Bleaklow Industries Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Ors

A planning permission to win and work a vein mineral carries an implied permission to remove so much host rock as is reasonably necessary to obtain it. The permission should not be construed by an arbitrary fixed ratio if that would prevent or inhibit the permitted mineral working.

Whether host rock is removed as a means of obtaining the permitted mineral, or as an end in itself, is a question of fact and degree. Economics, practicality, safety and the relative quantities involved are relevant, but no single factor is necessarily decisive. An inspector must give parties a fair opportunity to address a materially different case and must apply the civil standard of proof.

The claimant and the interested party challenged an inspector’s decision on appeals under section 289 of the Town and Country Planning Act 1990. The inspector had dismissed appeals under grounds (b) and (c) in section 174(2), concerning an enforcement notice alleging unauthorised winning and working of limestone, but had allowed ground (f) and varied the notice.

The dispute concerned the proper construction of a 1952 planning permission for winning and working fluorspar and for working other minerals won in the course of that operation. The inspector adopted a 2:1 limestone-to-fluorspar ratio and later found that the operator lacked a reasonable prospect of implementing a related ROMP scheme. The central issues were whether that construction was lawful, whether the inspector acted fairly, and whether the correct standard of proof was applied.

1. The appeal was allowed. The inspector’s decision was quashed and the matter was remitted to the first respondent for fresh determination.
2. The permission had to be read as a whole and in its geological context. The second limb could enlarge or explain the first limb, but could not cut down permission under the first limb to win and work fluorspar. Because fluorspar was contained in limestone, the permission necessarily authorised removal of so much host rock as was reasonably necessary to obtain and work the fluorspar.
3. The inspector’s fixed 2:1 ratio was fundamentally flawed. The geological evidence showed that any fixed ratio would be arbitrary and that the proposed ratio could prevent the permitted fluorspar operation. The operator had to act reasonably, but was entitled initially to determine the operational details of working. Economics, practicality and safety were relevant. The relative quantities of limestone and fluorspar were relevant but, save perhaps in an extreme case, could not alone determine lawfulness.
4. The second respondent’s proposed distinction between limestone won while obtaining fluorspar and limestone won while working it was internally inconsistent and impractical. Once limestone had been removed in order to obtain fluorspar, the permission contained no basis requiring it to be treated as waste rather than sold.
5. The inspector’s alternative conclusion about implementation of the ROMP scheme was procedurally unfair. He reached an adverse case based on the possibility that a witness had given misleading evidence, although that case had not been put fairly and squarely to the parties. He also applied the wrong standard of proof. Appeals under grounds (b) and (c) required proof to the civil standard; inability to exclude a possibility was insufficient.
6. The Secretary of State was ordered to pay the claimant’s and interested party’s costs, subject to detailed assessment if not agreed.

This was a first-instance statutory appeal in the Administrative Court. The judgment does not state any earlier judicial appellate decision.