James Maurici appeared for the Secretary of State for Communities and Local Government. ” In R. (on the application of Bleaklow Industries Ltd) v Secretary of State for Communities and Local Government  EWHC 606 (Admin) Sullivan J. allowed an appeal under s. 289 of the Town and Country Planning Act 1990 to a planning inspector’s decision to uphold an enforcement notice affecting a quarry at Longstone Edge, near Bakewell, in the Peak District National Park. The breach of planning control alleged in the enforcement notice was “the winning and working of limestone other than in accordance with Planning Permission 1898/9/69”.
The quarry was subject to a 1952 permission which permitted “the winning and working of fluorspar and barytes and for the working of lead and any other minerals which are won in the course of working these minerals, by turning over old spoil dumps, by open-cast working and by underground mining”.
The judge in allowing the appeal made clear he did not agree with either the inspector’s or the National Park Authority’s interpretation of the planning permission. The Inspector interpreted the permission as limiting the ratio of limestone to fluorspar ore extracted.
Sullivan J. held:
“31. Since fluorspar is a vein mineral and the host rock within which the vein (rakes) and stratabound deposits (flats) are contained is limestone, which itself is overlain by shales, it is clear that a planning permission for winning and working fluorspar also grants permission, by necessary implication, to remove – ie, to win and work, applying the definitions in English Clays (above) – so much of the host rock as is necessary to win and work the fluorspar. While limestone may not be won and worked as an end in itself, it may be removed (won and worked, see English Clays) to the extent that it is reasonably necessary to do so in order to win and work the fluorspar.
35. While I agree with the Inspector’s view that the winning and working of fluorspar must be the “primary” activity under the first limb of the permission, and the winning and working of limestone will “necessarily be the subordinate or secondary operation” in the sense that the winning and working of limestone must not be an end in itself but simply the means to an end, namely the winning and working of fluorspar, it does not follow that “this will be reflected in the proportions of the minerals worked”. Given the agreed geological characteristics, the proportions of the minerals worked will be variable throughout the life of the permission depending on such factors as the depth, width, direction and content of the fluorspar vein or flat within the host rock.
37. There was an understandable desire on the part of the second respondent to interpret the permission so as to impose some limit on the amount of limestone that could be won and worked in order to protect the natural beauty of the National Park
38. The underlying purpose of the permission is not to protect the National Park or to limit the amount of limestone that can be won and worked. It is to enable fluorspar to be won and worked. Thus the first limb of the permission permits the removal of as much or as little limestone as is reasonably necessary in order to win and work the fluorspar. If the geological conditions are such that a substantial amount of limestone has to be removed in order the win and work a much smaller amount of fluorspar, it would not be consistent with the underlying purpose of the permission to place some arbitrary limit on the amount, or ratio, of limestone extraction if to do so would prevent or inhibit the winning and working of fluorspar. 39. This approach to the interpretation of the condition does not mean that the appellant and the interested party have, in effect, a permission to win and work limestone. Whether the limestone has been won and worked as an end in itself or as a means to an end to enable the winning and working of fluorspar pursuant to the permission will, in the absence of any relevant limitation or condition, necessarily be a question of fact and degree.
41. At the risk of repetition, the permission is concerned to facilitate the extraction of fluorspar, not to limit the amount of limestone removed in order to achieve that end. The person implementing the permission does not have an entirely free hand. He must act reasonably. But, within the bounds of reasonableness, it is for the operator to decide how to win and work the fluorspar under the permission.
45. When deciding whether as a matter of fact and degree the operator is working limestone as an end in itself or as a means to an end (in order to win and work fluorspar) all of the relevant circumstances would need to be considered. They would certainly include the factors mentioned by the appellant: economics, practicality and safety. They would also include the absolute and relative quantities of limestone and fluorspar worked. But save perhaps in an extreme case, such as that postulated by Mr Tippett (1 million tons of limestone worked and sold to 1 ton of fluorspar), this factor alone could not be determinative given the geological characteristics of fluorspar (see above)”.
The permission covers a large area within the Peak District National Park totalling some 155 hectares (the site in issue in the High Court proceedings being only 12 hectares). What is more it is understood that there are other permissions within the Park granted at the same time which have similar wording.
The case has been described as “a test case of planning authorities’ ability to “police” out-dated mineral permissions” (http://www.planningportal.gov.uk/news/?1115315576690).
James Maurici appeared for the Secretary of State for Communities and Local Government.