High Peak Spar Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor

In a challenge to an enforcement notice, the relevant question is the substance of the breach identified in the notice. Where the governing planning permission does not authorise the winning and working of a mineral, the resulting breach is unauthorised operational development. It is not converted into a breach of a planning condition merely because the activity is connected with an authorised operation. The principle that each shovelful in a mining operation may constitute a separate act of development was applied. The court also confirmed that an inspector’s decision should not be subjected to excessive textual or evidential scrutiny on judicial review, provided the reasoning is legally adequate and intelligible.

The claimants operated an opencast fluorspar mine under a 1951 planning permission. The Peak District National Park Authority issued an enforcement notice alleging unauthorised winning, working and exportation of limestone. Following a public inquiry, the Secretary of State upheld the notice.

The claimants challenged that decision under section 289 of the Town and Country Planning Act 1990. They argued that the activity was authorised or had become immune from enforcement through the statutory time limits, that the notice was excessive, and that the compliance period was inadequate. They also relied on the duty concerning the economic and social well-being of local communities in the national park. The central issues were whether the alleged breach was unauthorised operational development, whether enforcement was time-barred, and whether the inspector’s conclusions on the remaining grounds were unlawful.

1. The appeal was dismissed. The enforcement notice was directed to unauthorised winning, working and exportation of limestone, rather than merely to breach of the permission’s condition concerning disposal of spoil. The Court of Appeal’s decision in Bleaklow [2009] EWCA Civ 206, on materially similar facts, established that the 1951 permission did not authorise the winning and working of limestone. Consideration of the condition therefore did not arise.
2. The claimants’ attempt to recharacterise the matter as a breach of condition, attracting the longer limitation period, was rejected. The notice concerned the absence of planning permission for the activity itself. The court also rejected the proposed limitation of the principle in Thomas David (Porthcawl) Ltd and Another v Penybont Rural District Council and Others [1972] WLR 1526, that each shovelful moved in an unauthorised mining operation may constitute a separate act of development.
3. Ground (f) failed. In light of the withdrawal of the permission-based challenge, the requirements to cease the unauthorised winning, working and exportation of limestone could not be regarded as excessive. The inspector had adequately addressed the proposed qualification for processing and the lawful removal of limestone intrinsically linked with fluorspar or lead.
4. Ground (g) also failed. There was no adequate evidential basis for the alleged pre-inquiry ruling which was said to have prevented fuller evidence being provided. The court reviewing the inspector’s decision had to avoid excessive analysis of evidence and omissions in the expression of conclusions. The issue was whether the inspector had acted unlawfully, not what conclusion the court would itself have reached.
5. The inspector had sufficiently taken into account the statutory duty to foster the economic and social well-being of local communities within the national park. That consideration did not outweigh the seriousness of the unauthorised extraction and its conflict with settled national park planning policies. The claimants were ordered to pay the first defendant’s costs, to be assessed if not agreed.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s decision letter dated 31 October 2008, which upheld the enforcement notice following the inspector’s report.

• High Court (Administrative Court): appeal dismissed. The claimants were ordered to pay the first defendant’s costs, subject to detailed assessment if not agreed.