Sweet & Anor, R (on the application of) v First Secretary of State & Anor

An application under Town and Country Planning Act 1990, section 288, is confined to correcting unlawful decision-making. It cannot provide compensation, vindicate a perceived injustice, or authorise development. The available substantive relief is ordinarily the quashing of the challenged order or action.

Peat extracted for sale falls within the statutory definition of a mineral. An inspector may conclude that an environmental statement is inadequate despite the submission of a revised statement, where material deficiencies remain. The Secretary of State may adopt that conclusion where it is rationally supported by the evidence.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s decision dated 12 February 2004 dismissing their section 78 appeal. The appeal concerned refusal of planning permission for peat extraction and the subsequent creation of waterfowl habitat at Westhay Moor, Somerset.

The Secretary of State had adopted the inspector’s recommendation. The inspector considered that the environmental statement was inadequate and that the proposal conflicted with the Development Plan and Emerging Minerals Local Plan. The central issues were whether the inspector had erred in treating peat extracted for sale as a mineral and whether his assessment of the revised environmental statement was irrational or otherwise unlawful.

1. Application dismissed. Section 288 proceedings are concerned with the legality of the decision-making process. They do not permit the court to correct an alleged substantive injustice, award compensation, or grant planning permission. The relief available under section 288 is limited to quashing the challenged order or action where the statutory conditions are met.
2. Under section 336(1) of the Town and Country Planning Act 1990, “mineral” includes substances ordinarily worked for removal by underground or surface working, subject to the exception for peat cut for purposes other than sale. Peat extracted for sale is therefore a mineral within the Act and forms part of the land for extraction purposes. The inspector was entitled to treat the proposed peat extraction as mineral extraction, including for the purposes of Schedule 2 to the 1999 Regulations.
3. The inspector had considered the fully revised environmental statement. Although some matters had been satisfactorily addressed, significant deficiencies remained concerning nationally and internationally important bird populations, site hydrology, water quality, and the stability of peat during extraction. His conclusion that the statement was inadequate under regulation 3 and Schedule 4 of the 1999 Regulations was rational and open to him on the evidence.
4. The Secretary of State was entitled to accept and adopt the inspector’s reasoning. The claimants identified no legal error, irrationality, or failure to comply with a relevant statutory requirement. The further planning-policy ground was also unchallenged. The claim was dismissed, with the claimants ordered to pay the first and second defendants’ costs, subject to detailed assessment if not agreed. Permission to appeal was refused for lack of a reasonable prospect of success.

The judgment records that the claims against English Nature and Somerset Wildlife Trust were struck out on 27 October 2004. Buxton LJ refused permission to appeal against that order on 13 January 2005. The present application under section 288 was then dismissed by the High Court.