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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Celtic Energy Ltd, R (on the application of) v The Welsh Ministers [2010] EWHC 2095 (Admin) (29 July 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2095.html Cite as: [2010] EWHC 2095 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Swansea Civil Justice Centre Caravella House Quay West, Quay Street Swansea SA1 1SP
		29th July 2010

His Honour Judge Vosper Q.C:

I direct pursuant to CPR Part 39 PD 6.1 that no official recording shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.

1. This is an application by the Claimant, Celtic Energy Limited, under section 288 of the Town and Country Planning Act 1990 seeking to quash a decision of the Welsh Ministers dismissing appeals against refusals of planning permission for the extraction of coal by open-cast methods by Neath Port Talbot County Borough Council (Appeal B) and Bridgend County Borough Council (Appeal A). Those councils are the mineral planning authorities for their respective areas.
2. The application relates to an application for permission to extract coal by open-cast methods from an extension ("the Margam Extension Opencast Scheme") to an existing opencast coal site. The appeal site included an existing operational site and the extension. Planning permission for the extraction of coal from the existing Margam opencast site had been granted in 2001. Excavation at that site had been completed in 2008 but restoration of that site had not yet been completed. The existing site straddled the boundaries of the areas of both Neath Port Talbot and Bridgend County Boroughs. The proposed extension site lay within the area of Neath Port Talbot. The proposed extension would delay restoration of the existing site by up to 5½ years.
3. The Claimant applied for planning permission in December 2004. Those applications were withdrawn in November 2006 and the Claimant made further applications for planning permission to Bridgend and Neath Port Talbot in May 2007. Those subsequent applications were refused by both councils, each relying on particular provisions of particular planning policies forming part of their own development plans.
4. The reasons (taken from the Inspector's report paragraph 4.3) for the dismissal of the application by Bridgend were:

1) That the site is conspicuous in the countryside and forms part of an attractive area of open land which should in the interests of visual amenities remain undeveloped. The proposed development would therefore be contrary to policies EV7 and EV45 of the Bridgend Unitary Development Plan.

2) The cumulative impact with respect to the effects of noise, dust and the loss of footpath and highway links arising from the long term operation of the current opencast coal site when considered in association with the likely impact of the proposed development would have a detrimental impact on the amenity of persons living close to the site.

3) The proposed development would be located within 200 metres of the designated settlement of Kenfig Hill contrary to the advice given in the Draft Minerals Technical Advice Note 2 (Wales) – Coal.

5. The reasons (taken from the Inspector's report paragraph 4.4) for the dismissal of the application by Neath Port Talbot were:

1) The development would create a visual intrusion into the landscape which would result in significant harm to the rural character of the area, prejudice the open character of the green wedge and cause demonstrable harm to the visual amenity of the neighbouring residents contrary to Policy ENV2(v) of the Deposit Draft Unitary Development Plan for Neath Port Talbot, Policies C1 and M6(iv) of the West Glamorgan Structure Plan (Review No 2) as amended and Policy DC3 of the Draft Minerals Local Plan for West Glamorgan.

2) The development will perpetuate opencast activities within the locality and on the exiting site for a further minimum period of 5 ½ years resulting in an unreasonable level of disruption in terms of the visual impact noise and dust thereby causing unacceptable detrimental cumulative impact on local residents and the surrounding area contrary to M3 of the West Glamorgan Structure Plan (Review No 2), Policy GC2 of the Deposit Draft Unitary Development Plan for Neath Port Talbot and Policy DC5 of the Draft Minerals Local Plan for West Glamorgan.

6. The Claimant appealed. An inspector held an inquiry over twelve days and made two site visits. The inspector recommended dismissal of both appeals. The Welsh Ministers accepted those recommendations and his reasoning and dismissed the appeals by letter dated19 November 2009.
7. In summary, at paragraphs 15.2 of his report, the inspector recommended that Appeals A and B should be dismissed because:

"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 Unitary Development Plans, Planning Policy Wales, Minerals Planning Policy Wales and Minerals Technical Advice Note 2:Coal in this regard. The harm identified would be present under Appeals A and B, and is sufficient for me to recommend dismissal of both appeals."

8. In addition at paragraph 15.3, he recommended that Appeal B (Neath Port Talbot) should be dismissed because:

"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 B. 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."

9. The Details of Claim filed on behalf of the Claimant make four criticisms of the inspector's report. They are:

1. That he made an error of law in his approach to Minerals Technical Advice Note 2: Coal which at paragraph 29 states that "coal working will generally not be acceptable within 500 metres of settlements." The Claimant contends that the inspector wrongly regarded that paragraph as taking priority over the Councils' Unitary Development Plans or wrongly concluded that a proposal ought ordinarily to fail if it fell within the 500 metres specified.

2. That he misunderstood or misapplied the Councils' landscape impact assessment or that he departed from it without giving adequate reasons and without offering the Claimant an opportunity of dealing with it.

3. That in coming to a conclusion about likely levels of dust he departed from common ground between qualified experts in the following respects: he rejected the common opinion that readings at a dust monitoring station at Brynhyfryd, to the west of the site, were representative of background dust levels with the consequence that he formed a contrary conclusion without giving the Claimant an opportunity to deal with it. Further he incorrectly summarised the Claimant's evidence as an acceptance that its proposed action plan would not materially reduce dust emissions below those which had pertained during previous workings but that emissions would account for a critical component of deposition rates above 80mg/m²/day.

4. That the inspector failed lawfully to balance the benefits of the proposal.

Minerals Technical Advice Note 2: Coal (MTAN 2)

The Claimant's Submissions.

10. MTAN 2 was published by the Welsh Assembly Government in January 2009, about two weeks before the Inquiry. Its function is to give "detailed advice on the mechanisms for delivering the policy for coal extraction through surface and underground working by mineral planning authorities and the coal mining industry": paragraph 1. The Claimant contends that it gives advice in relation to the preparation of Development Plans and with respect to current best practice in the control and supervision of surface coal mining. It is the former function which is the basis of the Claimant's submission. MTAN 2 does not supersede development plans. Where it does supersede other advice, it does so expressly: see paragraph 3.
11. In the preparation of a development plan, the Claimant submits, MTAN 2 advises mineral planning authorities to identify on the proposals map three areas: areas where coal should not be worked; buffer zones around existing and proposed coal working sites, and areas to be safeguarded. There is a presumption in favour of a 500 metre buffer zone (paragraph 32) whose purpose is to protect established or proposed coal workings from encroaching development to avoid an existing project having to be curtailed or planned resources lost.
12. By contrast, the Claimant submits, for an area where coal working will not be acceptable the advice is that the statutory procedure for the preparation of a development plan must be gone through. Evidence must be prepared and examined and site-specific considerations will apply before such an area may be included in the UDP or LDP.
13. Within the UDP of Neath Port Talbot Council is policy M9 which 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 which is not in the ownership or control of the applicant. (Bridgend Council it should be noted has no buffer zone policy in its UDP.) The Claimant's argument is that the inspector noted policy M9 but went on to say that the UDP did not provide an up to date reflection of national planning advice. The guidance in MTAN 2 outweighed the UDP in that regard. The Claimant criticizes this approach. It says that the inspector approached MTAN 2 as if it represents a presumption against coal working within 500 metres of a settlement in the absence of exceptional circumstances. In that approach, the Claimant says, he erred in law. MTAN 2 raised no such policy presumption. It is during the process leading to the development plan that the question of the appropriate buffer zone for any identified mineral reserve should be addressed, in the light of all material planning factors for that site.
14. The Claimant's argument is that relevant policy is to be found in, amongst other publications, Planning Policy for Wales (PPW) and Minerals Planning Policy for Wales (MPPW). Although MTAN 2 can affect the weight to be attached to existing policies, it cannot override them. More specifically it cannot replace a buffer zone contained in a UDP. Its relevance is during the statutory procedure leading to the making or amendment of a development plan.
15. The Claimant refers to section 38(6) of the Planning and Compulsory Purchase Act 2004 which provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

16. The UDPs of both Councils contain policies which are permissive to the abstraction of coal subject to acceptable levels of impact on the area.
17. In summary MTAN 2 may be material to an individual planning application (indeed paragraph 2 expressly says so) but such materiality is effectively limited to that part of the Advice which relates to coal extraction. What the inspector has done is to pre-judge the process by which each Council is enjoined to evaluate its future development plan. What he was entitled to do was no more than take into account that when the Councils were next preparing their development plan they in turn were instructed to take account of the advice in favour of a 500 metre zone set out in MTAN 2.
18. The Claimant submits that the error into which the inspector fell was to attach to words a meaning which they are not capable of bearing. The Claimant relies upon the following citation from the judgment of Brooke LJ in R v Derbyshire County Council ex parte Woods [1998] Env L R 277:

"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham D.C. v. Secretary of State for the Environment [1992] 1 P.L.R. 81 , per Nolan L.J. at p. 88 ). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law."

Here the Claimant submits that the inspector, in saying that the advice in MTAN 2 outweighed the policy set out in the UDP attached a meaning to the words of MTAN 2 which they are not capable of bearing.

19. So, it is submitted, the inspector begins his conclusions with that expressed mind-frame and carries it through into his conclusions on the issue of dust. Thus at paragraph 14.80 of his report he says:

"Moreover the existing site would continue to generate dust for an additional period of time. The settlement of Kenfig Hill would lie within 500 m of coal working and properties in Kenfig Hill ….would also lie within 200 m of the open-cast coal operations in conflict with Neath Port Talbot UDP Policy M9."

(It is said by the Claimant that there are 8 houses within 200 m and 270 within 500 m.)

20. The Claimant submits either that the inspector has approached his decision-making on the basis that exceptional circumstances need to have been shown for coal working within 500 metres of a settlement, or that it is unclear how he has approached the advice relating to 500 metres of separation. He has not provided reasons as to how he has approached that piece of information.
21. The Claimant relies upon the following citation from the speech of Lord Brown in South Bucks District Council v Porter [2004] UKHL 33 at paragraph 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

The Defendants' Submissions.

22. The principal submission on behalf of the Defendants is that the inspector's reasons for dismissing the appeal are the harm resulting from the landscape impact on the site and the surrounding area, the visual impact and the impact on public enjoyment of the countryside. Each of those issues was considered in detail.
23. With respect to MTAN 2, the Defendants' submissions are that the inspector was aware of and was under no misunderstanding about its legal status. At paragraph 7.6 of his report he says that MTAN 2 sets out detailed advice on the mechanisms for delivering policy for coal extraction by mineral planning authorities. It is usually material in decisions on individual planning applications and will be taken into account by the Welsh Ministers in the determination of planning appeals.
24. Further he did not misconstrue MTAN2. He correctly summarised the material points from it. He correctly noted that the 500 metres separation distance between coal mining operations and settlements came under the heading of "Local Development Plan." But he correctly understood that, unless there were exceptional circumstances, the Welsh Assembly Government in the MTAN2 was expressing the view that 500 metres generally strikes the correct balance between protecting the amenity of local persons and the need for coal. That is why local authorities should apply that approach in defining areas where coal working would not be acceptable.
25. Further, Neath Port Talbot Council had relied on policy M9 of its development plan which indicated that proposals for opencast coal operations would not be permitted within 200 metres of settlement. But, the inspector concluded that the 200 metre zone did not provide an up to date reflection of national planning advice. The guidance given by MTAN 2, in the context of PPW and MPPW, therefore outweighed the UDP in that regard. He was entitled and correct to come to that conclusion.
26. Consequently, the Defendants submit, the decision to dismiss the appeals on grounds of landscape, visual amenity and public enjoyment of the countryside was consistent with the relevant UDPs, PPW and MPPW and MTAN2. That is a lawful decision.

Landscape

The Claimant's Submissions.

27. The Claimant and the mineral planning authorities carried out a landscape impact assessment. The Claimant contends that the inspector appears generally to have followed the mineral planning authorities' assessment on landscape impact assessment but misrecited certain conclusions that he appears to be endorsing by overstating the degree of impact during site workings; omitting references to, and failing to take into account, residual impact after restoration, and failing to give reasons.
28. The criticism is made in respect of three findings in relation to the landscape impact on the surrounding area at Coedhirwaun, Pyle and Bridgend Cribwr, where it is said that the inspector failed to record that the impact during extraction was, respectively, moderate to minor, low adverse and moderate adverse. After restoration the impact was, respectively, minor to low adverse, neutral and minor adverse. The inspector recorded the impact as moderate adverse with respect to each area. This relates to the period of extraction. He does not refer to the impact after restoration.
29. At paragraph 14.32 of his report the inspector concludes that the proposal would have a major adverse impact on the extension site during extraction and restoration. But he does not address the effects of restoration.
30. Restoration was important and agreed. At paragraph 6.10 of his report the inspector said:

"It is agreed that the proposed restoration contours on the strategy plan provide in principle for a satisfactory topography for the land to be restored and reasonably complement the surrounding countryside feature. Those contours satisfy the overall objectives of landform. The overall restoration and aftercare strategy satisfies the objectives of enhancement of local biodiversity and recreation of priority habitats. The strategy can also provide reasonable opportunities for the reintroduction of the existing fauna including badgers, bats and bird species. In terms of the restoration and aftercare strategy the proposal would not conflict with any policies within the UDPs. Details of the restoration and aftercare would however need to be considered further and its management agreed."

That is a material consideration which he ought to have addressed.

31. It is contended that the inspector fell into error in misunderstanding or misapplying the evidence; taking account of immaterial considerations or failing to take account of material considerations, and failing to give adequate reasons for his analysis.
32. In essence the Claimant submits that the inspector misapplied the landscape assessment material before him or departed from it without giving the Claimant an opportunity to deal with that departure. His resulting analysis was more adverse to the Claimant than that urged upon him by the mineral planning authorities.

The Defendants' Submissions.

33. The Defendants submit firstly that there is no challenge to the inspector's findings concerning the landscape impact on the appeal site (where the proposal was found to have a major adverse impact; see paragraphs 14.16-14.23 and 14.32); the visual impact (paragraphs 14.35 to 14.60) and the impact on the countryside (paragraphs 14.63 to 14.66)
34. Next the Defendants point out that the inspector had before him evidence from the Claimant, the mineral planning authorities and independent objectors, and that he conducted a site visit. He used the landscape areas devised for the landscape impact assessment but formed his own assessment of the impact on the areas surrounding the proposal as he was entitled to do. Mr Clive Lewis QC, for the Defendants, refers to paragraph 14.24 of the report where the inspector says:

"I now turn to consider the landscape around the site. The landscape character areas devised for the Neath Port Talbot area seem to me to be soundly based, and I shall undertake my assessment using these, together with the Cribwr, Mynydd Baedan and Pyle areas in Bridgend." (Emphasis added)

35. In any event, the Defendants submit, with respect to two areas, Coedhirwaun and Bridgend Cribwr, the inspector's judgement coincides with the mineral planning authoritiy's view. The authority judged the effect of the impact of the extraction as moderate to minor in the case of Coedhirwaun and moderate adverse in the case of Bridgend Cribwr. The inspector found a moderate adverse impact in both cases. The inspector did not find it necessary to consider the potential impact of the restoration.
36. In relation to Pyle, the mineral planning authority considered that extraction would have a low adverse impact whereas the Inspector considered it would have a moderate adverse impact. That was a judgement that the inspector was entitled to reach. He had made his own site inspection. He had evidence from local residents about the effect on Kenfig Hill, a community within the Pyle site. There is no basis for concluding that that judgment was irrational.
37. Mr Clive Lewis QC refers me to R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC Admin 676 where Sullivan J said at paragraph 47:

"It is important to recognise that this is not a case where the Inspector was simply being asked to make an aesthetic judgment: would the removal of a particular tree cause unacceptable harm to the character and appearance of the appeal site and the surrounding area? There was a "technical" issue which had to be addressed, namely whether the retention of tree T7 could be secured by the imposition of an appropriate condition or conditions."

The inference is that, had it been a matter of visual impact, it would have been for the inspector.

38. With respect to restoration the Defendants point out that the inspector is not required to deal with every point raised. Restoration was not an issue involving harm but neither did the inspector fully accept the benefits contended for by the Claimant.
39. Moreover, the Defendants submit, it cannot be said, in reality, that any difference of conclusion between a "low adverse" impact and a "moderate adverse" impact in this area affects in any way the judgement of the inspector on harm. It was the effect on the site which was the major adverse impact. That major impact and the moderate adverse impact on the three surrounding areas were in conflict with Neath Port Talbot Policy ENV1.
40. Further, the effect on Bridgend Cribwr was incompatible with Bridgend UDP Policy EV7 and the visual impact conflicted with Bridgend UDP Policy EV7 and Neath Port Talbot Policies ENV3 and M8. The impact on the countryside conflicted with Bridgend and Neath Port Talbot UDP Strategic Polices 2 and 11 and PPW. The proposal conflicted with all those provisions in the Bridgend and Neath Port Talbot UDP. There is no basis for saying that a difference of view on one of three sites in the surrounding area would have led to any different conclusion. It should be noted that the same assessment of harm was reached in relation to Appeal A (Bridgend) even though Neath Port Talbot UDP Policy ENV1 was not applicable there.

Dust.

The Claimant's Submissions.

41. MTAN 2 at paragraph 155 notes that the "unofficial" UK deposition rate for coal dust of 200mg/m²/day is too high. It recommends a maximum of 80mg/m²/day as a weekly average.
42. Brynhyfryd lies within the valley in which the existing opencast site is situated and about 1,200 metres to the west of that site. A deposit gauge there was used as the basis for establishing background dust deposition. The Claimant submits that the use of these data was regarded as appropriate by the Councils. The Claimant refers to paragraph 10.79 of the report where the inspector records the Councils' case that the method is reasonable for establishing background dust deposition rates.
43. However, at paragraphs 14.67 to 14.72 of his report, the inspector reasons as follows: the coal fraction in deposits recorded at Brynhyfryd is 18%. Of that a significant element was attributable to the existing working site. Results from gauges closer to the site and in areas adversely affected by prevailing winds (at Swn yr Afon in 2005 and from Crown Road in the six years up to 2003) showed coal fractions of 20% and 29% respectively. Staining in such areas observed by the inspector at a site visit was attributable to a significant coal fraction in the dust. The source of this coal dust was the coal stockpiles on the existing site. Those stockpiles were also the source of the coal fraction at Brynhyfryd.
44. At paragraph 14.70 the inspector says:

"Notwithstanding the agreement between the parties, the use of the data from Brynhyfryd for background levels relates to an unrestored site. I therefore have some concerns as to the validity of its higher dust concentrations as true background levels."

45. The Claimant contends that this reasoning was not put to any expert witness for his observations. Had that been done, the Claimant's expert Mr Andrew King would have had answers to these points as he sets out in a statement dated 21^st December 2009. In fact some of the points which Mr King deals with in his statement were before the inspector. Examples are the paragraphs in MTAN 2 which deal with deposition of coal dust of different particle sizes. But other evidence relating to possible explanations for the percentage of coal dust at Brynhyfryd, such as the amount of coal dust naturally occurring in the soil in that vicinity, were not put before him.
46. Further, following on from his reasoning with respect to the validity of the data on background dust levels, the inspector concluded that the Claimant's Dust Management Action Plan was unable to contain dust emissions and that the Claimant was conceding that emissions could not be sufficiently contained. A more accurate statement of the Claimant's position is that background levels as measured at Brynhyfryd frequently exceeded 80mg/m²/day and that therefore it was not possible in the area generally to achieve deposition levels below that rate. That statement of the Claimant's position was before the inspector in the evidence of Mr King.
47. The Claimant also submits that it was common ground that the Claimant's proposed Dust Management and Action Plan was more stringent than that recommended by MTAN 2 and accordingly could be expected to contain dust impacts within levels acceptable to the Welsh Assembly Government.
48. The Claimant therefore submits that the inspector was wrong in his analysis of the evidence; that he did not give the Claimant an opportunity to deal with it and that had he done so the Claimant through its witnesses would have been able to correct the inspector's error.
49. Furthermore the Claimant says that the inspector's views about the Brynhyfryd data are critical to his line of reasoning.
50. The Claimant relies upon the following citation from the judgment of Ouseley J in Castleford Homes Ltd v Secretary of State for the Environment [2001] EWHC Admin 77 at paragraph 52 for the principles governing my approach to this issue:

"The relevant law, though not cited to me, is to be found in cases such as Fairmount Investment Ltd. -v- The Secretary of State for the Environment [1976] 1 WLR 1255 at p.1266; and H. Sabey & Co. Ltd. -v- The Secretary of State for the Environment [1978] 1 All E.R. 586. Did the Claimant have a "fair crack of the whip?" Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair.

53. 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."

51. The Claimant further relies on the following citation from the judgment of Sullivan J in R (Poole) v Secretary of State for Communities and Local Government at paragraph 39:

"I accept Mr Auburn's submissions, firstly, that the Inspector was entitled to use her own planning expertise and form her own judgments using that expertise: see Westminster Renslade Limited v Secretary of State for the Environment [1983] JPL 454 at page 455; and secondly that the Inspector was not bound by the statement and was entitled to form her own view subject to giving the applicant a fair opportunity to comment: see Wigan Metropolitan Borough Council v the Secretary of State for the Environment [2002] JPL 417 at page 40; [2001] EWCA Admin 587.

However, it is most important when deciding whether the parties at an inquiry have had a fair opportunity to comment on an issue raised by an Inspector of his or her own motion, and whether they could reasonably have anticipated that an issue had to be addressed because it might be raised by an Inspector, to bear in mind the highly focused nature of the modern public inquiry where the whole emphasis of the Rules and procedural guidance contained in Circulars is to encourage the parties to focus their evidence and submissions on those matters that are in dispute."

52. The Claimant also relies upon the decision of Frances Patterson QC sitting as a Deputy Judge of the High Court in R (Gates Hydraulics Ltd) v Secretary of State for Communities and Local Government [2009] EWHC 2187 as illustrative of that approach. The relevant citation is:

"I conclude therefore that the claimant had a reasonable expectation that upon the conclusion of the statement of common ground, upon confirmation of its status in cross-examination, that noise and disturbance were no longer a main issue at the public inquiry. If it had appeared to the Inspector that she was of a different view, then that was something that she should have made clear to enable the claimant to have a fair crack at the whip. I completely accept, as Miss Davies has submitted, that it is not incumbent on any Inspector to check that all parties are aware of all of the issues at all of the times. In the particular circumstances here, however, as the evidence unfolded and the statement of common ground was produced, it was reasonable to conclude that what had initially been thought of as a main issue was no longer the case. If that was not the position, so far as the Inspector was concerned, it was, in the particular circumstances, something that she should have raised. I conclude, therefore, that it was procedurally unfair for the Inspector to come to the conclusion that she did, without providing the claimant an opportunity to address her concerns.

This is not a case of aesthetic judgment for the Inspector. The circumstances here raised potentially a technical issue relating to tone or quality of noise which could therefore have been addressed by an expert in that field. As a result, I am satisfied that there was a breach of the requirements of natural justice in that the procedure that was adopted was unfair."

The Defendants' Submissions

53. The Defendants point out that this ground relates only to Appeal B (the appeal against Neath Port Talbot). Dust was not an issue in relation to Appeal A.
54. Next they submit that in reality, this ground does not arise. The basis for the decision in relation to Appeals A and B is the decision on character and appearance of the appeal site and surrounding area and harm to the public enjoyment of the countryside. As the inspector noted, that harm was sufficient to recommend that both appeals be dismissed. The Welsh Ministers expressly agreed with the inspector's conclusions and reasoning at paragraph 8 of the decision letter. Dust was an additional factor adding weight to his recommendations on Appeal B. Consequently, the issue of dust is ultimately irrelevant to the disposal of this application: either the other grounds of challenge are made out or they are not. If they are not, there is no basis for quashing the decision in relation to Appeal B by reason of the position in relation to dust.
55. But in any event, the Defendants submit, the decision on dust is lawful. It is correct that the inspector had "some concerns" over the validity of the use of the Brynhyfryd data. But it is not correct to assert, as the Claimant does, that that formed the basis of the inspector's chain of reasoning or that the reasoning resulted from matters that were not in issue at the inquiry and upon which the Claimant had no opportunity to comment.
56. Rather, it is clear that the effect of dust on the residents, particularly those at Swn yr Afon and Crown Road, was an issue at the inquiry on which evidence was received. The Claimant set out its case on dust in detail (see paragraphs 8.55 to 8.84 of the inspector's report) including its contentions on the data in relation to dust at Swn yr Afon and Crown Road. The Council's case was that dust was a problem. There were shortcomings in the use of the deposit gauges at Brynhyfryd. In particular, the monthly averages did not pick up short term episodes of high dust concentrations and the monthly average limits had been exceeded on particular occasions. There had been episodes of noticeable spoiling of surfaces at properties within 300 metres of the existing site for short periods.
57. The Councils contended that it was inevitable that "short term episodes of high dust deposition will affect residents in the communities near to the proposed development particularly in Swn yr Afon, Crown Road and Haulfryn. It is not reasonable to expect residents to continue to experience future problems". Individual objectors gave evidence to the inquiry about the effect of dust. Those individuals included Mr James who had lived at the nearest house to the proposal on the Kenfig Hill side since 1989 and who complained about dust, and Mrs Ball, who lives in Swn yr Afon, who gave evidence about high levels of dust.
58. In the light of that evidence, the inspector accepted that there was significant staining to residential properties in Swn yr Afon and lower Crown Road. He noted at paragraph 14.74 that they were affected by adverse wind conditions on vulnerable dry days. He analysed the data. They showed that the recommended limit of dust had been exceeded on occasions at Swn yr Afon and lower Crown Road (and given the shortcomings in deposit gauges, which worked on monthly averages and may not capture short term episodes, the problem could be worse than reported). He considered that the deposition and soiling which he had seen and which had been recorded would mean that "the living conditions for the residents of Swn yr Afon and lower Crown Road would be unacceptable in relation to dust nuisance". That was a matter of judgement for the inspector.
59. Further the inspector viewed the staining at properties himself and was able to come to a conclusion on his observations.
60. Mr Clive Lewis QC concedes that the issue of the coal percentage in the dust at Bryhyfryd itself was not a point which the Claimant should necessarily have addressed at the inquiry. But he submits that this point was incidental to the inspector's conclusion and not critical to his line of reasoning. The problem of dust in Swn yr Afon and Crown Road was very much on the agenda from the outset of the inquiry and there was no agreement by the Councils or by the residents with respect to this problem.
61. Similarly the use of the Claimant's concession that their dust management plan would not reduce deposits below 80mg/m²/day, which the Claimant contends was unfair, was not the issue. The key question was not to do with Brynhyfryd. It was to do with the evidence of coal dust at Crown Road and Swn yr Afon.

Balance.

The Claimant's Submissions.

62. The Claimant submits that the inspector failed to set out benefits of the proposal as a distinct element of the balancing exercise. In his conclusions at paragraph 14.4 he lists what he considers to be the main considerations. They are in summary the effect of the proposal on the character and appearance of the appeal site and surrounding area; whether the proposal would have a harmful effect on public enjoyment of the countryside, and the effect of the proposal on the living conditions of residents of the locality and in particular of the settlement of Kenfig Hill. At no point does he specify any of the benefits of the proposal which the Claimant put forward. He referred merely to "Other Matters" (at paragraph 14.106 and following paragraphs) which included benefits but also some aspects which are not benefits.
63. In its written submissions the Claimant makes the following specific complaints (although in oral argument Mr Rhodri Price Lewis QC concentrated upon the need for the coal and ecology).

i. The inspector misreported the evidence relating to the importance of the coals available at the site for supporting other coalfield output.

ii. He dismissed claimed benefits to the UK economy and costs to local employers as a commercial judgement of industry rather than legitimate planning considerations.

iii. He dismissed unlawfully aspects of the benefits of blending coal as matters which were not planning considerations.

iv. Wrongly and without evidence he assumed that other sites with coal of similar volatility could come on stream in the same time as the appeal site.

v. He dismissed as irrelevant the benefits of energy supply and employment.

64. In amplification of these complaints Mr Rhodri Price Lewis makes the following submissions. The inspector failed to take account as a benefit of the proposal that no other supplies of coal of such high volatility as that at the site were available for blending with other South Wales coals. He regarded that as relevant to a commercial issue whereas, the Claimant submits, it is a planning consideration and is relevant to optimising the use of the other coals. When referring to planning policy at paragraphs 7.2 to 7.4 of his report the inspector acknowledges that a balance must be struck between the need to ensure a prudent use of finite resources and the protection of existing amenity and the environment in accordance with MPPW. He acknowledges the use of the coal for blending with coals from other South Wales coalfields to produce coal suitable for the nearby Aberthaw power station. However he fails to record that the coal is of vital support to these other coalfields as stated by witnesses, Mr Hughes and Mr Watkin, experienced in the coal industry in Wales, who gave evidence with respect to the importance of the coal for other areas and for employment but he does not put it into the balance. The Claimant assumes that the inspector is saying that the use of the coal for blending is not a matter for him because it is not a material planning consideration. But the Claimant submits that it is a relevant planning consideration that other coalfields rely on it. MPPW at paragraph 55 notes that it is important to ensure that minerals are not wasted but are used efficiently. So, submits the Claimant, this is a planning consideration, and although weight is a matter for the inspector, what is a planning consideration is a question of law. The inspector fell into error by failing properly to put these matters in the balance.
65. The Claimant further submits that the inspector failed fairly to balance the benefits of previous coal workings in the area with the disadvantages arising therefrom. He failed to have regard to the fact that this proposal was for the extension of an existing site which is preferable to the excavation of a "greenfield" site. The Claimant refers to paragraph 41 of MPPW which reads:

"Extensions to existing mineral workings are often generally more acceptable than new greenfield sites. However, such a policy should not rule out the possibility of new workings where these may be environmentally more acceptable or where existing workings are unsuitably located, and should not be designed to protect existing suppliers or constrain competition."

66. The Claimant submits that although the inspector addressed that point he did not carry out the necessary balancing exercise. What he said (at paragraph 14.13 of his report) is:

"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, those benefits would not outweigh the harm identified below."

67. The Claimant further submits that the inspector failed to report the agreed position that the proposal would bring overall ecological benefits and that he failed to have regard to agreed ecological benefits. The Claimant contends that at paragraph 14.116 of his report the inspector's approach is characterised by the language of apparent disappointment that he could not recommend refusal on ecology grounds. At that paragraph the inspector says, having summarised the evidence:

"In view of all of the above points, I can see no reason to disagree with the positions of the Councils and the statutory consultees on the absence of any unacceptable ecological harm resulting from the proposal. I therefore cannot recommend dismissal on this ground."

He addresses ecology only in terms of absence and avoidance of harm whereas the Claimant's case was that there would be tangible benefits from restoration. He fails to put that benefit into the balance at all.

The Defendants' Submissions

68. The Defendants submit that the inspector accepted that there were benefits which flowed from the proposal. He said that it would "provide much needed jobs and secure others" and would contribute to the country's need for coal (see paragraph. 14.109)
69. However, the inspector's view was that those benefits would not outweigh the harm that he found that the proposal would cause. That, submit the Defendants, is a lawful assessment of the benefits of the proposal against its disadvantages. The Welsh Ministers, who might have taken a different view on the information available to them if they so wished, agreed.
70. The inspector was under no requirement to use the word "benefits" when discussing such matters. No one could have failed to realise not only that the inspector considered that there were benefits, but also what they were.
71. With respect to the specific complaints made in writing by the Claimant, Mr Clive Lewis QC relies upon his written submissions in reply. In summary they are as follows.

i. There was no misreporting of the evidence of the importance of the coals available;

ii. The inspector did not dismiss the benefits to the UK economy and local employers as a "commercial judgement of industry" as alleged. Rather the inspector acknowledged these benefits, but considered that they did not outweigh the harm he found that the proposal would cause. The inspector refers to commercial judgement in paragraph 14.111 of the report where he is dealing with the claim that the coal from the proposal may attract a favourable price. The inspector said that that was "a short term consideration and dependent on many factors well outside the scope of the proposal." He went on: "It is not the function of the planning system to seek to regulate the commercial judgement of industry. I thus give this aspect limited weight in my recommendations."

iii. The inspector did not unlawfully dismiss the benefits of blending as other than a planning consideration. Rather he acknowledged the function that coal from the proposal would perform in relation to blending but considered, for the reasons given, that this factor added only moderate weight in support of allowing the appeals. Weight is for the inspector.

iv. The inspector did not erroneously assume without evidence that other sites with coals of similar qualities could come on stream; rather he referred to the evidence of the Claimant that there had been recent investment for the expansion of UK coal production and came to the view that other supplies could become available.

v. The inspector did not dismiss as irrelevant the benefits from energy supply and employment: he accepted there were benefits but considered that they did not outweigh the harm from the proposal.

vi. The inspector did not fail fairly to balance the benefits of previous coal workings; he acknowledged the benefits that an extension to an existing site provided. However, he considered that the extension was not minor and the benefits had to be weighed carefully against the impact and cumulative harm. He concluded that the benefits did not outweigh the harm.

72. Supplementing the above in his oral submissions Mr Clive Lewis QC drew attention to paragraphs 14.107 to 14.112 of the inspectors report. In those paragraphs the inspector acknowledges the function that the coal from the proposal would perform in the blending of other South Wales coals for the Aberthaw power station and concludes that this adds moderate weight in support of allowing the appeals. He acknowledges that the proposal would provide much needed jobs and secure others. To this he has given significant weight. He refers to energy supply security and self-sufficiency to which he gives moderate weight.
73. It is when dealing with the specific point of coal price that he refers to commercial judgement. Nevertheless he did not ignore it. He gave it limited weight.
74. Having referred to these matters he concludes by saying that they do not outweigh the harm which he finds.
75. The inspector did deal fairly with the question of ecology. He set out the agreed facts in relation to ecology and the agreed position on the proposed restoration plan. However, an objector for the Woodland Trust did object to the proposal on ecological grounds. In his conclusions, the inspector gave great weight to the views of the parties and the statutory consultees; he considered the arguments of the objector but he agreed with the Councils and the statutory consultees and concluded that, contrary to the case put by the objector, there was no reason to disagree with the Councils and the consultees on their view that there would be no unacceptable ecological harm. Consequently, there was no basis for recommending dismissal on this ground. It is not accurate to say that his report is characterised "by the language of apparent disappointment that he could not recommend refusal on ecological grounds". It would be more accurate to state that the inspector's report is characterised by a careful consideration of the objection put on ecological grounds, but a dismissal of that objection because he agreed, after careful examination, with the contrary position.

The Court's Approach.

76. There is no dispute about the legal principles which should govern my approach to this application. Section 288 of the Town and Country Planning Act 1990 provides

If any person

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order; or

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

(5) On any application under this section the High Court

(a)......

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.

77. The court's approach is set out in the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment(1981) 42 P&CR 26. In summary, and so far as relevant to this application, it is to review the decision of the Welsh Ministers to ensure that, in taking the decision to accept the inspector's decision and reasons, they complied with the following principles: they must not have acted perversely; must not have taken into account irrelevant material or failed to take into account relevant material; must have complied with statutory procedures, and must not have departed from the principles of natural justice. In practice in this case that will involve a review of the inspector's reasons and conclusion.
78. In applying those principles the relevant material is usually the inspector's report and the decision letter. Forbes J in Seddon said that in approaching its task "it is no part of the duty of the court to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute":
79. In Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council (1993) 66 P & C.R. 263 at pp. 271-272 Bingham LJ said that the issue is whether the decision leaves room "for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication".
80. In De Rothschild v Secretary of State for Transport [1988] JPL 173 at p. 176 Slade LJ said that it is not right to "analyse and pick to pieces each sentence of the Secretary of State's letter as if each sentence were a sub-subsection in a taxing statute. To accept the appellant's submission would, involve, an altogether too analytical - indeed perverse - construction of the language by which the Secretary of State had expressed himself, when his letter was read as a whole"
81. Hoffman LJ in South Somerset District Council v Secretary of State for the Environment [1993] 1 P.L.R 80 said that the inspector is not "writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the inspector's reasoning":
82. In R (Sagar House (Chelsea) Ltd) v First Secretary of State and the Royal Borough of Kensington and Chelsea [2005] EWHC Admin. 1251 at paragraph 76 Sir Michael Harrison, referring to the judgment of Sullivan J in Newsmith Stainless Ltd v Secretary of State for the Environment [2001] EWHC Admin 74, said that "an application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision and that the court must be astute to ensure that such challenges are not used as a cloak for a re-run of the arguments on the planning merits":
83. The weight to be attached to a consideration is a matter of planning judgment for the Welsh Ministers: see Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 per Lord Keith at 764F-H and Lord Hoffman at 780F-H.

Discussion.

MTAN 2.

84. It is common ground that the inspector was entitled to have regard to MTAN 2 in coming to his decision. The issue is with respect to the way in which he was permitted to use it. Paragraph 2 of MTAN 2 states that it will usually be material to decisions on individual planning applications and will be taken into account by the Welsh Ministers and by planning inspectors in the determination of appeals. That paragraph does not seek to draw a distinction in the way in which MTAN 2 will be taken into account by reference to those parts of it which relate to the preparation of a development plan and those parts which relate to best practice in the mining industry.
85. Mr Rhodri Price Lewis submits that the part relating to the preparation of a development plan may be taken into account by the inspector only in this way: that the inspector might take into account that when the Councils were next preparing their development plan they in turn were instructed to take account of the advice in favour of a 500 metre zone. But I have difficulty in seeing how that might assist an inspector to come to a decision unless it means that he is entitled to take account of the possibility that a development plan containing a narrower zone (or no zone at all) is likely to be amended.
86. I accept that MTAN 2 does not in terms say that the 500 metre zone referred to in its paragraphs 29 and 32 should override or supersede any narrower (or wider) zone referred to in a development plan which pre-dates MTAN 2. I accept that MTAN 2 does in paragraph 3 expressly refer to previous advice which it does supersede. But I do not accept that this is a case where the fact that some matters are expressly superseded means that others, not referred to, are implicitly unassailable.
87. I accept Mr Clive Lewis's submission that the Welsh Assembly Government in MTAN2 was expressing the view that 500 metres generally strikes the correct balance between protecting the amenity of local persons and the need for coal. It is to that that an inspector is entitled to have regard when considering an appeal. Accordingly I am not persuaded that the inspector fell into error in his interpretation or application of MTAN 2. He has not misinterpreted words within MTAN 2 nor has he failed to give reasons for the way in which he has taken it into account.

Landscape.

88. I accept that when considering landscape matters the inspector had evidence from the Claimant and the Councils in their landscape impact assessment, but he also had evidence from objectors and his own observation at site visits. I further accept that he explained that the assessment he was going to make was his own: see paragraph 14.24 set out above. The inspector's own assessment coincided with the Councils' landscape impact assessment save for the area of Pyle. Two questions arise. The first is whether the inspector was entitled to form his own view on landscape impact. The second is: what was the consequence of his assessment on his decision?
89. This is not a case where it can sensibly be said that landscape impact was an agreed matter. The evidence of the independent objectors had to be taken into account. Further the inspector was entitled to take account of his own observations. There was no prejudice to the Claimant therefore in the inspector's coming to his own assessment. He was bound to do so as they ought to have appreciated from the outset of the inquiry.
90. But even if I had been persuaded that the inspector should have alerted the Claimant to his provisional assessment with respect to the Pyle area, and, after listening to further submissions, would have concluded that the impact in that area was properly characterised as "low adverse" instead of "moderate adverse", I accept Mr Clive Lewis's submission that the decision would have been the same.
91. Therefore the application fails on this ground also.

Dust.

92. I accept that in concluding that the data from the Brynhyfryd gauge were not necessarily a reliable indication of background dust and in inferring (as I assume he did) that the coal fraction in the deposits at that gauge was at least in part attributable to the stock-piles on the existing site, the inspector came to conclusions which had not been raised for the Claimant's expert witness Mr King to deal with. I further accept that that witness would have raised issues about the origins of that coal dust and put forward different explanations which might have led the inspector to come to a different conclusion.
93. However to determine whether those findings mean that the inspector's decision cannot stand involves an evaluation of the importance of the point and the consequences.
94. Mr Clive Lewis points out that the finding on dust was an additional reason for the inspector's dismissal of the Neath Port Talbot appeal only. He submits that if the inspector (1) had heard Mr King's possible explanations for the coal fraction and (2) had accepted that evidence and (3) had concluded that the Brynhyfryd data were reliable evidence of background dust deposits and (4) had gone on to reject the concerns of the Councils and of the residents of Kenfig Hill and Swn yr Afon who had given evidence of dust nuisance, he would nevertheless have dismissed the Neath Port Talbot appeal for the same reasons as he dismissed the Bridgend appeal, namely, the landscape impact, the visual impact and the countryside impact. I accept that submission. For that reason the inspector's decision should not be set aside on this ground.
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 as Mr Rhodri Price Lewis contends. In other words, the inspector would not have gone from step (3) to step (4) above. For that reason too the inspector's decision should not be set aside on this ground.

Balance.

96. It is important to distinguish between criticisms of the form of the inspector's report and of its substance. The way in which an inspector sets out his report is very much a matter of personal style. I accept that what a court must do is to stand back and having regard to the report in its entirety ask whether it makes plain what the inspector decided and why he decided it. An inspector might set out a list of every consideration which he regards as a relevant benefit or harm and state what weight he gives to each. But he might not. Insofar as the inspector is criticised for including matters which the Claimant contends to be benefits in that part of his report headed "Other Matters", that is essentially a criticism of style. What is important is to ascertain whether the inspector properly carried out the balancing exercise.
97. The benefits of the proposal relate principally to the exploitation of the coal resource and the economic advantages for the local community. They are conveniently set out in the Claimant's skeleton argument and Details of Claim. Each of those benefits was acknowledged by the inspector as a benefit, taken into account and given such weight as he thought proper in paragraphs 14.106 to 14.112 of his report.
98. The inspector dealt with ecology at paragraphs 14.113 to 14.116. In essence he rejected the concerns of a single witness about dust at a woodland area close to the site and accepted the evidence of the main parties and statutory consultees. He found that there was no basis with respect to the ecology to recommend dismissal of the appeals.
99. The Claimant submits that the inspector failed to mention benefits for biodiversity associated with restoration. But the inspector had set out those benefits in detail at paragraph 8.107 of his report and recorded at paragraph 8.108 that both Councils had agreed that biodiversity was not an issue that would prevent his allowing the appeals. It cannot be said that he was unaware of or had overlooked these benefits. In the context of his conclusions at paragraph 14.113, which begin by recording that there is no issue between the main parties, it is not surprising that he does not repeat those benefits, nor was it necessary for him to do so.
100. On this ground too therefore the application must fail.

Conclusion.

101. For the reasons given this application must be dismissed.