Celtic Energy Ltd v The Welsh Ministers [2011] EWCA Civ 1122

[2011] EWCA Civ 1122Case No C1/2010/1992
IN THE COURT OF APPEAL (CIVIL DIVISION)
2010] EWHC 2095 (Admin)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
His Honour Judge Vosper QC
(sitting as a Judge of the High Court)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/10/2011
Before
LORD JUSTICE PILLLORD JUSTICE JACKSONLORD JUSTICE GROSS
Between
Celtic Energy LimitedAppellantsThe Welsh MinistersRespondents
Mr Rhodri Price Lewis QC and Mr David Smith (instructed by Nabarro Sheffield LLP) for AppellantsMr Clive Lewis QC (instructed by the Treasury Solicitor) for RespondentsHearing Hearing dates : 30th June and 1 July 2011
Judgment
[1]This is an appeal against a decision of His Honour Judge Vosper QC, sitting as a Deputy High Court Judge, on 29 July 2010 whereby he refused an application by Celtic Energy Limited (“the appellants”) to quash a decision of the Welsh Ministers (“the respondents”) dismissing appeals against refusals of planning permission in May 2007 for the extraction of coal by opencast methods by Neath Port Talbot County Borough Council (Appeal B) and Bridgend County Borough Council (Appeal A). The councils are the Mineral Planning Authorities (“MPAs”) for the boroughs.[2]The appellants applied to the councils for permission to extract coal by opencast methods from an extension to an existing opencast coal site at Margam. Extraction of coal from the existing Margam opencast site had been granted in 2001. The existing sites straddled the boundaries between the boroughs and the proposed extension site lay within Neath Port Talbot. To proceed with the development, the appellants need to succeed on both appeals.[3]Each of the councils refused the application to it. Bridgend did so on landscape grounds, the detrimental impact on the amenity of persons living close to the site and its location within 200 metres of the settlement of Kenfig Hill, contrary to advice given in Draft Minerals Technical Advice Note 2: Coal (“MTAN2”). Neath Port Talbot refused on the grounds of visual intrusion into the landscape and an unreasonable level of disruption in terms of the visual impact, noise and dust causing unacceptable impact on local residents and the surrounding area.[4]The appellants appealed against the refusals and an Inspector appointed by the Welsh Ministers held a public inquiry over 12 days and made 2 site visits. He recommended dismissal of both appeals and the Welsh Ministers, by letter dated 19 November 2009, dismissed both appeals. The judge upheld the decision.

The issues

[5]Errors of law by the Welsh Ministers are now alleged. First, it is submitted that they misapplied MTAN2 or alternatively failed to explain what part the 500 metre stand-off referred to in MTAN2 had played in the decision making process. Secondly, it was submitted that landscape impact had been misreported by the Inspector and the restoration element of the proposal had not been addressed. Thirdly, the Inspector had embarked upon an analysis of evidence about dust without giving the appellants an opportunity to deal with the analysis adopted. Fourthly, there had been a failure to weigh the benefits of the proposal when making a decision.

The Inspector’s Report

[6]In his report, the Inspector referred to Mineral Planning Policy Wales (“MPPW”) dated December 2000. It provided that the guidance it contains should be taken into account by MPAs in the preparation of their unitary development plans and may be material to decisions on individual planning applications. Having referred to the policy of ensuring a secure, diverse and sustainable supply of energy at competitive prices, and the important environmental and amenity issues involved, the document provided, at paragraph 62:
“Proposals for opencast or deep-mine development or colliery spoil disposal will be expected to meet the following requirements otherwise they should not be approved: • The proposal should be environmentally acceptable or can be made so by planning conditions or obligations, and there must be no lasting environmental damage; • If this cannot be achieved, it should provide local or community benefits which clearly outweigh the dis-benefits of likely impacts to justify the grant of planning permission;”
Other requirements of little relevance to the present appeal follow. • The proposal should be environmentally acceptable or can be made so by planning conditions or obligations, and there must be no lasting environmental damage; • If this cannot be achieved, it should provide local or community benefits which clearly outweigh the dis-benefits of likely impacts to justify the grant of planning permission;”[7]In January 2009, the Ministers issued MTAN2. It provided that MPAs should set out their strategy for the sustainable management of the coal resources in their Local Development Plan (LDP). It was stated that “for certainty, areas where coal should not be worked, buffer zones around existing and proposed coal working sites and areas to be safeguarded should be shown on the Proposals Map” (paragraph 22).[8]Under the heading “Areas where coal working will not be acceptable” it was stated that the policy documents “provide the background to the LDP policy and to the Proposals Map on which the areas where coal working will not be acceptable should be shown” (paragraph 27).[9]At paragraph 29, it was stated:
“In defining these areas where coal working will not be acceptable, MPAs should take into account that coal working will generally not be acceptable within 500 metres of settlements, or within International and National Designations of environmental and cultural importance.”
[10]Paragraph 32 provided:
“MPPW sets out the concepts and policy on buffer zones in paragraph 40; a Buffer Zone is described as an area of protection around permitted and proposed mineral workings. They must be clearly defined and indicated in Unitary Development Plans (now LDPs). The MPA will show buffer zones on the Proposals Map, as 500m around permitted or proposed working, from the site boundary (or boundary for surface development for underground mining), unless there are exceptional circumstances as set out in paragraph 40 of MPPW or in paragraph 51, below.”
Paragraph 51 is not relevant. Paragraph 40 of MPPW considered the concept of buffer zones and stated that they must be clearly defined and indicated in development plans.[11]Paragraph 46 of MTAN2 provided:
“MPAs should set out in the LDP or in SPG criteria against which they will assess the impacts in considering an application, or review of Conditions.”
[12]The Inspector referred to the Neath Port Talbot and Bridgend UDPs. He noted that policy 20 in the Neath Port Talbot UDP favoured proposals for coal extraction where they would contribute to the County Borough’s share of local, regional or national production. That is stated to be subject to ensuring that the impacts on the environment and local communities are acceptable.[13]Policy ENV1 (reflected in M8) is permissive towards mineral extraction in the countryside, provided that the development would not create unacceptable impacts on its character and appearance and on the amenities of neighbouring residents. Policy GC2 seeks to prevent operations, including mineral working, which would fail to respect the landscape including its local topography, character and features.[14]Policy M9 seeks to resist opencast coal operations within a buffer zone of 200 metres from a settlement limit or from a house occupied on a regular basis. It is recognised that, in exceptional circumstances, a proposal may be able to justify it being considered favourably despite it being in conflict with that policy. The Inspector found, at paragraph 10.69, and it is not disputed, that residential areas to the north of Kenfig Hill come within the 500 metres zone. They are not within 200 metres.[15]The Inspector noted that policy 14 of the Bridgend UDP favours proposals for mineral development where they provide for the continuation of the County Borough’s share of regional production and where the environmental impacts of extraction are acceptable. Policy M2 is permissive towards mineral extraction where disturbance to the landscape of the area and to the neighbouring land uses in relation to excessive noise, dust and vibration can be reduced to acceptable levels. No buffer zone is stipulated.[16]Buffer zones are considered by the Inspector at paragraphs 14.10 and following:
“14.10 I will firstly consider the identification of areas where coal working would not be acceptable. One of the principles in PPW is that people and their quality of life should be at the centre of decision making. This underpins the approach of the Welsh Assembly Government to sustainable development. MPPW describes the need for unequivocal guidance in relation to the proximity of mineral operations to sensitive land uses. It also advises that further guidance on the factors that should be taken into account when defining buffer zones will be provided in TANs. MTAN2 has now been published and is material to the determination of these appeals. It advises that coal working will generally not be acceptable within 500m of settlements. Reference is also made to the possibility of additional areas of constraint. 14.11 The 200m buffer zone identified in the Neath Port Talbot UDP pre-dates MTAN2. It therefore does not provide an up to date reflection of national planning advice. The guidance in MTAN2, in the context of PPW and MPPW, therefore outweighs the UDP in this regard. I recognise that the Welsh Assembly Government did not object to the 200m buffer zone in its consultation on the draft UDP. This was an understandable position, given that MTAN2 was not formal advice at the time. 14.12 I note that the 500m separation distance from settlements within MTAN2 lies under the heading of ‘The Local Development Plan’. However, it appears that, unless there are exceptional circumstances, the Welsh Assembly Government considers that 500m generally strikes the correct balance between protecting the amenity of people who live and work in the local community, on one side, and society’s need for coal, on the other side. This balance needs to be struck, irrespective of whether an LDP is in force or not, and the identification of the area of coal working unacceptability within the LDP section is no reason to ignore the advice. 14.13 I will now consider the fact that the site is an extension to a previous operation. I acknowledge the benefits that this situation provides. The proposed extension however is not minor, and the benefits should be carefully weighed against impacts and cumulative impact in particular. Uncertainty and harm from a piecemeal approach can also be important considerations. In this case therefore, these benefits would not outweigh the harm identified below.”

Submissions on MTAN2

[17]For the appellants, Mr Price Lewis QC submitted that the Inspector has erred in law in his approach to the policy documents. MTAN2 does not claim to outweigh the statutory development plan. It provides advice as to how to create a new development plan. The Inspector has pre-judged the development plan process. Paragraph 2 of MTAN2 provides that documents such as MTANs “should be taken into account by MPAs in Wales in the preparation of development plans. They will usually be relevant to decisions on individual planning applications and mineral review applications and will be taken into account by the Welsh Ministers and Planning Inspectors in the determination of called-in planning applications and appeals”.[18]Production of a development plan is a comprehensive process in which considerations specific to the particular area are considered and there is provision for public consultation and examination at a public inquiry. MTAN2 should not, and does not purport to, subvert that process, it was submitted. It was an error of law, Mr Price Lewis submitted, even to regard MTAN2 as a factor in the development decision. Even if it could be taken into account, it could not override the existing development plan, with the buffer zone in Neath Port Talbot confined to 200 metres. It is accepted that parts of MTAN2 are relevant to individual development control decisions, by providing techniques for assessment of, for example, health impact, dust monitoring and noise impact. While parts of MTAN2 relate to development control, the creation and definition of a buffer zone is essentially an issue for the development plan procedure, it was submitted.[19]When considering dust, the Inspector, at paragraph 14.89, accepted that the use of the 500 metre distance is “somewhat arbitrary”. From earlier paragraphs, it is clear, it was submitted, that he has taken 500 metres as a figure on which to make planning judgments. It is not, however, clear, it was submitted, what use the Inspector has made of the 500 metre dimension when reaching his conclusion.[20]Mr Price Lewis relied on the decision of this court in R (Dacorum Borough Council) v The First Secretary of State [2009] EWCA Civ 1494. Sir David Keene, with whom Rix LJ and Lloyd LJ agreed, stated at paragraph 17:
“As for the proposition that, as a matter of law, plain words in an adopted Local Plan are to be overridden or set aside by wording in a planning policy guidance note, I have to say that I regard that as not only misconceived but quite astonishing. Unlike a PPG, a Local Plan will have gone through the necessary statutory processes, including public consultation and normally a public inquiry, and a report by an independent inspector, before being formally and ultimately adopted. It has statutory force, being explicitly referred to in the legislation. The Secretary of State will have had the opportunity to change it if he regards it as failing to conform with national policy (see sections 43, 44 and 45 of the 1990 Act).”
[21]Mr Clive Lewis QC, for the Ministers, submitted that the buffer zone figure in MTAN2 is not fundamental to these decisions. The decisions can be upheld even if MTAN2 has been over-emphasised or applied erroneously. The circumstances were different in Dacorum where the issue was whether the use of the expression “original dwelling” in the development plan was altered by a PPG on the same topic.[22]Mr Price Lewis also relied on an alleged inconsistency between the present decision and the later decision of the Welsh Ministers in an appeal concerning Bersham Bank colliery tip, Rhostyllen, Wrexham. Evidence before the court on behalf of the Welsh Ministers in relation to Bersham, stipulates that MTAN2 is not “a source of relevant national policy”.[23]In that case the appeal was allowed and development permitted, notwithstanding a reference by the Inspector to MTAN2 and in a situation where working would be well within 500 metres of a settlement. The Inspector did not refer to the 500 metre distance in MTAN2 and concluded that the proposed development “would be in accord with development plan and national policy”. The Welsh Ministers agreed.[24]While, in the end, the Bersham analogy in my judgment does not assist the appellants, I am somewhat disturbed by the approach adopted on behalf of the Ministers on this issue, which had not emerged when the case was before the judge. It is claimed that the Bersham proposal was not covered by MTAN2. Paragraph 1 of MTAN2 provides that in the advice note the term “coal working” includes “recovery of coal from tips”. That would appear to cover Bersham, or at least be so analogous as to require an explanation why it was claimed not to cover it.[25]It is said, rightly, that the application documents at Bersham did not seek permission for the recovery of coal or any coal working. There were, however, references in the environmental statement to mineral extraction and it was stated that the spoil tip involved was estimated to contain a very substantial tonnage of “un-burnt black shale and gravel sized coal” and “un-burnt colliery spoil material” (e.g. 10.6.15). While coal was to be recovered not for use as coal but in cement manufacture, it was nevertheless coal recovered.[26]In MTAN2 it was stated that “past coal processing was generally very inefficient and substantial quantities of coal often remained in the spoil especially in slurry ponds. Coal (or aggregate) recovery involves the re-excavation of spoil which may require screening and/or washing to remove the coal before the spoil is re-deposited within the original tipping area”. That is defined as “coal recovery”.[27]Moreover, in the letter calling in the Bersham appeal for determination by the Welsh Ministers, the reason given was that the appeal “relates to a major proposal involving the winning and working of minerals”, plainly a MTAN2 proposal. The Inspector himself referred in his Report to the appeal relating to “a major proposal involving the winning and working of minerals (some 6 million tonnes)”.[28]I am not impressed, despite its ingenuity, by the evidence on behalf of the Ministers that the reason there given for recovering jurisdiction was not intended as a statement of what the appeal involved. I would be very surprised if those advising the Ministers were unaware of what Bersham involved and the relevance of MTAN2. If they were not, in my view they should have been.[29]That gets the appellants nowhere, however. Even if, to achieve consistency, the Ministers ought to have taken into account the buffer zone in MTAN2 at Bersham, as they had done at Kenfig Hill, it cannot impugn the decisions now under consideration. The inconsistency may have favoured development at Bersham but, if MTAN2 was later overlooked at Bersham, it certainly required consideration at Kenfig Hill.

Findings on landscape

[30]As anticipated at 14.13 of his report, the Inspector went on to consider the landscape impact of the proposed development. It was alleged that the Inspector failed to deal with the effect of restoration on “some of the surrounding area” and had not reported on the totality of the proposal. The Inspector dealt with restoration strategy and made findings which, in my view, he was entitled to make. I say now that I do not accept that he left the restorative elements of the proposal out of account when forming a judgment on landscape impact.[31]The Inspector described in some detail the landscape of the area, including local features. He concluded, at paragraph 14.32:
“From all the above, the proposal would have a major adverse impact on the extension site during extraction and restoration, although this would then reduce in significance. This impact would have a moderate adverse and unacceptable effect on the surrounding landscape character areas of Coedhirwaun, Pyle and Bridgend: Cribwr. The proposal would therefore conflict with Neath Port Talbot UDP Policy ENV1.”
[32]Following detailed analysis from a number of viewpoints, the Inspector stated, at paragraph 14.58:
“The proposal would have a substantial adverse visual impact on sensitive receptors from many view points in most directions around the site.”
He concluded, at paragraph 14.62:
“My conclusions on character and appearance cover both appeals A and B. Notwithstanding that I have not found any material harm in relation to the open character of the Green Wedge under appeal B, this would not outweigh the other harm that I have found. I therefore conclude that the proposal would have a harmful effect on the character and appearance of the appeal site and the surrounding area. I further conclude that the proposal would thus conflict with Bridgend UDP Policies M2 and EV7, Neath Port Talbot UDP Policies ENV1, ENV3, GC2 and M8, and the guidance within PPW, MPPW and MTAN2 in this regard.”
The Inspector referred, at paragraph 14.64, to the reduced attractiveness of the area for recreational activities and the reduction of opportunities for a generation of young people from the surrounding area.[33]A summary of conclusions is also stated in section 15:
“The proposal would have a harmful effect on the character and appearance of the appeal site and the surrounding area. It would also have a harmful effect on the public enjoyment of the countryside. The cumulative effect of this harm when assessed in conjunction with earlier surface mining schemes adds weight to my opinions. The proposal would thus conflict with the Bridgend and Neath Port Talbot UDPs, PPW, MPPW and MTAN2 in this regard, sufficient for me to recommend dismissal of both appeals.”

Dust

[34]Nuisance by dust is considered at paragraph 15.3 which concludes:
“Furthermore, the fact that, under appeal A, there would be no material harm from dust does not outweigh the harm that I have found in relation to character, appearance and the countryside, I have taken into account all the other matters raised. None however carry sufficient weight to alter my conclusions.”
[35]Mr Price Lewis submitted that the Inspector erred in analysing the issue of nuisance without giving the appellants an opportunity to deal with the analysis adopted. The Inspector did conduct a detailed analysis and concluded, at paragraph 14.90:
“I therefore consider that the proposal would have a harmful effect on the living conditions of residents in the settlement of Kenfig Hill, in relation to nuisance dust in respect of Appeal B. The proposal would not however have a similarly harmful effect on nearby residents in respect of Appeal A.”
[36]The appellants called expert evidence about dust. As to that, the Inspector concluded, at paragraph 14.70:
“I therefore have some concerns as to the validity of its higher dust concentrations as true background levels.”
The basis for these concerns is set out in detail. It is common ground that the “concerns” were not put to the expert witness and there is evidence that, had he been given the opportunity, he had a good explanation, as set out in a witness statement. The explanation plainly merited consideration and it is unfortunate that the Inspector did not express his concerns to the witness to allow him to explain. Mr Price Lewis submitted that, in the result, the appellants did not have a fair crack of the whip on this issue.[37]Local residents also gave evidence about dust, which the Inspector considered in detail. He refers, in his conclusions, to the “anecdotal” evidence of nuisance, and to his own observations.[38]In his summary of conclusions, parts of which have already been cited, the Inspector stated, at paragraph 15.3:
“The proposal would also have a harmful effect on the living conditions of residents of Kenfig Hill in relation to nuisance dust. The proposal would thus conflict with the Neath Port Talbot UDP, PPW, MPPW and MTAN2 in this regard. The harm from dust however would only be present under appeal B, and it adds weight to my view on the unacceptability of the proposal under appeal B. The fact that there would be no material harm from dust related health issues or noise is not sufficient to outweigh the harm that I have found in respect of Appeal A.”

The judge found, at paragraph 95:

“But I am also persuaded by Mr Clive Lewis's submission that the inspector's conclusion on dust was based on the evidence of residents, the concerns of the Councils and his own site visits. I do not accept that his doubts with respect to the validity of the Brynhyfryd data were the essential link in his line of reasoning . . .”
[40]No dust nuisance was found in Appeal A and it cannot affect the issue on that appeal. I read paragraph 15.3 as treating harm from dust only as a makeweight to his conclusion on Appeal B. The Inspector’s conclusion turned essentially on his view of harm to the character and appearance of the countryside and the public’s enjoyment of it. The defect in procedure in consideration of the evidence about dust does not, on the present facts, provide a basis for quashing the decision. However, that conclusion in this case does not detract from the general obligation on an Inspector, who in this case has conducted most thorough investigations of his own, from giving a party to an appeal an opportunity to deal with any technical concerns the Inspector may have.

Balance between benefit and harm

[41]I have summarised the appellants’ submissions on MTAN2. It was also submitted that the Inspector has failed fairly to balance the benefit of the proposal with the harm he found. When setting out the “Main Considerations” at paragraph 14.4, only the potential harmful effects are set out and there is no mention of the prospective benefits. Further, the “Summary of Conclusions” refers only to harm and merely adds that the Inspector has “taken into account all the other matters raised”. The policy documents plainly contemplate that a balance between benefits and harm must be struck and that test is not sufficiently stated. The need for coal and the employment benefits of the proposal (14.112) are treated as “other matters” and are dealt with obliquely. There is no reference to them in the Summary of Conclusions.

Conclusions

[42]In my judgment, there is force in the criticism of the layout of the report and the somewhat oblique reference to the benefits. The economic and employment advantages deserved plain and prominent recognition. However, in substance, the balance has been struck, and struck unfavourably to the proposal. Having referred to benefits in paragraph 14.112, the Inspector concluded:
“They are not however particular to this location or this proposal and therefore would not outweigh the harm that I have already found.”
That must be read with the firm conclusions, already cited, in relation to the harmful effect of the proposal on the character and appearance of the appeal site, surrounding area and on public enjoyment of the countryside. The final balance does not have the prominence or position it deserved but is plainly, if briefly, stated.[43]In the decision letter dated 19 November 2009, the Welsh Ministers, rightly in my view, expressed a reservation about the Inspector’s analysis when dealing with coal production and, in particular as to how imported coal is obtained at source. The issue need not be considered in detail. The Ministers were entitled on the evidence to conclude, at paragraph 7 of the letter, that “the savings that would be made by using coal from the appeal sites would not outweigh the objections to the proposed development”.[44]The Inspector plainly took the view, at paragraph 14.11, that, for development control purposes, the 500 metre buffer zone MTAN2 replaces the 200 metres buffer zone in the Neath Port Talbot development plan. He stated that MTAN2 outweighs the development plan “in this regard”.[45]The impact of the 500 metre buffer zone in MTAN2 on development plans presents MPAs, and planning Inspectors, with a dilemma. That is exacerbated by evidence on behalf of the Ministers before this court stating that MTAN2 is not “a source of relevant national policy”. Development control is development plan led (by virtue, for example, of section 38(6) of the 1990 Act) and decision makers need to ask themselves the question whether the development plan provision on such a basic point is overruled by a Ministerial Technical Advice Note. MTAN2 does, at paragraphs 27 and 29, direct attention to “LDP policy” and it is not obvious that the 500 metre zone immediately replaces LDP provisions. Further guidance would have been helpful.[46]In my judgment, the Inspector put it too bluntly. On the other hand, it is difficult for decision makers to ignore the advice note, given the source from which it came. Development plans necessarily take a considerable time to prepare and the principal planning authority, the Ministers, may in some circumstances recommend a change of policy in the meantime. Its intended impact on existing development plans should be considered by Ministers and made clear. In its application, respect is due to the basis of and reasons for development plan policies in the local context.[47]I see some force in the submission that the entire approach of the Inspector to the landscape and to dust was based on giving overriding importance to the 500 metres buffer zone. That figure is mentioned more than once in his consideration of the evidence about dust. However, even if the distance factor has been overstated in other respects, I cannot conclude that it has clouded the Inspector’s appraisal and conclusion of the impact of the proposal on the countryside and its use.[48]In my judgment, this appeal turns on the Inspector’s conclusion that the harm in relation to the character and appearance of the countryside and the public enjoyment of the countryside outweighed the benefits of the proposal. That was a planning judgment which, on the evidence, the Inspector was entitled to make, and the Ministers to uphold. The development plans of the MPAs are permissive towards mineral extraction but only where the impact on the countryside and landscape are acceptable.[49]The effect on the countryside was crucial to the decision and does not depend on whether 200 metres or 500 metres is adopted as a buffer zone for settlements. It does not depend on any harm caused by dust. The appellants make legitimate complaints about parts of the procedure and I have considered them. In so far as they have merit, they do not impugn the decision made on the ground it was.[50]For that reason, I would dismiss this appeal.

LORD JUSTICE JACKSON :

[51]I agree.

LORD JUSTICE GROSS :

[52]I also agree.