PEAK DISTRICT NATIONAL PARK AUTHORITY Claimant. and. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT Defendant. and BLEAKLOW INDUSTRIES LTD

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1 IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION ADMINISTRATIVE COURT IN THE MATTER OF THE TOWN AND COUNTRY PLANNING ( TCP ) ACT 1990 SCHEDULE 9, THE PLANNING AND COMPENSATION ACT 1991, THE ENVIRONMENT ACT 1995, THE TOWN AND COUNTRY PLANNING (ENVIRONMENTAL IMPACT ASSESSMENT) (ENGLAND AND WALES) REGULATIONS 1999, THE TOWN AND COUNTRY PLANNING (ENVIRONMENTAL IMPACT ASSESSMENT) (MINERAL PERMISSIONS AND AMENDMENT) REGULATIONS 2008 AND GOVERNMENT EXPLANATORY MEMORANDUM AND GUIDANCE OF JULY 2008 RELATING THERETO Between PEAK DISTRICT NATIONAL PARK AUTHORITY Claimant and SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT Defendant and BLEAKLOW INDUSTRIES LTD BLOCKSTONE LTD BRITISH FLUORSPAR LIMITED SAVE LONGSTONE EDGE GROUP STANTON IN PEAK PARISH COUNCIL THE THORNHILL SETTLEMENT Interested Parties Draft STATEMENT OF FACTS AND GROUNDS 1. The Problem in a Nutshell: There is an apparent conflict between Government advice about the treatment of stalled reviews of old mineral applications ( ROMPS ) and the actual effect in law of the relevant legislation. PDNPA has to make a decision

2 about 2 sites. Whatever decision it makes is likely to be subject to judicial review. PDNPA respects and seeks to comply with Government guidance but does not wish to flout the law. It therefore seeks the court s ruling on the effect of the relevant legislation. 2. The Claimant (hereinafter PDNPA ) is the mineral planning authority for the Peak District National Park, an area in the county of Derbyshire and neighbouring administrative areas whose landscape is an asset of national importance. 3. The Defendant (hereinafter SSCLG ) has responsibility on behalf of the UK for the promulgation of the legislative transposition of the EIA Directives of the EU (formerly 85/337/EEC, as amended, now 2011/92/EU) in relation to the environmental effects of mineral extraction. 4. Parliament recognised in 1981 that environmental issues relating to old mineral sites were of concern and introduced legislation under the Town and Country Planning (Minerals) Act 1981 that placed a duty on mineral planning authorities (MPAs) to periodically review mineral sites in their areas. However, the Government recognised that the proposal for review and updating did not work as well as intended. In 1991 reform steps were introduced through the Planning and Compensation Act 1991 (PCA 1991) which dealt with the registration and review of old mining permissions granted between 1943 and 1948 under the Interim Development Order (IDO). The Environment Act 1995 (EA 1995) introduced new requirements for an initial review and updating of old mineral permissions issued between 1948 and 1982 and the periodic review of all permissions thereafter. The problem with the old mining and mineral permissions was that they were granted many years ago and contained few if any conditions controlling the effects of the development on the environment and amenity of the area in which they were present. Some permitted sites were no longer being worked, but operations could lawfully be resumed. 5. The EA required mineral operators to propose new sets of conditions for the listed mineral sites. Mineral planning authorities initially had 3 months in which to determine a suitable set of conditions. If they did not, then the set of conditions proposed by the operator were deemed to be approved and became by default the new conditions. Unfortunately the combined effect of the EA 1995 and the relevant EIA regulations of 1988, and later , did not take account of the requirements of the EIA Directive. The effect of the Directive was that it was unlawful for MPAs to impose a new set of conditions on existing mineral permissions without in some circumstances an EIA. 1 The reviews of old mineral permissions (ROMPs) by the Claimant which have led to the matters arising under this Claim, have been carried out in accordance with the requirements of the Environment Act However the procedures set out in the EIA Regulations, as amended, apply equally to reviews that are carried out in accordance with the PCA The TCP (EIA) (E &W) Regulations 2011 do not apply to the present case by reason of 2011 Reg 65 (2) which preserves the previous regulations for present purposes.

3 6. This requirement for EIA was not reflected in the Act or the Regulations as the Government had not considered that the attachment of a new set of conditions to existing mineral permissions constituted the issuing of a new development consent. Consequently the Act and Regulations did not provide a means whereby operators could be required to provide an ES which is a necessary step (the cornerstone 3 ) of EIA. The position was that, domestic law provided that after 3 months the operators conditions were deemed to be imposed; that was unlawful under European law, however, and such conditions had to be quashed. 7. The House of Lords held that a new set of conditions issued under the PCA 1991 constituted a development consent requiring EIA in North Yorkshire 4 and the High Court held that a new set of conditions issued under the EA1995 also constituted a development consent requiring an EIA in the Peak District National Park Authority 5. The Court of Appeal held in ex p Huddleston 6 that a deemed consent without EIA was a breach of European law, and should be quashed. The House of Lords refused leave to appeal against that decision. The European Court of Justice effectively confirmed that position in Wells In 2000 the Government promulgated amendments to the TCP (EIA) (E&W) Regulations 1999 (the 1999 Regulations) to deal with the previously inadequate transposition of the Directive. These provided for the suspension of mineral permissions in respect of which the new EIA requirements had not been met by the operator. They did not originally provide a mechanism which ensured that eventually there would be a resolution if the operator did not cooperate. 9. Some old mineral permission applications for new conditions were stalled for long periods since the Town and Country Planning (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2000) (the Regulations 2000) did not apply to applications for mineral review submissions that had already been submitted prior to 15 November Such applications were described as stalled. The practical problems associated therewith are described in the evidence of Jane Newman. After considerable delay the 2008 Regulations were promulgated to deal with that situation. These Regulations provide for the making of a Prohibition Order when the mineral permission has been suspended for more than two years. 3 Per Lord Bingham of Cornhill Berkeley v SSE [2001] 2 AC 603 at R v North Yorkshire CC ex p Brown [1999] UKHL 7, [2000] 1 AC R v Peak District National Park Authority ex parte Bleaklow Industries Ltd [1999] EWHC Admin R v Durham CC ex p Huddleston [2000] 1 WLR C-201/01 Wells v SSTLGR [2004] 1 CMLR 31

4 10. The matter is complicated by the existence of 4 sets of regulations 8 relating to this area, containing convoluted drafting of amendments of amendments. Further amendments, made in 2006, deal with other un-related matters The view of the SSCLG is that the effect of the 2008 Regulations is that where an application has been suspended for 2 years without compliance by the operator with EIA requirements the MPA is under a duty to make a prohibition order under TCPA 1990 Sch 9(3) providing, subject to confirmation by the SS, for the permanent cessation of mineral operations. When promulgating the July 2008 Regulations, the Department prepared an Explanatory Memorandum, laid before Parliament, which expressed this view. It is expressed many times in the July 2008 Guidance 10 : Eg para th bullet point Compare para last 7 lines and Para th bullet point Para th bullet point Para th bullet point Para rd bullet point Para th bullet point Para. 3.44: Regulation 26A (18) of the 1999 Regulations provides that, where that deadline is not met, suspension of the mineral permission(s) is automatically triggered. Under the 2008 Regulations, if automatic suspension continues for two years, the MPA is under a duty to make a prohibition order ceasing the whole or parts of a mineral permission(s) relating to development by the operator failing to provide the necessary information. (pleaders emphasis) Para rd bullet point Para last 4 lines 8 8 TCP (EIA) (E &W) Regulations 1999 (SI 1999 No. 293), TCP (EIA) (E&W) (Amendment) Regulations 2000 (SI 2000 No. 2867) (applying the 1999 Regulations to ROMP applications and introducing Reg 26A to the 1999 Regulations), TCP (EIA) (Mineral Permissions and Amendment) (E) Regulations 2008 (SI 2008 No. 1556) (applying the amended 1999 Regulations to ROMP applications submitted before 2000 and introducing Reg 4) and TCP (EIA) (Amendment) (E) Regulations (SI 2008 No. 2093) (introducing Reg 26B to the 1999 Regulations and revoking Reg 4 of SI 2008 No. 1556) 9 TCP (EIA) (Amendment) Regulations 2006 (SI 2006 No. 3295) 10 Environmental Impact Assessment and Reviews of Mineral Planning Permissions Guidance on regulations applying environmental impact assessment to stalled and other reviews of conditions attached to mineral planning permissions in England 2008 DCLG

5 Para. 3.62: The 2008 Regulations therefore impose a duty on MPAs to make a prohibition order ceasing the whole or parts of a mineral permission(s) after two years automatic suspension. Any such orders would be made under paragraphs 3 and 4 of Schedule 9 to the 1990 Act, which are further modified as described in paragraphs 3.65 and 3.66 below. (pleaders emphasis) Para lines 1 and Somewhat oddly (in view of the suggested duty on MPAs to make prohibition orders after two years suspension) the Guidance says at 3.67 that the SS will, in proceedings for confirmation of the order, take account of reasonable excuses for the continuing delay in complying with EIA requirements. This is curious if, as the Guidance suggests, the MPAs have a duty to make a prohibition order after 2 years of suspension as this would preclude them from taking such factors into account, although it does allow the SS to consider all matters before making a decision. However, it could lead to MPAs having to incur expenditure of time and money on confirmation proceedings which they consider should succeed. 13. The time-limited information procedure, provided in the July 2008 Regulations, modifies the 1999 Regulations when applied to undetermined ROMP applications. These detail the information MPAs (or the Secretary of State) must include when notifying parties of the required information. One requirement is to notify the relevant person in writing of the authority s duty to make a Prohibition Order after two years suspension under the Regulations. This appears in, e.g. Regulation 5(3) and 5(7)(f) Regulation 6(3) and 6(7)(f) Regulation 10(3) and 10(10)(d) Regulation 11(8)(d) 14. The characteristically convoluted drafting of the 2008 Regulations is confusing and accordingly leads to confusion. This is not least because they operate by amending TCPA 1990 Sch 9. TCPA 1990 Sch 9 para. 3 provides: (1) Where it appears to the mineral planning authority (a) that development of land (i) consisting of the winning and working of minerals; or

6 (ii) involving the depositing of mineral waste, has occurred; but (b) the winning and working or depositing has permanently ceased, the mineral planning authority may by order (i) prohibit the resumption of the winning and working or the depositing; and (ii) impose, in relation to the site, any such requirement as is specified in subparagraph (3). (2) The mineral planning authority may assume that the winning and working or the depositing has permanently ceased only when (a) no winning and working or depositing has occurred, to any substantial extent, at the site for a period of at least two years; and (b) it appears to the mineral planning authority, on the evidence available to them at the time when they make the order, that resumption of the winning and working or the depositing to any substantial extent at the site is unlikely. 15. The 2008 Regulations provide: 4(1) This regulation applies if, in relation to a minerals development (a) a period of two years beginning with the suspension date has expired, and (b) the steps specified in regulation 26A(17) of the 1999 Regulations have yet to be taken. (2) The suspension date is the date on which the suspension of minerals development (within the meaning of regulation 26A(18) of the 1999 Regulations) begins. (3) Paragraph 3 of Schedule 9 to the 1990 Act has effect in relation to any part of a site as it has effect in relation to the whole site. (4) Sub-paragraph (1) of that paragraph has effect as if for the words from the mineral planning authority may by order to the end there were substituted the mineral planning authority (i) must by order prohibit the resumption of the winning and working or the depositing; and

7 (ii) may in the order impose, in relation to the site, any such requirement as is specified in sub-paragraph (3). (5) In sub-paragraphs (2)(a) and (b) of that paragraph, references to winning and working or depositing are to be read as references to winning and working or depositing for which permission is not suspended by virtue of regulation 26A(18) of the 1999 Regulations. (pleaders emphasis) (Reg 9 of the Sept 2008 Regulations (No 2093) incorporated the wording of Reg 4 into the 1999 Regulations as Reg 26B. Reg 4 was then revoked by Reg 13 of the Sept 2008 Regulations) 16. The effect of the above wording appears to be that in assessing whether or not there has been a permanent cessation the mineral planning authority should disregard any operations which have been carried out in breach of planning control because of a ROMP EIA suspension. Thus if operations have continued for 2 years despite a suspension it cannot prevent the satisfaction of the test that there have been no operations for 2 years. This appears to correspond with the purpose and intendment of the 2008 Regulations as actually drafted. 17. The inclusion of the word only in the introductory words of TCPA 1990 Sch 9 para. 3(2) as amended The mineral planning authority may assume that the winning and working or the depositing has permanently ceased only when.. suggests that this provision is a restriction on the ability to satisfy the fundamental precondition. The relaxation of this restriction (where operations are undertaken in breach of ROMP EIA suspension) is unlikely to be able to remove the fundamental requirement (imposed by TCPA Sch 9 paragraph 3 sub paragraph (1)(a) and (b)) that the relevant judgment has been made that working has permanently ceased The need to make this application arises from the conflict between the clear Guidance issued by the SS and the apparent effect of Regulations (for which he is responsible) which are complex, convoluted and confusing and apparently fail to achieve the objective set out in the SSCLG s Guidance. Unfortunately the Government did not respond to an date 29 November 2012 raising this issue. 19. PDNPA is currently actively concerned in particular with two sites, Stanton Moor Quarry and Longstone Edge East which are owned by two of the Interested Parties. These sites went into automatic suspension under the 2008 Regulations on 31 October 2010, after the Authority agreed an extended period for submission of environmental information as allowed by the 2008 Regulations. In both cases the required environmental information was not provided to the Authority within the two year automatic suspension period. In November 2012, the Authority was facing two

8 examples of a scenario which Government Guidance anticipated arising only in very rare circumstances. Officers of the PDNPA had to determine the extent of the Authority s duty to make a prohibition order under Regulation 26B of the 1999 Regulations. 20. PDNPA must soon make a decision on these sites. Whatever decision it makes is likely to be subject to judicial review because of the apparent conflict between Government Guidance and the actual effect of the legislation to which the Guidance relates. PDNPA respects and seeks to comply with Government guidance but does not wish to flout the law. It therefore seeks the court s ruling on the effect of the relevant legislation. 21. PDNPA seeks a declaration of the true effect of the 2008 Regulations and the 1999 regulations as amended. They do not appear to have the effect which the SS s Explanatory Memorandum and Guidance says they do. PDNPA suggests the following declaration: The Government s Explanatory Memorandum of July 2008 and the Guidance of July 2008 on the effect of the Town and Country Planning (Environment Impact Assessment) (Mineral Permissions and Amendment) (England) Regulations (2008 SI No and 2008 SI No 2093) on the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations (1999 SI No 293) misrepresent their true effect. Upon the true construction of the Regulations, they do not impose on mineral planning authorities a duty to make a prohibition order after two years suspension unless the conditions of Town and Country Planning Act 1990 Schedule 9 (3) (1) as amended are met. These conditions include the requirement that the mineral planning authority judges that mineral operations have permanently ceased. 22. PDNPA therefore seeks (1) a declaration as to the true meaning and effect of the 2008 Regulations and the 1999 Regulations as amended, whether as set out above, or otherwise (2) the costs of this application from SSCLG whatever the decision of the court as to the true meaning and effect of the 2008 Regulations and the 1999 Regulations as amended. ROBERT McCRACKEN QC MEYRIC LEWIS Francis Taylor Building Temple, London EC4 February 2013