Celtic Energy Ltd v The Welsh Ministers

Ministerial technical guidance should be considered in planning decisions, but it does not automatically replace an adopted development-plan provision. Its intended effect on existing plans must be addressed, with regard to the local reasons for the plan. A planning inspector must generally give parties an opportunity to answer technical concerns. A procedural defect is not fatal where the concern was only a makeweight and the decision rested on independent findings. Environmental and amenity harm must be balanced against the proposal’s benefits, but the balance may be sufficiently stated when the report is read as a whole.

Celtic Energy applied for permission to extend an existing opencast coal mine across the areas of Neath Port Talbot and Bridgend. Both Mineral Planning Authorities refused permission. An Inspector recommended dismissal of the appeals, and the Welsh Ministers dismissed them on 19 November 2009.

The Administrative Court upheld that decision: [2010] EWHC 2095 (Admin). The appeal concerned the effect of the 500-metre buffer guidance in MTAN2, the assessment of landscape and restoration, procedural fairness in the treatment of dust evidence, and whether the benefits of the proposal had been adequately weighed.

Lord Justice Pill gave the substantive judgment, with Lord Justices Jackson and Gross agreeing. The appeal was dismissed.

1. MTAN2 and development plans. Development control is development-plan led under section 38(6) of the 1990 Act. The Inspector had stated too bluntly that the 500-metre guidance in MTAN2 outweighed the local 200-metre buffer. Nevertheless, decision-makers could not simply ignore the guidance. Its intended effect on existing development plans should be considered and made clear, with respect for the local context and the reasons for the existing policy. The approach in R (Dacorum Borough Council) v The First Secretary of State, [2009] EWCA Civ 1494, did not require the appeal to be allowed.
2. Landscape and restoration. The Inspector addressed the restoration strategy and was entitled to find that extraction and restoration would cause substantial harm to landscape character and visual amenity. The restorative elements had not been left out of account.
3. Dust and procedural fairness. An Inspector who develops technical concerns from his own analysis should ordinarily give the affected party an opportunity to respond. The failure to put the dust concerns to the appellants’ expert was unfortunate. It did not justify quashing the decision because dust was only a makeweight in Appeal B, no material dust harm was found in Appeal A, and the decisions rested principally on landscape, countryside and public-enjoyment harm.
4. Planning balance. The economic, employment and coal-supply benefits deserved clearer prominence, but the report, read as a whole, showed that they had been considered. The Inspector was entitled to give them limited weight because they were not particular to the location or proposal, and to conclude that they did not outweigh the identified harm. That planning judgment did not depend on choosing between the 200-metre and 500-metre buffers or on dust harm. The Welsh Ministers were entitled to uphold it.

• Court of Appeal (Civil Division). Appeal dismissed: [2011] EWCA Civ 1122.
• Administrative Court. His Honour Judge Vosper QC refused Celtic Energy’s application to quash the Welsh Ministers’ decision: [2010] EWHC 2095 (Admin).
• Welsh Ministers. Following a 12-day public inquiry and site visits, the Ministers dismissed the appeals against the councils’ refusals of planning permission on 19 November 2009.