Secretary of State for Communities & Local Government & Anor v Bleaklow Industries Ltd & Anor

Permission to appeal may be granted where an issue is properly arguable and has a real prospect of success. For a second appeal, compelling reasons may also justify granting permission. General importance to an industry and potentially significant effects on a protected area may constitute such reasons. The distinction between winning and working minerals was sufficiently arguable to warrant permission. Related complaints about procedural fairness and the standard of proof could also be argued where materially connected with that issue.

The Secretary of State and the Peak District National Park Authority sought permission to appeal from Sullivan J’s decision of 7 March 2008. He had allowed Bleaklow Industries Ltd’s appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of an enforcement-notice appeal. MMC Mineral Processing Ltd was an interested party.

The proposed appeal concerned the construction of a 1952 mineral planning permission, the inspector’s ratio-based approach to limestone extraction, alleged procedural unfairness, and the standard of proof applied to excavation undertaken between March and September 2004.

1. Applications allowed. Permission to appeal was granted to both applicants on all grounds. The Secretary of State was given leave to amend her grounds to include the interpretation issue.
2. The challenge to the construction of the 1952 planning permission was properly arguable and had a real prospect of success. It was arguable that removing limestone overburden to win fluorspar was distinct from working and exporting the limestone. The distinction between winning and working minerals therefore required consideration.
3. Although the proposed appeal appeared to be a second appeal engaging CPR 52.13(2) and section 55(1) of the Access to Justice Act 1999, the court did not decide that issue. There were compelling reasons to hear the appeal because the interpretation of mineral permissions was of widespread importance to the mineral industry and the particular permission could significantly affect the amenities of the Peak District National Park.
4. The further complaints about the inspector’s treatment of the March–September 2004 excavation were also properly arguable. They concerned procedural fairness and whether the inspector had applied the criminal standard of proof rather than the balance of probabilities.
5. Lord Justice Longmore agreed with every aspect of Lord Justice Keene’s judgment.

• Court of Appeal (Civil Division): Applications for permission to appeal from Sullivan J’s decision of 7 March 2008 were allowed. Permission was granted to both applicants on all grounds, and leave was granted to amend the Secretary of State’s grounds.