Case No: C1/2008/0872
C1/2008/0881
Neutral Citation Number: [2008] EWCA Civ 947
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH, ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 28th July 2008

Before:

LORD JUSTICE KEENE
and
LORD JUSTICE LONGMORE
- - - - - - - - - - - - - - - - - - - - -

Between:

	(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) PEAK DISTRICT NATIONAL PARK AUTHORITY 
	Appellant	
	- and -		
	
BLEAKLOW INDUSTRIES LTD 	
Respondent	
	-and-		
	MMC MINERAL PROCESSING LTD	Interested Party	

- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr T Morshead (instructed by the Treasury Solicitor) appeared on behalf of the First Appellant
R McCracken QC & Mr C Ormondroyd (instructed by Peak District National Park Authority) appeared on behalf of the Second Appellant.

Mr T Jones (instructed by Bremners Solicitors) appeared on behalf of the Respondent.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Keene:

1.	These are two related applications for permission to appeal from a decision of Sullivan J made on 7 March 2008, when he allowed an appeal by Bleaklow Industries Limited under section 289 of the Town and Country Planning Act 1990 against a decision by a planning inspector on an enforcement notice appeal.

2.	There are two applications because both the Secretary of State for Communities and Local Government and the local planning authority for the relevant area, the Peak District National Park Authority, seek permission to appeal.

3.	I can put the basic facts very briefly.  The enforcement notice in question related to a site of some twelve hectares (about thirty acres, that is, in old terms) within the Peak District National Park.  It alleged a breach of planning control by the winning and working of limestone other than in accordance with a planning permission granted in April 1952.  That planning permission was, in its operative part, in these terms: 

“The Minister has decided to grant permission for 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 within the area shown outlined in black, excluding the area cross-hatched, on the attached plan and the tipping of waste materials on the areas shown hatched vertically on the plan [subject to certain conditions].”

4.	Limestone clearly came within the expression “other minerals” in that grant.  The main issue at the appeal against the enforcement notice was whether what had been done fell within the terms of that permission.  Sullivan J found a number of legal flaws in the inspector’s decision dismissing Bleaklow’s appeal under grounds (b) and (c) of section 174(2) of the 1990 Act.  The first concerned the interpretation of that planning permission adopted by the inspector.  In the course of his decision, the inspector had emphasised that the permission allowed the working and export of limestone in the course of working fluorspar and barytes, not in the course of winning the latter.  The distinction between winning and working is described by Sullivan J early in his judgment by reference to a number of authorities, including English Clays Lovering Pochin Ltd v Plymouth Corporation [1974] 27 P&CR 447.  Winning has been treated as the process of making the mineral accessible so that it may then be worked, that is to say removing it from in situ in the land.  The inspector took the view that: 

“If the amount of limestone won and worked exceeds that of fluorspar and barytes, this would indicate strongly that the operations are not consistent with the terms of the permission.”

He then went on to suggest a test more generous, as he saw it, to the operator than that, so that if the ratio of limestone to fluorspar and barytes exceeded 2:1 by tonnage, this would indicate something beyond the scope of the 1952 permission.

5.	Sullivan J said that he had no doubt that the “ratio-based approach” was procedurally unfair because it had not been advanced by any of the principal parties at the enquiry, but he said that it was unnecessary to explore that issue further because the approach would prevent the winning and working of fluorspar and so would in effect torpedo the planning permission itself.  One sees that in paragraph 28 of his judgment. 

6.	In so concluding, the judge emphasised that very much more limestone than a 2:1 ratio would need “to be removed to get at the fluorspar” (paragraph 34). Consequently, he held that the inspector’s approach to the interpretation of the permission was fundamentally flawed.  

7.	The Park Authority now seeks permission to challenge that part of the judge’s decision and, somewhat belatedly, so does the Secretary of State, who needs leave to amend her grounds of appeal.  One of the main points made in this respect is that the judge has himself misinterpreted the 1952 permission, which allows limestone and other minerals to be worked in the course of working fluorspar and barytes, but not in the course of winning those latter minerals. Thus it is argued that removing the overburden, which may very well contain a great deal of limestone, in order to get at the fluorspar -- that is to say, to win the fluorspar -- is something distinct from working the limestone and exporting it.  Sullivan J, it is said, has overlooked the careful wording of the permission.  In those circumstances it is said that a 2:1 ratio test would not be as impracticable as suggested by the judge, and any procedural defect would not be significant because the amount of limestone actually worked in the course of working the fluorspar would be quite limited.

8.	It seems to me that this is a properly arguable point with a real prospect of success.  There is a question as to whether the applicants have to go further than that, because on the face of the legislation the appeal to this court would be a second appeal and so would have to meet the requirements of CPR 52.13(2) and section 55(1) of the Access to Justice Act 1999.  However, for my part I do not believe that we need to decide that interesting issue in the present case, because I am satisfied that there are compelling reasons for the Court of Appeal to hear this appeal: first, because the correct interpretation of mineral permissions and of the terms “winning” and “working” is of general importance, indeed of widespread importance, to the mineral industry; and secondly because this particular permission is itself one which, on the evidence filed, can on the judge’s interpretation have a very significant impact on the amenities of the Peak District National Park.

9.	On that basis, and because it is a ground already in the Park Authority’s grounds of appeal, I for my part would grant leave to the Secretary of State to amend her grounds of appeal to take this interpretation point also.  We now have a form of the additional grounds of appeal covering this point which the Secretary of State wishes to advance.  I would grant leave for that amendment to be made and I would grant permission to appeal on this ground to both applicants.

10.	The other grounds concern the inspector’s approach to the limestone excavation which took place between March 2004 and the end of September 2004, which again the judge found to be flawed.  He did so on two bases: first, that it was procedurally unfair for the inspector to have concluded that MMC -- the interested party -- were not at that time working in accordance with the ROMP scheme without putting it to the applicant’s or MMC’s witnesses that there was no substantial basis for a belief that Glebe Mines would consent to the exploitation of Peak Pasture.  It seems to me arguable that that was at least implicit in the questioning which the inspector summarised at paragraph 5.26 of his decision and in the way that this topic was discussed at the inquiry.  Secondly, the judge held that the inspector had applied the criminal standard of proof, not the civil one, when determining this issue.  That turns really on one phrase used by the inspector who had elsewhere made it clear that the standard to be applied was the usual balance of probabilities standard.  Here too I can see that the issue is properly arguable.

11.	These other flaws identified by the judge would be much less significant were it not for his conclusion on the interpretation issue.  Given my view that permission to appeal should be granted on that latter aspect -- the interpretation issue -- I am satisfied that the permission to appeal should also cover these other matters to which I have just referred.  I therefore would allow all the grounds to be argued and would grant permission to appeal to both applicants.

Lord Justice Longmore:  

12.	I agree with every aspect of my Lord’s judgment.  

Order:  Applications allowed