Bleaklow Industries Ltd, R (on the application of) v Peak District National Park Authority & Anor

Planning obligations must satisfy all cumulative policy tests, including necessity, relevance to planning, direct relationship to the proposed development, proportionality in scale and kind, and overall reasonableness. An obligation concerning land away from the application site may be material where there is a rational planning nexus, but the authority must understand precisely what benefit it secures and assess that benefit against the development’s harm. Where an obligation is the critical reason for granting otherwise unacceptable development, that assessment must be adequately informed. A failure to do so, or to consider a realistic statutory route which could defeat the obligation’s purpose, may render the decision unlawful.

The claimant sought judicial review of the defendant Authority’s decision to grant the second defendant permission for fluorspar extraction at Winster Moor and to enter into a related section 106 agreement. The permission was contrary to development-plan policies and was justified principally by the proposed prevention of mineral working at the eastern end of Longstone Edge, about 14 kilometres away.

The claimant challenged the decision on the grounds of Circular 1/97, sustainability, and the possible use of rights under the Mines (Working Facilities and Support) Act 1966. The central issues were whether the Authority had correctly applied the cumulative policy tests for planning obligations, whether it had sufficient information about the benefit secured at Longstone Edge, and whether it had considered the possibility of statutory working rights defeating that benefit.

1. Application granted. The Authority’s decisions to grant planning permission and enter into the section 106 agreement were unlawful. Declaratory and quashing relief was granted. The quashing order concerning the agreement took immediate effect; the quashing order concerning the planning permission was suspended for six months to permit the parties to regularise the position. Costs followed the event, subject to detailed assessment.
2. The Authority was entitled in principle to treat the Longstone Edge provisions as material. The agreement concerned a different site, but both sites were within the National Park and the Authority could assess the overall environmental gains and losses. A geographical connection was unnecessary where there was a rational planning nexus.
3. Circular 1/97 required all five paragraph 7 tests to be satisfied cumulatively. The Authority’s training material inaccurately suggested that satisfying one of several listed criteria, together with a scale-and-kind relationship, was sufficient. Because the agreement was the key factor supporting permission for a major development contrary to policy, the error was material.
4. The Authority had not provided members with sufficient information to assess what the Longstone Edge agreement would actually prevent. In particular, members were not adequately informed of the officers’ and second defendant’s view that the relevant land was unlikely to contain economically viable fluorspar reserves. Without that information, members could not properly assess necessity, direct relationship, or whether the benefit was fairly and reasonably related in scale and kind to the Winster development.
5. The Authority also failed to consider the realistic possibility that the claimant could seek working rights under sections 1, 3, 4 and 5 of the Mines (Working Facilities and Support) Act 1966. The agreement was intended to guarantee that quarrying at Longstone Edge could not occur. The statutory route could potentially defeat that purpose, and the Authority’s assumption that national need would make such an application unlikely was mistaken.
6. There was a real possibility that proper consideration of these matters would have altered the decision. The planning permission and agreement were inextricably linked, so it was inappropriate to quash only the agreement.