High Court quashes Secretary of State’s refusal of permission for open cast coal mine

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In a judgment handed down on 23 November 2018, Ouseley J quashed the decision of the Secretary of State to refuse planning permission for an open cast coal mine in Northumberland, on the coast at Druridge Bay. The Secretary of State’s decision was contrary to his Inspector’s recommendation following a three-week inquiry concerning the proposal, which would involve mining up to three million tonnes of coal from 325 hectares of farmland near the village of Widdrington. The High Court application, brought by the mining firm H.J. Banks and Company Limited, challenged the decision on essentially two grounds:

  • A failure to correctly interpret and apply paragraph 149 of the NPPF 2012;
  • A failure to give adequate reasons in respect of giving significant weight to the greenhouse gas emissions that would result from the end use of coal.
Ouseley J allowed the application on both grounds, concluding that:
  • Although it was lawful for the Secretary of State to interpret paragraph 149 as permitting a “residual” approach, the decision itself had not correctly applied this approach (thereby ignoring material biodiversity benefits in the stage 2 balance).
  • While there was no error in respect of failing to give reasons for alleged departures from previous decisions, the Secretary of State had failed to properly explain his conclusion that refusing permission for the development could lead to a reduction in the amount of greenhouse gas emissions, rather than it leading to a substitution of an equivalent amount from an imported source.
The judgment also contains important guidance on the interpretation of regulation 122 of the Community Infrastructure Levy Regulations 2010 and the meaning of a “material consideration”: see paragraphs 50-66. A copy of the judgment is available here. David Elvin QC and Richard Moules appeared for the Secretary of State. Paul Brown QC and Matthew Fraser appeared for Friends of the Earth (Paul Brown QC and Toby Fisher also appeared at the call-in inquiry for Friends of the Earth which was a Rule 6 party).

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