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

A planning permission must ordinarily be construed from its own words, conditions and stated reasons. Extrinsic material is inadmissible where the permission is unambiguous because the permission runs with the land.

In mineral planning law, to win a target mineral means to obtain practical access to it. To work it means to remove it from its position in the land. Removing host rock to reach a target mineral does not, without more, amount to winning or working that host rock.

A permission to win and work a target mineral does not authorise the commercial extraction of host rock merely because its removal is operationally connected with the permitted activity. Material removed solely to obtain access may instead be waste governed by the permission’s disposal conditions.

A 1952 planning permission authorised the winning and working of fluorspar and barytes in the Peak District National Park. It also authorised the working of other minerals, including limestone, when won in the course of working the specified minerals. The Peak District National Park Authority served an enforcement notice alleging unauthorised winning and working of limestone.

An inspector dismissed the landowner’s and operator’s appeals on grounds (b) and (c) of section 174(2) of the Town and Country Planning Act 1990, although he varied the notice on ground (f). Sullivan J allowed their statutory appeals and remitted the matter, holding that the permission impliedly authorised limestone removal, commercial working and export where reasonably necessary to win and work fluorspar.

The Secretary of State and the Park Authority appealed. The central questions concerned the proper meanings of “winning” and “working”, the lawful treatment of host limestone, the inspector’s use of a 2:1 mineral ratio, and alleged procedural and evidential errors concerning proposed workings at Peak Pasture.

1. Appeal allowed unanimously. The 1952 permission used “winning” and “working” deliberately as distinct concepts. Winning means obtaining practical access to the desired mineral. Working means removing that mineral from its position in the land. Sullivan J had misunderstood English Clays Lovering Pochin Ltd v Plymouth Corporation [1974] 27 P. & C.R. 447 by treating the removal of host limestone as the winning and working of limestone.

2. The permission contained two complementary limbs. The first authorised winning and working fluorspar and barytes, but not limestone. The second authorised working limestone and other minerals only when they were won in the course of working fluorspar or barytes. Construing the first limb as authorising commercial limestone extraction would make the carefully limited second limb redundant.

3. Limestone removed merely to gain access to fluorspar was neither won nor worked. It constituted waste and had to be disposed of under condition 3. Its commercial value did not alter that classification. Only limestone worked within the second limb could be exported and sold. The permission did not authorise large-scale commercial limestone removal merely because an operational nexus existed with fluorspar extraction.

4. The inspector was entitled to use a 2:1 ratio as a practical allowance for limestone worked while closely associated with fluorspar. It was not a stripping ratio limiting the host limestone which could be moved to obtain access. Ratios were debated at the inquiry, and procedural fairness did not require the inspector to circulate his proposed numerical conclusion for further comment.

5. The Peak Pasture issue had been adequately raised. A planning inquiry is not merely a dispute between two parties, and concessions by a planning authority do not prevent third-party objectors from maintaining an issue. Read as a whole, the inspector’s reasons applied the civil standard of proof. He was entitled to find that there was no reasonably reliable prospect of obtaining the necessary mineral owner’s consent and that the appeal-site operations were pursued independently of Peak Pasture.

6. The inspector had therefore lawfully concluded that the limestone operations exceeded the permission. His dismissal of the section 174(2) ground (b) and (c) appeals under the Town and Country Planning Act 1990 was restored. His variation of the notice on ground (f) was unaffected. No further declaration about the permission’s meaning was required.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 206, unanimously allowed the Secretary of State’s and Park Authority’s appeals and restored the inspector’s decision.
2. Administrative Court: Sullivan J allowed the statutory appeals on 7 March 2008 and remitted the matter to the Secretary of State for redetermination. No citation is stated.
3. Secretary of State’s inspector: Upheld the enforcement notice, subject to a variation on ground (f), and dismissed the ground (b) and (c) appeals.