Planning Inspectorate Newsletter - Issue 13
Backdale Quarry
Enforcement Inspectors deal with some complex minerals appeals and one such case was at Backdale Quarry in the Peak District National Park. In this case the Inspector upheld the notice and decision was challenged by the appellants in the High Court. The judgement went against the Inspector’s decision but the authority, supported by the Secretary of State appealed successfully to the Appeal Court and the Inspector’s decision was re-instated.
The planning history goes back to 1952 when permission was granted 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’. The enforcement notice alleged that there had been ‘the winning and working of limestone’ other than in accordance with the planning permission. The notice affected 12 hectares of land although the permission covers a much larger area.
There were widely conflicting views about what the permission allowed which were argued in lengthy submissions to the inquiry. The Inspector found that the terms ‘winning’ and ‘working’ were being used deliberately and with a distinct meaning. The permission did not allow the ‘winning’ of limestone but only that amount ‘won’ in the course of ‘working’ fluorspar’. Working of limestone was clearly intended as a secondary or subordinate operation. From all of the evidence, the Inspector concluded that if the ratio of limestone to fluorspar exceeded 2:1, then it would be excessive and would not accord with the 1952 permission. The actual ratio during the period of operations had varied but typical figures were at least 50:1 and this had resulted in a significant visual impact in this part of the National Park.
The appeals were dismissed and the notice was upheld. It was also accepted that the notice should be upheld if there had been material operations as alleged during the four years preceding the issue of the notice. During one substantial period the appellants’ case was that working limestone on the appeal site was directed at the future prospect of working fluorspar on the adjoining land. However, the appellants did not own the vein mineral rights on the adjoining land and the Inspector found that they did not have the prospect of mining on that land at the time the works took place. They had proceeded for the benefit of ‘working’ limestone only and the operations were unauthorised.
In the High Court, Sullivan J held that there had been a ‘breach of natural justice’ because the actual 2:1 ratio had not, specifically, been put to the appellants’ expert witnesses. He also found that the permission allowed the operator discretion in the ‘winning and working’ of fluorspar ‘within the bounds of reasonableness’. He accepted that, although the ‘winning and working’ limestone must not be an end in itself, but a means to the ‘winning and working’ of fluorspar, the geological characteristics were important and relevant. He considered that due to the depths and locations of the fluorspar and barytes, the proportions of any minerals ‘won’ or ‘worked’ would vary but, on another point, Sullivan J largely agreed that the appeals should fail. However he found that, in the light of the way the Park Authority put its case, and the Inspector’s written pre-inquiry notes, the issue had not been directly before the inquiry and he considered, therefore, that there had been procedural unfairness to the appellants. He also found that the Inspector had applied a ‘criminal’, rather than ‘civil’ standard of proof in evaluating the appellant’s evidence.
The Court of Appeal upheld the Inspector’s interpretation of the permission, with the extraction of limestone allowed only to the extent set out in the second limb of the permission. Based on the evidence at the Inquiry, the Appeal Court found that the 2:1 ratio was a reasonable measure of how much limestone might be ‘won’ and ‘worked’. The Court did not consider that there had been any procedural unfairness. It stated that the ratio was a conclusion reached after considering all the evidence and arguments and there was no necessity to put some form of draft conclusion to the parties. On the second point, the appellants had had sufficient notice that this was in issue and the correct standard of proof had been applied. The Court unanimously reinstated the Inspector’s decision.
The appellants then applied for leave to appeal to the House of Lords. But Permission was refused by Lords Walker, Neuberger and Collins, ‘because the petition does not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the cause has already been the subject of judicial decision and reviewed on appeal.
