B e f o r e :
MR JUSTICE RICHARDS
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RMC Eastern Aggregates (Eastern Counties) Ltd
| Claimant
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| | - and -
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| | (1) Secretary of State for Transport, Local Government and the Regions
(2) Norfolk County Council
| Defendants
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Jeremy Cahill (instructed by Eversheds for the claimant)
MrMichael Bedford (instructed by The Treasury Solicitor for the Secretary of State)
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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MR JUSTICE RICHARDS:
- The claimant owns and operates a gravel extraction facility in the Wensum Valley at Swanton Morley in Norfolk. It has operated the site for many years for the extraction and processing of sand and gravel. An existing planning permission allows extraction to continue on the site until April 2002, but a s.106 agreement prevents extraction beyond that date. The claimant wishes to relocate its activities thereafter to a nearby site outside the Wensum Valley. In March it submitted an application for planning permission in respect of the new site. Various revisions were made to the planning application over time. On 15 September 2000 the second defendant refused the application. An appeal was lodged with the Secretary of State, who appointed an inspector to hear the appeal. The inspector held an inquiry in March 2001. By a decision letter dated 30 May 2001 he dismissed the appeal. The claimant now challenges that decision pursuant to s.288 of the Town and Country Planning Act 1990.
The decision letter
- In the decision the inspector identified four main issues: (1) the need for the proposed extraction having regard to the county’s landbank of reserves; (2) the effect of the proposed development on the landscape of the area; (3) its effect on the living conditions of local residents, particularly in terms of noise and lorry traffic; and (4) its effect on the enjoyment of visitors to the area.
- In relation to planning policy he referred to the statutory development plan, including most importantly the Norfolk Minerals Local Plan 1996 (“MLP”); and to national guidelines, the most important being Minerals Planning Guidance (“MPG”) 1 (general considerations and the development plan system), MPG 6 (guidelines for aggregates provision in England) and MPG 11 (the control of noise at surface mineral workings).
- On the first main issue the inspector concluded that there was no need for the proposed extraction having regard to the county’s landbank of reserves. He further concluded that the appeal proposal would be contrary to MLP policy MIN 15. On the second issue he concluded that the proposed development would be harmful to the landscape. On the third issue he came to the conclusion that the development would not cause unacceptable harm to the living conditions of local residents, particularly in terms of noise and lorry traffic. In this respect it would comply with relevant policies. On the fourth issue he concluded that the proposed workings would be harmful to the enjoyment of visitors to the area and in this respect would conflict with the requirement in policy MIN 6 that there should be no unacceptable harm to the amenities enjoyed by “other land users”.
- In his overall conclusions he stated that the fact that the proposed development would not cause unacceptable harm to the living conditions of local residents did not outweigh the harm arising in respect of the other three issues. There would be minor conflict with some other policies but it was necessary to consider compliance with the development plan as a whole and to carry out a balancing exercise. There would be compliance with many of the other policies in the development plan, or at worst they bore neutrally on the proposals. Nevertheless in his judgment none of them, individually or collectively, offset the significant breaches he had identified. He had come to the view that there were no material considerations that indicated a decision other than in accordance with the development plan.
First main issue: interpretation of policies MIN 14 and MIN 15
- The grounds of challenge relate first to the inspector’s approach to relevant policies in the context of the issue of need. It is submitted that he misinterpreted the policies and erred in other respects. The key policies are MIN 14 and MIN 15, together with their supporting text:
“MIN14 THE COUNTY COUNCIL WILL MAINTAIN A LANDBANK OF PERMITTED RESERVES OF SAND AND GRAVEL SEPARATE FROM THAT FOR CARSTONE, BOTH OF WHICH WILL BE IN ACCORDANCE WITH MINERALS PLANNING GUIDANCE NOTE 6
4.3.1. The national guidance (MPG 6) on landbanks for such aggregates aims to provide for the release of land sufficient for at least seven years extraction unless exceptional circumstances prevail. The Norfolk Minerals Local Plan will reflect Government advice.
4.3.2. It is, nonetheless, the County Council’s intention to ensure that a secure and steady supply of material to the construction industry is maintained within the constraints of environmental policies and the principles of sustainable development. The County landbank is a strategic reserve level for the whole of the industry and is not a policy for maintaining a seven year supply for any one site or any single operator. Currently there is a landbank of 9.8 years for sand and gravel and 31.7 years for carstone. There is therefore no overriding need to permit new workings at the present time. It is necessary, however, to investigate new areas of a less sensitive nature to ensure a steady and secure supply. It should be emphasised that the landbank can only be maintained if industry continues to submit acceptable planning applications.
4.3.3 The area over which the landbank is calculated will be the whole County. The landbank will be derived from the regional guidelines contained in the new MPG 6 and the agreed apportionment of this regional figure to the County level, as set out in chapter three (Table 1).
4.3.4 It is not practicable to produce individual land-banks for different types of aggregate end use such as concreting sands, building sands, concreting gravels or hoggin. It is recognised , however, that there needs to be a reasonable balance between different types within the landbank and that reserves should not be dominated by one sort of material.
MIN 15 PROPOSALS FOR EXTRACTION OF SAND AND GRAVEL AND CARSTONE ON NEW SITES WILL NOT NORMALLY BE PERMITTED WHEN THE LANDBANK EXCEEDS THE SEVEN YEAR LEVEL.
4.3.5 The County Council recognises the need to maintain a seven year landbank and security of supply for sand and gravel and carstone, but wishes to prevent the spread and proliferation of new mineral workings when there is no justifiable need. This applies particularly where the sites are neither extensions nor replacements of existing active operations and are not of the same scale and type of operation. This policy reflects MPG 6 which seeks to change the pattern of supply. Over-provision will depress the price of aggregates and this will discourage recycling and the development of alternative sources of supply. Moreover, in the local context, over-provision may slow the rate of extraction leading to temporary closure of some sites and or protracted period of operations. This may have unacceptable environmental impact by slowing down the rate of progressive restoration and the return to beneficial after-uses of existing sites.”
- The inspector dealt with those policies at some length in the decision letter. His principal reasoning, so far as relevant to the first main issue, was as follows:
“10. It was submitted for the appellant that MIN 14 should be taken as meaning that the landbank is to be at least 7 years, and I agree that, taken in isolation, it could be interpreted thus in the light of its reference to the MPG. However, policy MIN 15 goes on to state that proposals for extraction of sand and gravel will not normally be permitted ‘when the landbank exceeds the 7 year level’, and its supporting text (4.3.5) refers to ‘the need to maintain a seven year landbank’. It seems to me that these two policies must be taken together because neither would have any practical effect without the other. Since policy MIN15 is unequivocal as to the landbank threshold, their combined function is to maintain only a 7 year landbank.
11. It was further claimed for the appellant that the effect of such an interpretation is that permission can only be granted when the landbank has fallen below 7 years, a position that MPG 6 seeks to avoid. It seems to me that any issues regarding the degree to which there might be tension between policies MIN14 and MIN15 and the extent to which the Plan complies with the advice in the MPG ought properly to be addressed through the Local Plan process rather than in the context of individual development proposals. Nevertheless, I note that the MPG does not say ‘more than 7 years’ and in my opinion the provision made by these policies strictly falls within, albeit at the lower end of, the range implied by ‘at least 7 years’. I have seen nothing to support the suggestion that the MPG1 and 6 aim of ensuring continuity of production would necessarily be compromised by such an interpretation.
12. It is agreed that, calculated in accordance with MPG 6, that is using regional apportionment figures the landbank at 31 March 2001 was 7.1 years. As this is the method referred to in policy MIN14, it follows from MIN15 that new sites will not normally be permitted at present.
13. As was pointed out for the appellant, the remaining capacity at other sites in the County declines as sand and gravel is extracted, and some are nearing the end of their productive lives. For example, the nearby RMC site as Swanton Morley is due to close in 2002. It was suggested that consequently the landbank will soon slip below 7–year threshold unless further sites such as this are added. Indeed, capacity of some 3 million tonnes needs to be added each year to maintain the landbank. This site would add 0.5 year. The Council indicated that at the time of the Inquiry were applications for 4 other schemes under consideration, and that if all permitted these would add 0.6 years.
14. Clearly the actual landbank is in a constant state of flux with existing reserves being extracted while sites are added from time to time through the granting of new permissions. The sites referred to by the Council may or may not be approved, but no doubt others will come along. It seems to me that this will always be the case, and that one has to take a snapshot in considering each proposal. In this instance the snapshot is as indicated above.
….
17. The Council conceded that inclusion of the word ‘normally’ in policy MIN15 means that a landbank of 7 years or more does not automatically lead to refusal. There is no indication in the Plan as to the circumstances in which exceptions will be made. The Council suggested that exceptions would generally be confined to cases such as borrow pits required for specific construction schemes or to extensions to existing pits. Certainly I have found nothing in the Plan to support the suggestion that exceptions should be made so as to avoid any possibility of the landbank slipping below the 7-year level, notwithstanding the Council’s acceptance that the objectives of policy MIN15 would not be offended. To my mind the policy quite clearly relates to the actual landbank at the time of consideration of each proposal. In any event, in my opinion there is little if anything exceptional about the appeal proposal ”
- Mr Cahill, for the claimant, refers to the statutory context within which the relevant policies were formulated. In brief, in preparing the development plan it was necessary to take into account the guidance contained in the MPGs. MPG 1 places emphasis on the importance to mineral planning of ensuring a ready supply of minerals and of maintaining in that connection a stock of planning permissions which provide for continuity of production (the landbank). Specific government policy on aggregates provision is contained in MPG 6. As regards the appropriate landbank period, paragraph 63 states:
“…. In the case of sand and gravel MPAs should aim to maintain a landbank for an appropriate local area, sufficient for at least 7 years extraction, unless exceptional circumstances prevail.”
Mr Cahill emphasises the words “at least 7 years”, submitting that 7 years is therefore regarded by MPG 6 as a minimum figure and not just a target figure.
- It is uncontroversial that MIN 14 must be interpreted against the background of that guidance. Indeed the policy itself refers in terms to the maintenance of a landbank in accordance with MPG 6, and the supporting text likewise refers to the guidance and states further that the Plan will reflect government advice.
- The inspector’s approach to the relevant policies must also be considered against the agreed factual background, correctly recorded in the decision letter, to the effect that at the date of the inquiry the existing landbank was only 7.1 years; some 3 million tonnes needed to be added to it each year in order to maintain its level; and the grant of planning permission for the proposed development (a total of 1.73 million tonnes) would add only 0.5 years to the landbank, thus increasing it from 7.1 to 7.6 years.
- In the light of those considerations Mr Cahill advances a number of overlapping submissions about the inspector’s interpretation of MIN 15. He submits that the inspector misinterpreted the policy when stating that the effect of the policy, taken together with MIN 14, is “to maintain only a 7 year landbank”. There is an unequivocal commitment in MIN 14 to maintain at least a 7 year landbank. Where, as here, the landbank is just above 7 years but would fall below 7 years unless a consent were granted, the policy should be interpreted as favouring the grant of consent. That result is achieved by recourse to the words “not normally” in MIN15. Where the landbank would fall below 7 years unless a consent is granted, the normal presumption against the grant of consent should not apply. On the inspector’s approach there is a tension between MIN14 and MIN15. The very existence of such a tension tells against his interpretation. No such tension was identified by the inspector at the inquiry into the Plan held as recently as 1995. On the claimant’s approach there is no tension.
- This links with a later submission that the reference to “normally” introduces a degree of flexibility into the policy and that the aim in MIN14 cannot be achieved unless “normally” is interpreted so as to allow for consents to be granted when, as here, the landbank is in danger of falling below 7 years. That is also consistent with the reference in paragaph 4.3.5 of the supporting text to the existence of a “justifiable need” for new mineral workings. It is submitted that there is a justifiable need where the present position is so close to falling below 7 years.
- The inspector’s error is compounded, it is submitted, when the inspector notes at paragraph 11 of the decision letter that the MPG does not say “more than 7 years”. That is to ignore the true effect of the guidance, which is that there should be a landbank of more than 7 years. (Mr Cahill accepts that the wording of the guidance, “at least 7 years”, strictly means 7 years or more, but he submits that it not a practical reality to maintain precisely 7 years and that in order to give realistic effect to the guidance there should be more than 7 years). Thus the inspector has erred in his interpretation of a fundamental feature of national policy. On the inspector’s approach there can be no confidence of an application meeting MIN15 unless the landbank has already fallen below 7 years, which is exactly the position that the guidance says should be avoided. For the same reason the inspector misdirected himself in suggesting that the aim of ensuring continuity of production would not be compromised by his interpretation.
- Further, if, as the inspector held, the provision allowed for by the policies falls at the lower end of the range implied by “at least 7 years”, then it is submitted that he should have found the proposal to comply with the policies. It would comply with MIN 14 by securing the landbank of at least 7 years and it would not offend MIN 15 by only slightly increasing the landbank figure.
- For the Secretary of State, Mr Bedford starts by reference to the correct approach of the court towards an issue of this kind. It is for the court to determine as a matter of law what the words of a policy statement are capable of meaning. If in all the circumstances the policy is properly capable of more than one meaning, and the decision-maker adopts and applies a meaning which it is capable of bearing as a matter of law, then he will not have gone wrong in law. Further, policy guidance should not be interpreted as if contained the words of a statute. See generally per Brooke LJ in R v. Derbyshire County Council, ex parte Woods [1997] JPL 958 at 967-968.
- Mr Bedford submits that the inspector’s interpretation of MIN 15 together with MIN 14 was a permissible one. A landbank of 7 years is consistent with “the release of land sufficient for at least 7 years extraction” (paragraph 4.3.1 of the text supporting MIN 14). The expression “at least 7 years” does not mean “more than 7 years”. Policy MIN 15 provides that proposals on new sites “will not normally be permitted when the landbank exceeds the 7-year level”. In taking the view that “normally” allowed exceptions to be made, without indicating what circumstances would be exceptional, the inspector gave the words an interpretation they were capable of bearing. A distinction is to be drawn between interpretation and matters of planning judgment which are for the inspector. In the circumstances, including the fact that at the time of his decision the landbank exceeded the 7-year level and that there was “little if anything exceptional about the appeal proposal”, he was entitled to find that the proposal was contrary to MIN 15. There was no misdirection.
- Mr Bedford further submits that there was no finding that the landbank would fall below 7 years if consent was not given. Nor was that a necessary consequence of the inspector’s approach. He expressed the view that “the sites referred to by the Council may or may not be approved but no doubt others will come along. It seems to me that this will always be the case….”. He did not find there to be a tension between MIN14 and MIN15, but merely noted that any issues regarding the degree to which there “might be tension” between the policies ought properly to be addressed through the Local Plan process. He did not say, and it does not follow from his interpretation, that MIN15 can only be satisfied when an application is made at a time when the landbank is below 7 years. He recognised that permission could be granted when the landbank was over 7 years if the application was exceptional, but he did not consider the appeal proposal to be exceptional. His observation that he had seen nothing to support the suggestion that the aim of ensuring continuity of production would necessarily be compromised was for the same reason open to him. In essence, his interpretation was that the policy required only a 7-year landbank, that the decision-maker should look at the “snapshot” in relation to the landbank when considering each proposal, and that there was nothing in the evidence before him to suggest that the aim of continuity of production would necessarily be compromised by such an approach. He was entitled to take that view. In any event the advice in the MPGs is not that the landbank must at all times be that or above 7 years; it is that it is “desirable” to ensure continuity of production (paragraph 41 of MPG1) and that authorities should “aim to maintain” a landbank for at least 7 years extraction unless exceptional circumstances prevail (paragraph 63 of MPG 6).
- I turn to my conclusions. I confess that I was at one point troubled by the consequences of the inspector's interpretation of the policies. It undoubtedly creates the possibility of the landbank falling below 7 years, contrary to the aim in MPG 6 as reflected in policy MIN 14. To that extent there is an apparent tension between MIN 14 and MIN 15. In itself, however, that is not fatal to his interpretation; and in the event, for reasons given below, I am satisfied that the inspector faced up to the problems and that his interpretation was properly open to him.
- Another concern I had was that the effect of the inspector's interpretation is that the policies tell against the grant of permission for any proposal considered at a time when the landbank is 7 years or over, unless the proposal warrants an exception from the norm, but tell in favour of the grant of permission for any proposal considered when the landbank has fallen below the 7 year level. Thus a great deal turns on an accident of timing (or perhaps on an element of gamesmanship between potential applicants as regards their timing). On the other hand, a like consideration applies if the claimant's challenge is correct. If the policies are interpreted as telling in favour of an application where it is possible that the landbank will otherwise fall below 7 years, then they will tell in favour of the first proposal to be considered when the landbank drops close to the 7 year level; but, if permission is granted for that proposal and that results in a substantial increase in the landbank, they will tell against subsequent applications until the landbank again drops close to the 7 year level. So the timing of applications or of their consideration will still be of major importance. In the end I have come to the conclusion that these practical considerations are far from decisive either way.
- I have reminded myself that the court's role is to determine the range of permissible interpretations of the policies and that the real question is whether the inspector's interpretation falls within the range of meanings that the policies are capable of bearing as a matter of law. I am persuaded that it does.
- First, the inspector was in my judgment entitled to read the two policies together and to hold that their combined function is to maintain only a 7 year landbank. The wording of MIN 15 is, as he stated, "unequivocal" in establishing a norm that permission will be refused if the landbank exceeds 7 years. There is no logical inconsistency between that and MIN 14 or the MPG 6 aim of maintaining a landbank of "at least 7 years". A landbank of 7 years or just over is a landbank of at least 7 years. The inspector described it as being "at the lower end" of the range implied by "at least 7 years". One can go further and describe it as being "at the bottom" of that range, but the essential point remains the same: it is within the range. In my view that point is correct and the approach adopted is consistent both with the wording and with the spirit of MIN 14 and the guidance.
- It is true that reserves are continually being extracted and the landbank figure is never static. By laying down a norm that permission will be refused when the landbank exceeds 7 years, MIN 15 creates a risk that as reserves are used up the figure will fall below 7 years. The existence of that risk is inherent in the policy. Thus the apparent tension with MIN 14 and the guidance, to which I have already referred. I do not think, however, that the mere existence of such a risk casts doubt on the interpretation of the policy or that the policy has to be operated in such a way as to obviate the risk.
- Different considerations apply where refusal of permission would inevitably result in reserves falling below the 7 year level. That would give rise to a true conflict with the aim of maintaining at least a 7 year landbank. It seems to me that the claimant is right that that problem can be resolved by reference to the words "not normally" in MIN 15. They enable permission to be granted, by way of an exception to the norm, where refusal of permission would result in the landbank falling below 7 years and would thereby conflict with the aim of maintaining a 7 year landbank.
- I therefore consider that paragraph 17 of the decision letter, where the inspector deals specifically with the question of "not normally", adopts an unduly restrictive interpretation of the words. It does not acknowledge their potential importance as a means of avoiding a conflict with the aim of maintaining a 7 year landbank. On the other, for reasons already indicated, there is in my view an important difference between a situation where the landbank would fall below the 7 year level if permission were refused and a situation where it might fall below that level. The mere possibility or risk of it falling below the 7 year level cannot be sufficient to justify an exception from the norm established by the policy. Accordingly the inspector was in my view correct to reject the suggestion that exceptions must be made so as to avoid "any possibility" of the landbank falling below 7 years.
- Although I take the view that the inspector adopted an unduly restrictive interpretation of the words "not normally", the point does not assist the claimant in the circumstances of the present case. That is because the inspector did not find, and it was not a consequence of his findings, that without the grant of permission for the claimant's proposed development the landbank would in fact fall below the 7 year level. On the contrary, it is plain that he considered it to be no more than a possibility, and one that might well not eventuate. As he observed at the end of paragraph 13 of the decision letter, at the time of the inquiry there were applications for 4 other schemes under consideration and if all were permitted they would add 0.6 years to the landbank (more than the claimant's application would add). He went on to say in paragraph 14 that they might or might not be approved, but others would come along. Nor would his reasoning in relation to the claimant's application necessarily lead to the rejection of those other applications so long as the landbank remained above 7 years. It is possible that one or more of those applications would have individual characteristics warranting their being treated as exceptions to the norm without regard to the 7 year point. Accordingly it did not follow that the landbank would fall below the 7 year level if permission were refused for the claimant's application. In those circumstances the 7-year point gave rise to no requirement to treat the application as an exception to the norm laid down by MIN 15; and the inspector was entitled to hold that there was little if anything exceptional about it in any other respect.
- For those reasons I do not consider that the inspector's interpretation of the policies gave rise, in the circumstances of this case, to a conflict with the aim of maintaining a 7 year landbank or that he should have granted permission as an exception to the norm in order to avoid such a conflict. The same considerations apply to the contention, in so far as separately advanced, that his interpretation led to a conflict with the aim of ensuring continuity of production.
- More generally, in my judgment the inspector was entitled to interpret the policies as requiring a snapshot to be taken in considering each proposal, and to consider the particular proposal in the light of the snapshot that showed the landbank to be above the 7 year level. He examined the issue with care and adopted an interpretation of the policies that was properly open to him.
Second main issue: application of MIN 15 to replacement sites
- Mr Cahill raises a separate point on the interpretation of MIN 15. He submits that it does not apply to replacement sites and that the appeal site is a replacement site, so that the inspector misinterpreted the policy in holding that it applied to the proposal. For the purposes of that submission Mr Cahill concentrates on the reference in MIN 15 to "new sites" and on the wording of the supporting text in paragraph 4.3.5, which refers in the first sentence to a wish to prevent the spread and proliferation of “new” mineral workings when there is no justifiable need, and states in the second sentence that this applies particularly where the sites are “neither extensions nor replacements of existing active operations”. The proposed site, it is submitted, is a replacement of an existing active operation and does not come within the intended scope of the policy. That is how the policy was understood by the inspector at the MLP inquiry in 1995 and by the inspector deciding an appeal in respect of a site at Mundham in October 2000.
- Mr Bedford, on the other hand, stresses the word “particularly” in paragraph 4.3.5 of the supporting text to MIN15. The use of that word, he submits, confirms that the policy is not intended to apply only to sites which are “neither extensions nor replacements” and that the policy is also capable of applying to replacement sites. In any event, he submits, this was an interpretation of the policy properly open to the inspector. He further submits that neither “new site” nor “replacement site” is a term of art and that neither is defined in the policy or its supporting text. The inspector was entitled to accept that “replacement sites can also be new sites” (end of paragraph 18 of the decision letter). He pointed out at the beginning of paragraph 19 that the proposed workings would be “new”, which brought it within the terms of MIN15 even if it was also a replacement site. He was not bound by interpretations adopted previously by other inspectors.
- I reject the submission that the inspector erred in holding that MIN 15 applied to the proposed site. I have not thought it necessary to set out at length the passages where he deals with this issue, but in my view the general approach adopted was correct. In paragraph 18 the inspector considered MIN 15, with its reference to "new sites", and the passage of the supporting text which states that the concern about proliferation "applies particularly where the sites are neither extensions nor replacements of existing active operations and are not of the same scale and type of operation". He then referred to the interpretation placed upon it by the inspector in the Mundham appeal. He rejected that interpretation, expressing agreement with the council's view that the phrase "this applies particularly" rather than "this applies only" clearly indicated that the policy did not refer only to new sites. For my part, I would prefer to say that it indicates that the reference to "new sites" includes sites that are extensions to or replacements of existing sites. But the substance of the point is the same: the very fact that the concern about proliferation applies "particularly" to sites that are not extensions or replacements is a strong indicator that the policy as a whole applies to extensions and replacements as well.
- In paragraph 19 the inspector pointed to the undisputed fact that the proposed workings would be new. He also observed that the site would not constitute an extension to an existing one. He went on to deal with the question of replacement site, accepting in paragraph 20 that it would in a sense replace the claimant's existing site. He examined a number of relevant factors, concluding in paragraph 22 that "none of these factors places this proposal outside the scope of policy MIN 15" though some might reduce the degree of conflict with the policy.
- Thus the inspector carried out a careful examination of why the site should be regarded as falling within the scope of MIN 15. Whether one treats the policy as applying both to new sites and to extensions and replacements, or as embracing extensions and replacements within "new sites", the result is the same. I am inclined to say that as a matter of law either interpretation is properly open. In any event, however, I am satisfied that the inspector was entitled to hold that policy MIN 15 was applicable to the appeal site.
Third main issue: no harm to objectives of policy
- Mr Cahill submits that if MIN 15 did apply, then it was illogical of the inspector to conclude that the proposal would be contrary to the policy, since it could not harm the objectives of the policy. Paragraph 17 of the decision letter records the council's acceptance that the objectives of policy MIN 15 would not be offended. The inspector found in paragraph 20 that the proposal would not lead to the spread or proliferation of new mineral workings, the avoidance of which is a stated aim of the policy. In paragraph 22 he referred to another stated aim of the policy, namely to avoid over-provision that will depress the price of aggregates, discouraging recycling and the development of alternative sources of supply. There was, however, no evidence that the proposed development would have that consequence (and the council's concession was to a contrary effect). In the circumstances the only rational conclusion was that the aims of MIN15 would not be offended. That being so, the inspector could not properly conclude that the development would be contrary to MIN15.
- Mr Bedford submits that reading the decision letter as a whole, it is clear that the inspector did not share the council's view that the proposal would not offend the objectives of policy MIN15. The supporting text to the policy provides in terms that one of the aims is to avoid over-provision that “will” depress the price of aggregates, discouraging recycling and the developing of alternative supply. Once over-provision is found, the consequence of it is established by the policy itself. It is inherent in the inspector’s approach, in particular his conclusion that the benefits of the proposal would not “outweigh” that stated aim, that in his judgment the proposal would involve over-provision and that the stated aim would thereby be offended. That was a matter of planning judgment for him.
- I have already dealt with the inspector's findings that the proposal fell within the scope of MIN 15 and was in conflict with the terms of the policy (in that the landbank exceeded 7 years and the proposal did not justify an exception). Having reached those conclusions, as he was entitled to do, he plainly had a rational basis for holding that the proposal would be contrary to the policy.
- So far as concerns the particular point in paragraph 22 of the decision letter that the benefits did not outweigh the stated aim of avoiding over-provision, it seems to me that he was thereby clearly accepting that the proposal would run counter to the stated aim. He was entitled to take that view, having regard to the supporting text to which Mr Bedford has referred. The inspector was not bound by any concession made by the council that the objectives of the policy would not be offended by the proposal. It was for him to make his own judgment.
- For those reasons I reject the contention that the inspector erred in concluding that the proposal would be contrary to MIN 15.
Fourth main issue: factual error
- I turn to consider a separate set of submissions advanced, on the topic of noise and amenity. The relevant policy is MIN 6 which provides that "applications for mineral extraction and associated developments will only be permitted where there would be no unacceptable harm to the amenities enjoyed by nearby residents and other land users".
- As already mentioned, the inspector found that the development would not cause unacceptable harm to the living conditions of local residents. He did, however, find that it would be harmful to the enjoyment of visitors to the area. In relation to that issue, Mr Cahill has referred to a passage in the relevant guidance, paragraph 43 of MPG 11. I do not propose to set out the passage in question since I do not understand the claimant’s case on this issue to relate to any failure to have regard to the guidance. If it does, then I reject the case because I am satisfied that the inspector did have regard to the guidance.
- The real issue here is a contention by the claimant that in assessing the impact of noise on visitors, in particular in their use of footpaths and bridleways, the inspector made fundamental factual errors which invalidate his conclusion. At paragraph 53 of the decision the inspector stated that he included within “visitors” people who “use public rights of way such as the bridleway running from Billingford Lane southwards to Gibbethill Plantation, and visit the Plantation and Bawdeswell Heath (both open to the public)”. A little later he stated:
“56. As far as I could judge without walking along it (for the reason indicated above), the hedges along the bridleway would substantially, if not completely, block views of the site and the access road from here, but I consider it likely that lorries on the access road would be clearly audible. Once in Gibbethill Plantation one would not see the workings except from close to the woodland edge, but from here there would be unobstructed views into the area of the workings, including the plant site. The lack of mounds here would also mean that the effects of noise from the site would be particularly marked in the wooded area here. I understand the concerns expressed about the safety of children, but the provision of fencing adequate to prevent them wandering from the woodland into the site could be secured through a planning condition. There would be no visual intrusion on Bawdeswell Heath or Bylaugh Wood, but again I consider it likely that noise from the workings would have an adverse effect on users.”
- The reason why the inspector was unable to walk over the area was the existence of restrictions because of foot and mouth disease. The claimant says that, perhaps because he had not been able to visit the area properly, he misunderstood the position concerning Gibbethill Plantation. The plantation is a spur of woodland adjoining the appeal site and located south west of Bawdeswell Heath. The inspector refers to “the bridleway running from Billingford Lane southwards to Gibbethill Plantation”, but the bridleway does not in fact run to the plantation. It runs into Bawdeswell Heath and across it, coming no closer than some 300 metres from the plantation. Further, the inspector was mistaken in believing that the plantation is open to the public and, therefore, in attaching weight to concerns about the effects of noise from the site on those in the plantation. The claimant says that no evidence was presented at the inquiry to suggest that members of the public had access to this area, nor was it an issue raised by the council or by the inspector. Subsequent investigations have confirmed that the plantation is private property to which the public do not have access and which is used as a clay pigeon shoot.
- The written material before the inspector makes no reference to Gibbethill Plantation as a matter of concern. It refers only to the effects on those using Bawsdeswell Heath. What the inspector says about this, however, in a statement made for the purposes of these proceedings is this:
“(1) No evidence was presented to the Inquiry by the Claimant as to the use of Gibbethill Plantation. It was not suggested to me that it was private property to which the public did not have access. No mention was made of any use as a clay pigeon shoot.
(2) As the list of appearances attached to my decision letter makes clear, several local residents gave oral evidence to the Inquiry as Interested Persons. Several of these referred in their oral evidence to public use of Gibbethill Plantation. None suggested that this is unauthorised. I distinctly recall a Mr Richard Parfitt describing Bawdeswell Heath and Gibbethill Plantation as ‘a recreation area for locals’. I recall similar remarks being made by others, though since the point did not appear to be contentious I had no specific recollection of the individuals concerned.
(3) There was no cross-examination of Mr Parfitt or the other local residents on the issue of access to or use of Gibbethill Plantation. Nor was any rebuttal evidence put forward by the claimant.”
- In response to that the claimant has filed a witness statement of Mr Frost, the claimant’s Planning Manager, who was present during the whole of the Inquiry. He states that he has no recollection of any reference by Mr Parfitt or others to public access specifically within Gibbethill Plantation. He produces his notes of the Inquiry and relies on them in support of his recollection. His notes record Mr Parfitt as referring to impact in relation to Bawdeswell Heath only. Other witnesses are likewise recorded as referring to Bawdeswell Heath. None is recorded as having referred to the impact within Gibbethill Plantation. Mr Cahill observes further that if there had been a reference to the public going into the plantation, the matter would have been pursued by the claimant. He submits that looking at the evidence as a whole the court should conclude that the inspector’s memory on this issue is at fault.
- If the inspector did fall into factual error, then it is submitted that the error is substantial and undermines his conclusion on the impact on visitors. He has included in his assessment of whether there would be “unacceptable harm” the impact upon a location to which the public does not have access and which is considerably closer to the noise from the workings than the areas to which the public does have access.
- Alternatively, if the matter was raised in evidence and through inadvertence it was not noticed by the claimant, then it is submitted that in the circumstances (given that it had not been raised as an issue by the parties) the inspector ought to have raised it to enable representations to be made on it. Mr Cahill submits that the claimant did not have a “fair crack of the whip” (see Fairmount Investment Limited v. Secretary of State for the Environment [1976] 1 WLR 1255 at 1265-6, and the summary of relevant law as given by Ouseley J in Castleford Homes Ltd v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77 at paragraph 52). Even if no one was to blame, justice will not be done unless the claimant is afforded an opportunity to present its evidence on this issue, since it is clear from the material before the court that the claimant can prove that the public does not have and could not have access to Gibbethill Plantation (see H F Sabey & Co Limited v. Secretary of State for the Environment [1978] 1 All ER 586 at 590h).
- Mr Bedford relies on the inspector’s own account of the evidence given at the inquiry. He submits that the fact that Mr Frost has “no recollection” of any reference to public access within Gibbethill Plantation and that his notes do not refer to it is not a sufficient basis for rejecting the inspector’s evidence. He points to a passage in Mr Frost’s witness statement where Mr Frost says that if third parties made specific reference to public access, he suspects that the term “Gibbethill Plantation” may have been used in the broader sense when referring to Bawsdeswell Heath and that the inspector misinterpreted the comment as referring to specific public access to Gibbethill Plantation. Mr Bedford observes that if there were references to Gibbethill Plantation, the inspector was entitled to take them as references to the true Gibbethill Plantation. Mr Bedford also refers to the notes of the council's closing submissions at the inquiry (an exhibit to Mr Frost’s witness statement) on which someone has annotated “Bawsdeswell Heath and G. Hill Plantation – recreational use”. It appears, says Mr Bedford, that somebody must have been making these points to the inspector. Further, if the inspector was entitled to find that the public had access to Gibbethill Plantation, it was unnecessary for him to deal in any greater detail with the bridleway, and the description he gave of it was adequate for the purpose. The claimant had agreed that it was unnecessary for the inspector to walk along the bridleway.
- Mr Bedford further submits that the impact of noise on the public in Gibbethill Plantation was not a new issue which the inspector had to raise with the claimant. It was no more than a specific manifestation of an issue already before the inquiry. One of the reasons for refusal of permission by the second defendant was the detriment to the amenities of local residents and visitors, and the claimant understood that the effect on visitors was a live issue. It was the claimant’s responsibility to respond as it saw fit to the evidence of use of Gibbethill Plantation as raised by interested persons. The point here was entirely different in kind from that under consideration in the Castleford decision. This was the sort of point that was within the province of local residents and others who attended the appeal. It was something to which the claimant needed to be alert. The inspector was entitled to take it into account in his overall assessment without giving specific notice of that to the claimant. The claimant was not denied a fair crack of the whip. Reliance is placed on what Ouseley J said in paragraph 53 of the Castleford decision:
“It is always difficult for parties to an Inquiry to know how far it is necessary to go in order to deal with the contingent ramifications of the process yet to be undertaken by an Inspector of analysing the arguments, accepting some in whole or in part and rejecting others. It is obviously helpful if an Inspector does flag up issues which the parties do not appear to have fully appreciated or explored. The point at which a failure to do so, amounts to a breach of the rules of natural justice and becomes unfair, is a question of degree, there being no general requirement for an Inspector to reveal any provisional thinking. It involves a judgment being made as to what is fair or unfair in a particular case.”
In this case, submits Mr Bedford, there was no unfairness.
- I can express my conclusions on this issue relatively briefly. First, it is axiomatic that the lawfulness of the inspector's decision must be assessed by reference to the evidence that was before him, not by reference to later evidence. Whether the inspector was entitled to make the findings he did about the effect on the public using Gibbethill Plantation must therefore depend upon whether he received evidence of public use of the plantation.
- The inspector states categorically that he did receive such evidence, from several local residents. The claimant does not go so far as to assert that he did not receive it. The point is put in terms of Mr Frost having no recollection of it and his notes making no reference to it; it is said that the point would have been pursued by the claimant if it had been raised in evidence; and the suggestion is made that the inspector's memory is at fault. I acknowledge the force of some of those points and I appreciate the difficulty of proving a negative. In my judgment, however, the claimant is unable to rebut the clear statement of the inspector that such evidence was given. Moreover it seems very unlikely that the inspector would have plucked the point out of thin air; and if evidence was given about use of "Gibbethill Plantation", then whatever the precise intention of the witness in using that expression, the inspector was in my view entitled to treat it as referring to the area described as Gibbethill Plantation in the material before him.
- Even if, instead of accepting the inspector's evidence, I were to proceed on the basis that it was impossible in the circumstances to establish whether or not evidence was given on this subject by local residents, the result would be the same. The claimant would still have failed to establish the essential factual basis of this part of its challenge.
- It may well be that the inspector's understanding of this issue would have been different had he been able to look closely at Gibbethill Plantation for himself. The restrictions that existed were, however, the unfortunate consequence of foot and mouth disease and no objection was raised to the limited scope of his inspection.
- Turning to the natural justice argument, there was in my judgment no unfairness in the inspector taking into account the evidence of public use of Gibbethill Plantation without raising it specifically with the parties for comment. I accept Mr Bedford's submissions that the effect on local residents and visitors was known to be a live issue at the inquiry and that evidence as to public use of the plantation fell within the scope of that issue. It was incumbent on the claimant to be on the alert for evidence of this kind and to be prepared to deal with. The inspector was entitled to take it into account as part of his overall deliberations without notifying the claimant that he was minded to do so. This is not a case where the claimant was denied a fair crack of the whip.
- I have borne carefully in mind the argument that to uphold the inspector's decision in relation to this issue would cause injustice to the claimant, having regard to the evidence now available that there is no public access to Gibbethill Plantation. If, as I have held, the decision was a lawful one, such an argument cannot ultimately prevail. But in considering whether there is in fact an injustice, it is necessary to take account of two matters. First, on the basis on which I have upheld the decision, i.e. that evidence of public use of Gibbethill Plantation was in fact given, the claimant had an opportunity to deal with the point at the time, albeit that it failed to do so through inadvertence or oversight.
- Secondly, the inspector's conclusion about the effect on visitors to the Plantation must be put in perspective. It was plainly a substantial point, but it was by no means the only point concerning the effect on visitors to the area. In paragraph 55 he referred to the adverse effect on the view when walking along Slad Lane (to the south of the site). In paragraph 56 he referred to the effect of noise on users of the bridleway, Bawdeswell Heath and Bylaugh Wood, as well as the particularly marked effects of noise in Gibbethill Plantation itself. Moreover the effect on visitors to the area was only one of three factors relied on in reaching his overall conclusion that the appeal should be dismissed. Even if the inspector had found that the public did not have access to the plantation and had therefore excluded this element of harm from the balancing exercise, there is in my view no real possibility that it would have made a difference to his overall conclusion. I think it unrealistic to suggest that this one element was capable of tipping the balance against the grant of permission.
- Accordingly, even though the evidence now available indicates that the inspector's finding in relation to public use of Gibbethill Plantation was mistaken, that does not vitiate his decision, nor has any real injustice been caused to the claimant.
Fifth main issue: reasons
- The claimant raises one other point of substance, namely a reasons challenge concerning the way in which the inspector dealt with the question of landscape impact. (It is unnecessary for me to deal with a number of subsidiary or sweeper points which in my judgment do not add to the overall force of the claimant’s case.)
- The effect of the proposal on the landscape was the second main issue addressed by the inspector. He found that the proposed landform would blend in with the area after the development had been completed (paragraph 31). The landscape issue therefore turned on the impact during extraction. In paragraph 32 he referred to the temporary screening that would be provided mainly by mounds or bunds created from material excavated on site. At paragraph 33 he stated that "undoubtedly these mounds would themselves be visible from many places" and that "it would, to my mind, be quite apparent that this was a mineral extraction site and that the screening mounds were artificial features in this gently rolling landscape". In paragraph 34 he referred to the adverse effects arising from sight of the access road. In paragraphs 35-37 he concluded:
“35. … I note that the test in NSP policy ENV.4 is significant harm to the distinctive character of the Norfolk countryside and that MLP policy MIN 3 refers to unacceptable harm to the visual appearance of the countryside …
36. …. Nevertheless, the explanation to policy MIN 3 expressly refers to screening by earth bunding sometimes itself being an alien and intrusive feature, as I have found it to be here.
37. It does seem to me that the extension of the workings beyond the area of investigation identified in the MLP, with the commensurately larger working area and greater length of bunding required outside it, does lead to a conclusion that these policies would be breached. NSP policy ENV.1 is more broadly expressed, but for the reasons I have indicated I consider that the proposed development would not protect, conserve or enhance an area of local landscape character.”
- "The area of investigation" is explained in policy MIN 17, which provides that investigation areas as shown on the proposals map may have potential for mineral extraction and indicate broadly where further testing of mineral resources should be concentrated. It also states, however, that there is no assumption that permission will be granted for these areas. The same point is made in the supporting text. In this case the area covered by the appeal site extended beyond the area of investigation shown on the proposals map.
- Mr Cahill submits that, although areas of investigation are given the status referred to in MIN 17, the Plan countenances the possibility of mineral extraction over a wider area. The inspector gives no reason why the extension of the working area beyond the area of investigation is unacceptable in itself. As to bunding, the inspector did not rely on the larger area of the site bringing the bunding closer to Slad Lane. Since a smaller site area would involve a similar system of moving temporary bunds, no intelligible reason is given for the adverse conclusion. The problem faced by the claimant is that it does not know what amendment to the scheme is needed in order to meet the inspector's objection.
- Mr Bedford submits, and I accept, that that complaint is misconceived. It is plain that the inspector regarded the bunding as an alien and intrusive feature in what he described as "this gently rolling landscape" and that the extent of the bunding was such as to justify the conclusion that there would be "unacceptable" harm within MIN 3 and "significant" harm within ENV 4. This was a rational and adequately reasoned conclusion.
- Mr Cahill further submits that the inspector has failed to explain why policy ENV 1 applies to the appeal site (a point which was in issue at the inquiry) and why there is a breach of it.
- Policy ENV 1 states inter alia that "there will be special emphasis given to the protection, conservation and enhancement of areas of local landscape character". I think it plain that the inspector regarded the area here as an area of local landscape character, for reasons already given in his decision letter. That was a matter of planning judgment for him. It was a judgment reasonably open to him and it was not incumbent on him to say more about it than he did. He was also entitled to find that the proposed development would not "protect, conserve or enhance" the area within the terms of the policy. Again his reasons are clear from what he had already said. I reject this ground of challenge too.
Conclusion
- For the reasons given above, the challenge to the inspector's decision fails and the claim is dismissed.
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MR BEDFORD: My Lord, I am hear because unfortunately it was not possible to reach agreement between the parties, notwithstanding the terms of the letter that your Lordship has seen. My Lord, there are two matters. One is the question of costs, but secondly there is an application which my learned friend Mr Choongh, who appears on behalf of the claimant, wishes to make. In those circumstances----PRIVATE
MR JUSTICE RICHARDS: Let us hear more.
MR BEDFORD: My Lord, dealing with it in stages. On the first issue, obviously, the application should be dismissed, as your Lordship ordered. On the second issue, costs, there was a schedule of costs supplied by the first defendant which was in a figure of £5,440.75, excluding the need to attend today.
MR JUSTICE RICHARDS: What was the figure?
MR BEDFORD: £5,440.75, excluding need to attend today. Unfortunately due to the need to attend today it has gone up by some £300 for the attendance today which takes it to the figure of £5,740.75. It is a case suitable for a summary assessment and I understand there is no issue about the figure. So I ask for summary assessment in the sum of £5,740.75.
My Lord, I have nothing else to say. That is my position.
MR JUSTICE RICHARDS: How did it arise that the Treasury Solicitor wrote to the court saying that an agreement had been reached?
MR BEDFORD: The Treasury Solicitor understood that an agreement had been reached but there was, it appears, a proviso that in relation to Eversheds needing to obtain their client's instruction which were not at that stage forthcoming and what one might call a certain amount of horse trading as to figures if it was possible to avoid an attendance today, but on the basis that agreement was not in fact formally reached yesterday the attendance today has been necessary. So I ask for the sum in relation to the figure set out in the schedule of costs, plus the additional for today.
MR JUSTICE RICHARDS: It is correct to say that the proviso is not set out in the letter.
MR CHOONGH: My Lord, first of all can I apologise for the confusion caused on our side. We are unable to inform the Treasury Solicitor as to whether or not there would be an application for leave to appeal because we were not in fact able to obtain instructions from the client until this morning.
My Lord, I do seek leave to appeal and I can put my reason very, very briefly and it relates to MIN 15. My Lord, you will see from the judgment and indeed you set out in the judgment that there has been confusion over MIN 15 as to whether it applies to replacement sites or not. We are now in a position where we have two inspectors including the minerals local inspector who thinks it does apply to replacement sites and we have an inspector and your Lordship who feels that it does not. My Lord, in my submission there is a great deal of uncertainty for those in the mineral extraction industry and as I am sure your Lordship will agree the whole point of the plan that exists is to provide a certainty and that is particularly important in this case because this uncertainty about MIN 15 and whether or not it relates to replacement sites is compounded by the fact that policy is so (inaudible) in the way it operates, leaving it very unclear to mineral operators as to exactly when the seven year provision is or is not met and exactly how applications ought to be and what the ramifications of that are going to be. So the ground on which I seek leave to appeal is to get further clarification from the Court of Appeal on the true interpretation of MIN 15.
MR JUSTICE RICHARDS: Yes. So far as the costs are concerned you do not oppose the application and summary assessment in the sum of £5,740.75.
MR CHOONGH: I do not, my Lord.
MR JUSTICE RICHARDS: Very well. In that case there will be an order for costs in that sum of £5,740.75. Permission to appeal is refused. I take the view that there is no real prospect of success on appeal and that the case is of very limited wider significance. The claimants will have to seek permission from the Court of Appeal if they wish to pursue it further. Thank you both for coming.
