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Council defeats challenge over decision not to take enforcement action at quarry

Cornwall Council has successfully defended a High Court challenge to its decision not to take enforcement action in respect of unauthorised development at a quarry in the Cornwall Area of Outstanding Natural Beauty.

Shire Oak Quarries (SOQ) had in 2014, as a prospective purchaser of the site, made an application for permission for development ancillary to the operation of the quarry at Dean Point in the Lizard section of the AONB, including the erection of a fence around part of its perimeter.

Cornwall granted permission in April 2015; but that decision was successfully challenged in the High Court, and the decision was quashed.

However, in the meantime, SOQ purchased the site, and erected a fence around part of the perimeter. Following the successful judicial review, it had no permission to erect the fence, which consequently became unauthorised development.

On 29 September 2016 Cornwall decided not to take enforcement action in respect of this unauthorised development. That decision was made by an Enforcement Planning Group Leader of the council's Planning and Enterprise Service, to whom the relevant power had been delegated by the council.

Opponents to re-opening of the quarry sought to challenge the group leader’s decision.

However, in Community Against Dean & Anor, R (on the application of) v Shire Oak Quarries Ltd [2017] EWHC 74 (Admin) Mr Justice Hickinbottom concluded that the claim was unarguable and he refused permission to proceed with judicial review.

The judge said: “…the Council cannot be criticised for deciding not to take immediate further enforcement action in respect of the fence, in circumstances in which, at present, there is no evidence that it will have any adverse effects on bats, or any other habitat or species.  Certainly, the Council cannot be acting unlawfully in making such a decision.”

He added: “In my judgment, the decision not to take enforcement action then (and, so far as a continuing breach is alleged, since), but rather to wait until an application for retrospective planning permission were made, was a lawful and legitimate exercise of its discretion under section 172 of the [Town and Country Planning Act 1990]; and fully consistent with both principle and relevant guidance. Indeed, I consider the contrary to be unarguable.”

Cornwall Council welcomed the ruling. It said: “The council’s development and enforcement officers have worked very hard to ensure that all relevant factors have been properly considered including environmental and habitats issues. 

“The decision confirms that the council was not obliged to take further enforcement action, that the council had the environmental impact of the fence and the potential impact on bats in mind at all material times, and that it was correct to find that the impact of the fence on bats was, at most, minor. 

“As the council reiterated on many occasions, it never said that it will not take enforcement action about the fence, it has only decided that it would take no further enforcement action at this stage pending the submission of a new application for planning permission in respect of the fence and it has reserved its right to take further action in the future.”

SOQ has now submitted a new application. Cornwall said this would “provide a better opportunity for environmental and habitats issues to be considered and addressed and for consultation to take place”. It added that it would also allow it to control the impact of the fence if permission is granted.

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