC (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
Mr R McCracken QC (instructed by Peak National Park Authority) appeared on behalf of the Second Defendant
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"... for the winning and working of fluorspar and lead by opencast methods and by removing old spoil heaps, and for the disposal of the resulting waste, in the areas shown within the bold black lines on the attached plan, subject to the following conditions:- [and I quote only the most relevant]:
(10 all spoil shall be returned to hollows in the ground and, except in the area hatched diagonally, the surface shall been levelled and sown with grass seed in agreement with the Local Planning Authority or in any event of disagreement as shall be determined by the Minister."
"He [referring to Sullivan J] then went on to make the point that, under the first limb of the permission, a large amount of the host rock, limestone, would have to be removed to win and work fluorspar. That is undoubtedly true, especially in respect of winning fluorspar. Thus the judge properly concluded that the first limb of the permission.
'permits the removal of as much or as little limestone as is reasonably necessary in order to win and work the fluorspar.'" (paragraph 38).
Mr Jones says that the Court of Appeal were endorsing the severing of limestone from the land that was permitted by the decision.
"26. Mr Jones also seeks to advance an argument not raised before the inspector or the judge, even though he describes it as providing 'a simple answer' to the interpretation question. Since it is agreed that the permission allows the severance of limestone from the land in order to gain access to the fluorspar, the issue is really what then happens to that severed limestone. As at 1952 and for some years later, it would have been treated as a chattel and would therefore not have needed planning permission for its export from the site. In this connection, our attention has been drawn to three Ministerial decisions on planning appeals in the period 1950 – 1952, which accepted the principle that the removal of chattels from land did not amount to development requiring planning permission, [and he refers to that] though Mr Jones accepts that whether heaps of minerals were chattels or alternatively had adhered to the land depended on the facts in each particular case. He acknowledges that no findings of fact on that issue have been made in the present case, but argues that the point would be relevant as a matter of principle to the interpretation of this permission. He does, however, accept that, even if severed limestone could be seen as a chattel, its removal from site could lawfully be prevented by a condition on the planning permission which allowed its severance in the first place."
The relevant part of the judgment begins at paragraph 31, where the Lord Justice says this:
"But the judge has concluded that the first limb of the permission, in allowing the winning and working of fluorspar, has impliedly allowed the winning and working of limestone, and its ultimate export from the site, insofar as the removal of that limestone from the ground is reasonably necessary for the winning and working of fluorspar. Is that the proper interpretation of this permission?
32. I do not believe that it is. I find the appellants' arguments compelling. The concept of 'winning' a mineral involves achieving access to the desired mineral, the 'target mineral' as Mr Morshead describes it, not obtaining access to overburden or to host rock which simply has to be removed as part of the process of winning the target mineral, which in the case of the first limb of this permission is fluorspar and barytes. In the present case, in making the fluorspar available, so that it can be worked, one has to get the host limestone out of the way, but one is not seeking to make the limestone available, any more than one is seeking to make overburden available. Likewise any minerals, whether limestone or any other rocks, which have to be removed in that process are not being 'worked' in the sense used in planning law. In my judgment Sullivan J misunderstood the English Clays case. The host rock, whatever it is, on this site may have to be removed in substantial quantities from its original location, but it is not being won or worked.
33. The express grant of permission in the second limb for the extraction of 'other minerals', including limestone, in certain limited circumstances, confirms this interpretation. As Mr Jones recognizes, the judge's approach renders the second limb of this permission otiose. All that could be done under it could already be done under the first limb if the judge is right. Nor is there any reason why the carefully-formulated second limb should be seen as having been included as a mere illustration of what could be done under the first limb. That seems to me to be most implausible. In principle, one should seek an interpretation which gives effect to both limbs of this permission, and that can only be achieved by construing this permission as meaning what it says: that is, allowing the winning and working of fluorspar and barytes (but not limestone) under the first limb and allowing the winning and working of limestone (and other minerals) but only in the circumstances described in the second limb."
At paragraph 36 the Lord Justice says this:
"Mr Jones' argument about 'severed limestone' constituting a chattel is of no real assistance in interpreting this planning permission, since he accepts that the fate of such severed limestone could be legitimately governed by a condition in the permission which allowed its severance in the first place. If, therefore, severed limestone falling outside the second limb of the permission amounts to waste, it could not be exported from the site (whether regarded as a chattel or not), since that would be contrary to condition 3. Moreover, that argument has no force today independently of the 1952 permission, since the law has been changed since the Ministerial decisions to which he refers. By section 55(4) of the 1990 Act, the removal of material from a 'mineral working deposit' constitutes development requiring planning permission."
"That where 'development' consisted in the carrying out of mining operations, the moving of every shovelful was a separate act of development and could be the subject of an enforcement notice if carried out without permission. Accordingly, though the operations prior to the four years ending on November 17, 1966, could not be the subject of an enforcement notice, each operation carried out every day since the four-year period began in November 1962 was in breach of planning control, as would also be any future operations in depth on the worked pink areas; and the notice served in respect of the four-year period from 1962 was therefore valid."
"For the purposes of this Act mining operation include, (a) removal of material of description over from a mineral working two from deposit of fuel lax and ash or pin or three from the deposit wry when steel or other metallic stabbing and (b) the extraction of mineral from diseyes railway embankment."
That then leads to a response and to a counter response by reference to the general development order which, as I understand from the closing submission this morning, no longer arises.
"151. The Appellants proposed an amendments to requirement (i) of the enforcement notice, so that it would read (with their additional wording in italics): Cease the winning and working of limestone save to the extent that this is ancillary to the safe extraction of fluorspar and lead. Nothing in this requirement shall prevent the processing of minerals on the Land.
They also proposed the deletion of requirement (ii).
152. The first part of this addition to requirement (i) merely reflects the lawful position and adds nothing to the notice. However, the second part goes beyond the breach of planning control, which is concerned with an unauthorised winning and working and exportation of limestone. It would seek to make the processing of any materials lawful. The requirements can only relate to remedying the breach, or remedying any injury to community. They cannot be used to grant planning permission for an activity which goes outside the scope of the notice.
The second requirement again does no more than control the exportation of limestone, which has been won and worked for its own sake. It does not prevent the lawful exportation of limestone, where it is intrinsically linked with fluorspar (or lead).
I therefore conclude that the requirements of the enforcement notice are reasonable, and the appeal on ground (f) must therefore fail."
Having regard to the context and the legal background which made it inevitable for ground (c) to fall away, it seems to me that the conclusion of the inspector in that regard is not open to serious criticism let alone arguably unlawful.
"No detailed evidence was put to me to show that there would be any difficulty in extracting fluorspar and lead in accordance with the Ministerial consent, which is, as a matter of fact, only what has been permitted at the appeal site since 1951 (and earlier), and is a process with which the Appellants must therefore be very familiar."
He says that the appellant's primary concern was of course to continue active working. However he cites extracts from proofs of a Mr James Cuthbert and Mr Alan Furness which refer to the economics, and there are four extracts which I read set out as well those to which he took me in the opening and closing submissions, relating for example to "should no limestone be permitted to be sold an example given shows not trading £23.50 for every ton of fluorspar sold. The business would not survive should be the appeal decision, trading would cease almost immediately."
"The time given for compliance is too short because as a result of the situation described in relation to ground (f) the effects of compliance for the timescale would be to cease all operations including the clearly authorised ones within one day of the notice coming into effect. Quite simply that cannot be required in the light of the operation authorised by the Ministry of... Moreover in the event that simply the exportation of limestone from the site had to be seized, that is not a realistic timescale in which to make alternative arrangements to stockpile the considerable amount which results as an ancillary part of the operation of the land, as it would be necessary to dramatically alter working practices in order to accommodate. That is the matter to which it was directed."