Background
In December 1954 planning permission was granted for the “continued working” of High Close Quarry, Plumbland, Cumbria. The permission divided the site into two zones: the “Green Land,” covering the pre-existing quarry void and surrounding worked area, and the “Blue Land” to the north and south, where quarrying was approved only in principle subject to the submission and approval of full operational details under Condition 2. Quarrying within the Green Land ceased around 1956, and no application was ever made to discharge Condition 2 for the Blue Land. In 1976 a separate landfill permission was granted over the Green Land; by 1990 the quarry void had been completely infilled and the land restored to agriculture, leaving no quarry void, no quarry floor, and no surface indication of prior workings.
In August 2019 the Claimant, as site owner, applied under paragraph 9 of Schedule 13 of the Environment Act 1995 (the ROMP regime) for a determination of replacement conditions on the 1954 permission. The ROMP regime requires old minerals permissions to be brought up to modern environmental standards, but it applies only to “relevant planning permissions” relating to a “mineral site.” Cumberland Council (as successor Minerals Planning Authority) failed to determine the application, and the Claimant appealed to the Secretary of State. An Inspector conducted a written-submissions inquiry and issued a Decision Letter on 16 June 2025.
The Inspector concluded that the 1954 permission could not be treated as a “relevant planning permission” in respect of either part of the site, and therefore no ROMP review could proceed. As to the Green Land, the complete infilling of the quarry void made it physically impossible to comply with Conditions 4 and 6 (prohibiting tipping outside the excavated area and requiring fixed plant to be sited on the quarry floor respectively). As to the Blue Land, the permission had only ever authorised quarrying in principle; since Condition 2 had never been discharged, minerals development there had never been specifically authorised, following the reasoning of the Inner House of the Court of Session in LaFarge Aggregates Ltd v Scottish Ministers 2004 SC 524. The Claimant challenged both conclusions by way of statutory review.
The Court’s Holding
Mrs Justice Lieven dismissed all grounds of challenge. On Ground 1(i)—the contention that the Inspector acted irrationally in finding Conditions 4 and 6 could not be complied with—the court refused to permit the argument to be advanced. The Claimant had adduced two new witness statements explaining how the quarry could theoretically be worked using mobile plant without tipping on site, but this factual case had never been put to the Inspector. Applying the principles in Barker Mills Estates v Test Valley BC [2017] PTSR 408, the court held that the MPA had squarely raised the non-compliance point in its written submissions, the Claimant had offered no evidence in answer, and allowing the new evidence now would require factual findings that the Inspector never had the opportunity to make. The court added, for completeness, that the Inspector’s conclusion was not obviously irrational given the absence of any contrary evidence before him.
On Ground 1(ii)—that the Inspector should have applied the Hart Aggregates test (whether the relevant condition “goes to the heart” of the permission) rather than the Pilkington “physical impossibility” test—the court permitted the pure law point but rejected it on the merits. The court traced the authorities from Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 through Pioneer Aggregates v SSE [1985] AC 132 and Staffordshire CC v NGR Land Development [2002] EWCA Civ 856, confirming that the Pilkington principle applies where implementation of the first permission would be impossible in accordance with its own terms—including its conditions—as a result of works carried out under a later permission. The complete infilling of the quarry void fell squarely within this principle. The court also upheld the Inspector’s handling of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30 and rejected Ground 1(iii), which had argued that the ROMP power to impose substitute conditions could cure the impossibility: that power arises only once a valid ROMP application has been established, and cannot be invoked to breathe life into a permission that has already ceased to be a “relevant planning permission.”
On Ground 2, the court upheld the Inspector’s reliance on LaFarge for the Blue Land. A planning permission that approves only the principle of minerals development, leaving specific authorisation conditional on subsequent discharge of details, does not constitute a “relevant planning permission” as to the undischarged areas. The court further held that the Supreme Court’s decision in G Hamilton (Tullochgribban Mines) Ltd v Highland Council [2012] UKSC 31 did not assist the Claimant: inclusion of a site on the MPA’s First List is an administrative step and does not in itself determine whether a particular permission retains the status of a “relevant planning permission” for ROMP purposes.
Key Takeaways
- A minerals planning permission ceases to be a “relevant planning permission” capable of ROMP review where subsequent operations under a later permission have made it physically impossible to comply with the existing conditions—even where the impossibility stems from breach of conditions rather than sheer physical incapacity to carry out the permitted works.
- An “in-principle” minerals permission subject to an undischarged pre-commencement condition does not authorise minerals development over the affected land and therefore falls outside the ROMP regime for that land; the Inspector (and the court) followed the Inner House’s reasoning in LaFarge as strongly persuasive in the English context.
- Placement of a site on the MPA’s First List under Schedule 13 of the Environment Act 1995 does not conclusively establish that every permission listed is a “relevant planning permission”; the MPA and Inspector retain jurisdiction to scrutinise the continuing validity and authorising effect of the permission at the paragraph 9 application stage.
- New factual arguments not raised before a planning inspector will not readily be permitted in a statutory review challenge where the opposing party had squarely put the issue in issue and evidence would have been needed to answer it.
Why It Matters
This decision provides important guidance on the outer boundaries of the ROMP regime. It confirms that the process for modernising environmental conditions on old minerals permissions cannot be used to revive permissions that have, in practical reality, ceased to have operational force—whether because subsequent land-use changes have rendered compliance with existing conditions impossible, or because a conditional authorisation in principle was never converted into a full permission through discharge of the requisite details. Operators and minerals planning authorities now have clearer authority that the “relevant planning permission” gateway in Schedule 13 requires a living, workable permission, not merely a historical grant that survives on paper.
The judgment also reinforces the procedural discipline expected of appellants in planning statutory reviews: points that turn on matters of fact must be raised at the inquiry stage, and courts will be slow to entertain fresh evidence that could and should have been adduced before the Inspector. For minerals owners seeking ROMP reviews of old quarrying permissions on partly infilled or environmentally altered sites, early and careful assessment of whether the original conditions remain capable of compliance is now essential before committing to the application process.