Mines and Minerals Rights Relating to HG2-124 and BL1-40

Leeds Revised Submission Site Allocation Plan (SAP)

Matter 7, Agenda Item 4 – Mines and Minerals Rights relating to HG2-124 and BL1-40

Position Statement between: (1) BDW Homes and Taylor Wimpey ("BDW/TW") (2) Mr Christopher Makin (3) Leeds City Council ("LCC")

Introduction

1 At the close of the Examination in Public Hearing (EiP) held on 2 August 2018, the Inspectors' requested the relevant parties (as noted above) to provide a Position Statement, setting out any areas of agreement and disagreement regarding the issue of mines and minerals rights relating to HG2-124 and/or BL1-40 (together the "Site").

2 This Position Statement has been prepared and submitted in response to the Inspectors' request. It sets out the factual and legal background to the land ownership of the relevant sites (so far as it is relevant to the issue of mines and minerals) and addresses Mr Makin's stated ownership of the mines and minerals.

3 Copies of the relevant title registers and plans as well as the Conveyance dated 30 August 1938 made between (1) Alvary Douglas Frederick Gascoigne and (2) Walter Dawson (the "1938 Conveyance") were provided to the Inspectors at the close of the EiP.

Land Ownership of HG2-124 and BL1-40 – Agreed Facts

4 Under Title number WYK586916, Mrs Jean Makin, is registered with an absolute freehold title to the land known as land on the north side of Selby Road, Micklefield (the "Property") and which comprises part of HG2-124 and all of BL1-40. Entry Number 2 of the Property Register confirms that there is an express exception of mines and minerals together with the ancillary powers of working.

5 Such mines and minerals excepted under the Property and land to the north known as Sturton Grange Farm and other land to the north of Ridge Road are owned by Mr Christopher William Makin ("Mr Makin"). He is registered with only a qualified freehold title under title number YY1303 and has been the registered proprietor since 23 February 2012, when he purchased the interest for the very modest sum of £100. The reference to "qualified" in this context means that his title does not prejudice or affect the enforcement of any right title or interest existing in the mines and minerals before 11 December 2007 1.

6 The root of Mr Makin's title is the 1938 Conveyance. BDW/TW produced a copy of the 1938 Conveyance at the EiP. The 1938 Conveyance is not referred to on either title YY1303 nor WYK586196. Part of the copy 1938 Conveyance is illegible but the relevant mines and minerals reservation can be read and a transcript of the reservation was provided to the Inspectors and which is repeated below for ease of reference :-

"There be reserved unto the Vendor and his assigns the mines, minerals and mineral substances below the surface within and under the property hereby conveyed together with all such powers, rights and easements for searching for winning working getting carrying away the same and adjoining mines and minerals worked in connection therewith by underground workings only as he or they may consider necessary or proper including power to let down the surface whether built upon or not, proper compensation to be paid to the purchaser or other the owner or owners for the time being of the property hereby conveyed for all damage caused by subsidence to any buildings now erected thereon by reason of the exercise of the powers and rights reserved as aforesaid with power also to carry and convey through and under the property hereby conveyed all mines and minerals bought from the adjoining or neighbouring land belonging to the vendor or other persons." (emphasis added)

Case Summaries

7 In summary, the parties' cases are as follows:

BDW/TW's POSITION

Due Diligence

7.1 BDW/TW, are both large national housebuilders, and have been fully cognisant of the claims made by Mr Makin from the outset and have continued to promote this site for development on the basis that Mr Makin's claims do not affect deliverability of the Site.

7.2 Significant due diligence has been carried out by BDW/TW, including:

7.2.1 site investigations by Groundtech Consulting Limited including borehole testing across the site to establish the type, extent and depth of any minerals. A copy of the borehole test results is attached;

7.2.2 seeking advice from a leading expert (Mr Geoff Marsden of David

1 See entry number 1 of the Proprietorship Register of Title Number YY1303 2

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Walker Limited) in mines and minerals to advise on matters, including the history of the Site, its geological make up and the viability of mineral extraction. A copy of Mr Marsden's CV is attached;

7.2.3 seeking advice from leading Counsel (Mr Michael Driscoll QC of Maitland Chambers) and obtaining a written Opinion, a copy of which is attached together with Mr Driscoll's CV.

As a result of the thorough due diligence carried out, BDW/TW have received advice that whatever rights Mr Makin may enjoy, they do not and cannot in any way affect the deliverability of the Site.

7.3 Unfortunately the same cannot be said of Mr Makin's due diligence which is anything but thorough. Despite his stated ambition to mine the Site, it was readily apparent at the EiP and in the drawing up of this statement that Mr Makin has not carried out even the most basic due diligence.

7.4 In particular Mr Makin is not even able to confirm the legal basis upon which he claims ownership of any mines and minerals. Remarkably he is questioning the validity of the very document (i.e. the 1938 Conveyance) that severed the mines and minerals from the surface title. Despite his questioning the validity of that document he does not advance any alternative positive case regarding ownership and instead can only refer to fact that there might be other unspecified documents. This is a very unsatisfactory state of affairs.

7.5 This has meant it is BDW/TW that has had to explain the legal position to Mr Makin and indeed it is now clear that until 2 August 2018, Mr Makin and his professional team were completely unaware of the 1938 Conveyance, had given no thought at all to the legal basis of ownership and carried out no title investigation whatsoever.

7.6 This creates the distinct impression that Mr Makin has no genuine intention to seek to extract the minerals. Instead he is seeking to frustrate this process for his own collateral advantage, in order to seek to increase the possibility that land adjacent to the Site in his ownership can be allocated for future development at the expense of the Site.

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The 1938 Act Conveyance

7.7 It is worth spending a little time examining the 1938 Conveyance and explaining why the rights reserved out of the 1938 Conveyance do not impact upon deliverability.

7.8 Until 1938, the land and underlying minerals comprising the Property were in the ownership of the Gascoigne Family of Parlington Hall. However, on 30 August 1938 the Property was acquired by Mr Walter Dawson, subject to a minerals reservation in favour of the Gascoigne Family but which was restricted to underground workings only. Mr Dawson is the predecessor in title to Mrs Jean Makin. Alternative opportunities are also being considered. The fact that Mr Makin has not applied for planning permission to-date nor engaged in any pre application discussions is only indicative of the fact that the time is not yet right for him to work the minerals.

7.9 Insofar as the minerals were concerned, from the documents available, HJ Banks & Company Limited ("HJ Banks") were the successors in title to the Gascoigne family and, on 31 October 1996, acquired "such right title and interest (if any) in the minerals (other than those vested in others by statute or otherwise)" and paid the sum of £10,000.

7.10 On 20 February 2012 Mr Makin purchased the mines and minerals title from HJ Banks for the sum of £100. HJ Banks is a sophisticated real estate development company that specialises in minerals and it is worth noting that they sold any title or rights that they had for only a nominal sum. This is indicative of the fact that the there is no commercial value in the minerals reservation for the reasons explained in this statement. It is highly unlikely that HJ Banks would dispose of their interest (if any) to the minerals for such a nominal sum if there was any significant value attached and indeed the only value is nuisance value..

7.11 Mr Makin's title is derived from the 1938 Conveyance because, as stated above, it was at that time the mines and minerals in the Property were severed from the surface owner's title. Any rights that Mr Makin may have are limited to the terms of the 1938 Conveyance and when construing what rights Mr Makin may enjoy, this exercise must be carried out by reference to the circumstances that existed at the time of the 1938 Conveyance. There is no other document that severs ownership of the mines and mineral from the land and Mr Makin would know this if he had carried out the appropriate title investigation. 4

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7.12 The 1938 Conveyance contains an express limitation on Mr Makin's ownership of the mines and minerals underlying the Site. He only owns those mines and minerals which can be exploited by underground workings only (i.e. by mining rather than quarrying) 2.

7.13 Mr Makin claims that the proposed development of the site will give rise to a trespass so far as the minerals which he claims he owns are concerned and which he could restrain by obtaining an injunction or claiming damages and thereby affecting deliverability of the site. Mr Makin's claims are limited to Magnesian Limestone and Basal Permian Sand 3 which are present under the site.

7.14 In order to assess the strength of Mr Makin's allegations, BDW/TW have taken steps to obtain expert advice from Mr Geoff Marsden of David Walker Limited who is a leading expert surveyor and Fellow of the Minerals Division of the RICS and has been practising as a surveyor for 50 years. Mr Marsden has also been involved in cases before the Court of Appeal regarding minerals reservations and the limitations imposed where the reservation restricts the extraction of minerals to underground workings only.

7.15 Furthermore, BDW/TW have obtained a written Opinion from Mr Michael Driscoll QC of Maitland Chambers who is one of, if not the, leading Counsel in relation to mines and minerals and is the Consultant Editor of Halsbury’s Laws of England (4th edition) Volume 31 (Mines Minerals and Quarries).

7.16 BDW/TW have taken these steps at not inconsiderable cost because they wish to ensure that the Site is deliverable and they have no desire to waste money on a site that is not deliverable or to waste the valuable time of the Inspectors and/or Leeds City Council. In the interests of transparency, and in order to assist the Inspectors in their deliberations there is attached to this statement, a copy of the written Opinion from Mr Driscoll QC dated 30 July 2018. Whilst the Inspectors may want to read the whole document, the summary provided at paragraph 1 of his opinion is very succinct and to the point regarding all of Mr Makin's claims and states as follows:

3 It is noted that Mr Makin now claims ownership and a desire to exploit all mines and minerals under the site but in his hearing statement dated August 2017 for Matter 7: Selection of Sites for Development Outer South East, Mr Makin has only expressed an intention to work "dolomitic limestone" and "high quality sand" although no evidence has been adduced of his alleged "plans" in this regard.. 5

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"My advice, in summary is as follows. In my view a development on the surface of the Property, the foundations and drains for which extend below the surface, will not give rise to the commission of any tort so far as the minerals owned by Mr Makin is concerned, for it will not reach those minerals, nor will Mr Makin be entitled to bring any successful claim against the developer based upon his ownership of those minerals. Mr Makin does not own the limestone which lies immediately below the surface topsoil and clay, and the sand which he may own lies so far beneath the surface that it is not reached by a development."

7.17 Mr Driscoll's conclusion is that there is no question of Mr Makin being able to stop the development on legal grounds. Indeed any attempt by him to seek to remove the limestone will constitute a trespass as this mineral is owned by Jean Makin and not him for the following reasons summarised by Mr Driscoll in his Opinion:-

7.17.1 In 1938 Magnesian Limestone had always been quarried from the surface. It had never been extracted through underground mines. That is still true today. In this respect, a distinction has to be made between Magnesian Limestone and Carboniferous Limestone. Carboniferous limestone lies far deeper below the surface and is a more massively bedded mineral and is therefore more competent, and therefore capable of being mined. Only one example of mining Carboniferous Limestone, however, exists in the UK. These are the workings at Middleton Mine in Derbyshire where Carboniferous Limestone was extracted from galleries, each about 13-15 metres wide x 8 metres high, leaving pillars of undisturbed stone of about 17 metres x 17 metres. Middleton Mine is a unique example of limestone mining in the UK, a function of a specific set of geological circumstances that simply do not exist at the Property. Furthermore the high purity of the limestone at the Middleton Mine enabled processing for high value products for industrial and chemical applications. The Limestone existed at a far deeper level than the Magnesian Limestone does here.

7.17.2 As the parties to the 1938 Conveyance would have known, and in particular as Mr Gascoigne would have known, for his family was a large land owner locally, there had been a number of limestone quarries in the locality, some of which were still being worked in 1938 4. They included

4 There is no public record of any limestone mines within the locality of the Site. 6

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Peckfield Quarry, about 0.9 km east of the Property; Kirk Smeaton Quarry, about 11 km south-east of the Property; Darrington Quarries, about 8 km south-east of the Property; Tadcaster (Jackdaw Crag) Quarries, about 9 km north-east of the Property; and Newthorpe Quarry, about 3.5 km east of the Property. The parties would have known of, or expected the existence of, limestone under and near to the surface of the Property. The area was known as an area rich in coal and limestone. Had the parties intended to include Magnesian Limestone in the reservation they would not have excluded surface working, but they did exclude it, and by doing so, they must have intended to exclude Magnesian Limestone from the minerals reservation: see Ibstock above.

7.17.3 The Magnesian Limestone lies close to the surface: see the borehole survey. To have worked the limestone would have destroyed the surface and in doing so would have left a narrow band of air some 50 centimetres deep in the ownership of the land owner but completely unusable by him. The parties cannot have intended that a mineral so close to the surface should have been reserved to the minerals owner, if the only way of mining it would inevitably result in the destruction of the land owned by the landowner. The Purchaser in 1938 was described as a corn merchant; he no doubt bought the land as arable land; the obvious purpose of his purchase would be defeated by an extraction of the limestone beds which would have left him with no land in effect to farm. I refer here to the reasoning of the Judge in McLean Estates : see above.

7.17.4 There were, and in 1938 the parties would have expected there to have been minerals deeper below the surface which could have been worked by underground workings, such as coal and related minerals, for example ironstone and fireclay, and also sand. The Property lies in an area where by 1938 there were a number of established coal mines, and several known coal seams. It is true that in 1938 coal was in the process of being nationalised (a process not completed until 1943 and 1946) but other minerals lying further down below the surface were not, such as ironstone, fireclay, and sand. Further, ownership of the coal would be expected to give rise to the payment of compensation on nationalisation, and therefore had a value to the minerals’ owner.

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7.17.5 It would have been impossible to mine (as opposed to quarry) Magnesian Limestone so close to the surface. The structure of Magnesian Limestone and its deposition ensure that the finely bedded stone would have and would be known to have had no structural competence to allow underground working. Quite how a mine could be opened without a surface entrance is unclear, but keeping a mine up and running as such without the roof collapsing and turning the mine into, in effect, a quarry is impossible to understand. Further, as the parties will have known, the beds of limestone immediately beneath the surface were not of the same consistency, were of different thicknesses, and were found at varying depths, and undulating levels, below the surface, making mining of them impractical and impossible.

7.17.6 The liability to pay compensation, under the minerals’ reservation, was limited to damage caused by subsidence to existing buildings, but if it had been intended to include the Magnesian Limestone in the minerals’ reservation, then working it would have destroyed the land itself, as the parties must have known, and yet they agreed to no form of compensation for this destruction, suggesting, as in McLean Estates : see above, that the Limestone was not, after all, intended to be owned by the minerals owner but by the land owner.

7.17.7 It made no sense for the parties to have included the Magnesian Limestone in the minerals reservation but then to have denied the minerals owner the ability to extract it. The idea that they would have seen it as some sort of stand-off, and to be the subject of some future negotiation makes no sense and would be rejected by a court as it was rejected in Ibstock.

7.18 Mr Makin entirely ignores the limitation of his ownership i.e. he does not own the limestone and his rights to underground workings only 5. At the EiP Hearing on 2 August 2018, Mr Makin's representative, Mrs Amanda Beresford, confirmed in express terms that it was Mr Makin's intention to works the minerals by way of quarrying and there was no mention of mining the minerals. This submission was made before it was pointed out to Mrs Beresford and the Inspectors that the working of minerals was limited to underground working only. Mr Makin does not

5 At the matter 7 session on 2 August 2018, Mr Makin's representative, Mrs Amanda Beresford, accepted that she did not know the precise wording of the mines and minerals reservation and/or that it was limited to underground workings only.

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own the limestone, there is no prospect of Mr Makin having the rights to quarry on the Site in any event as the surface of the site is within the ownership and control of Mrs Jean Makin and such consent will not be forthcoming. In addition, it is telling that the land is not allocated for any minerals development in the Adopted Natural Resources and Waste Local Plan (January 2013).

7.19 The suggestion that Mr Makin may wish to realise his rights is entirely speculative as he does not own the limestone, may well not own the Sand, but even if he does own the Sand there is no question of any trespass taking place given the depth at which it sits 6.

7.20 Furthermore, Mr Makin's suggestion that he would be entitled to damages is also speculative in that any such claim is wholly dependant on there being a trespass of minerals that he owns. For the same reasons that he would not be entitled to an injunction he would not be entitled to damages as there would be no trespass.

7.21 As such Mr Makin has no legal basis to stop the development and any claim he did bring would be hopeless.

Impediments to mineral extraction

7.22 From a practical and commercial perspective whilst Mr Makin says he may intend to mine the minerals there are significant legal and practical issues which mean any such commercial enterprise is unviable, would never receive bank funding and makes no financial sense. There is no possibility of Mr Makin recovering the minerals under modern day planning, environmental, economic and societal constraints and therefore the minerals would never be developed.

7.23 Mr Makin maintains that he acquired the mines and minerals in 2012 with a view to realising them for a commercial gain but has not taken any positive steps to progress his claimed intentions in the last 6.5 years. For example:

7.23.1 No planning application has been submitted for Mr Makin to work the minerals in any form; this is plainly indicative of there being no realistic prospect of the mines and minerals being worked in practice;

7.23.2 Not only has no planning application been submitted, but Mr Makin has not even taken the step of seeking pre-application advice from the

6 The borehole testing undertaken by BDW/TW at the site confirms that the sand sits at depths of 10.5m or below. The foundations and drainage for the proposed development are likely to extend between 1m and 5m below the surface. 9

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Council. This is entirely contrary to his submissions that he intends to work the mines. He has had since 2012 ample time to take such steps and has done nothing. This is again strongly indicative of there being no realistic prospect or genuine intention to work the mines and minerals in practice;

7.23.3 Paragraph 3.10 of the Natural Resources and Waste Local Plan is nothing more than an explanatory text. It is not a development plan policy and cannot be interpreted as such as a matter of law. It does not change the bare fact that the site is not allocated for any minerals development in the adopted statutory development plan. Mr Makin could have promoted his site through the NRWLP but, as far as BDW.TW are aware, he did not do so. This again is strongly indicative of there being no realistic prospect of the mines and minerals being worked in practice in any event.

7.23.4 Paragraph 3.10 of the NRWLP is no authority for the submission that, "Limestone and Basal Permian Sand mines in the area are becoming worked out and the minerals on this site will therefore become more valuable and necessary, particularly as a potential local sustainable source for the construction of HS2". No evidence has been submitted in support of this assertion and it cannot therefore be afforded any material weight. It might be that the Council can confirm where they think they are up to with their minerals reserves. It must be remembered that the NRWLP allocated sites to ensure sufficient minerals reserves up to at least 2026 – some 8 years from now. There is no evidence whatsoever that Mr Makin's site will be needed after or before 2026 to ensure the required supply of minerals within LCC.

7.24 These points highlight that there is no reasonable basis for the Inspectors concluding that the allocation of HG2-124 is not deliverable because of Mr Makin's claims to the minerals or the identification of BL1-40 in the SAP (the delivery of which is not before the Inspectors at this time). Based on the evidence available there is no reasonable prospect of Mr Makin applying for or obtaining planning permission to work the minerals in any event.

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Summary

7.25 Having regard to all of the relevant issues, the Inspectors' can be confident in concluding that the mines and minerals claimed by Mr Makin present no obstacle to the delivery and/or viability of the Site.

MR MAKIN'S POSITION

7.26 Chris Makin is a businessman and entrepreneur. He has created a number of successful businesses in the region. He purchased the mine and mineral rights at HG2-124 and BL1-40 on 20 February 2012 from H J Banks & Company Limited with a view to them being used as a commercial enterprise. The price he paid is irrelevant to any issues raised by this position statement.

7.27 Mr Makin purchased the title to the minerals with the intention of extracting the minerals from the land. Mr Makin acknowledges that in order to realise the financial value of the minerals it would require various permissions. However, he has experience of such a venture, for example, he provided limestone for the construction of the M1 extension. The fact that Mr Makin has not applied for planning permission to-date nor entered into pre-application discussions with the Local Planning Authority is because the time is not yet right to work the minerals and is not indicative of anything else.

7.28 Mr Makin intends to work the minerals when the time is right and is currently preparing plans which may lead to the supply of limestone for the construction of HS2, which is proposed to run adjacent to the northern boundary of Mr Makin’s land. The construction of HS2 will create a demand for limestone and sourcing it from the immediately adjacent site would be a sustainable way of obtaining it. Alternative ventures utilising the minerals at the Site are also being explored by Mr Makin.

7.29 Mr Makin’s intention to exercise his rights in relation to the mines and minerals is not speculative. They were purchased for this reason. Mr Makin has relevant previous experience and is making plans.

7.30 Mr Makin has engaged the services of Ruth Allington. Ms Allington has been acting for Mr Makin for some time. Ruth is a joint senior partner at GWP. She is a Chartered Geologist, European Geologist (Engineering Geology) and Chartered Engineer (Mining). She is a leading expert in mines and minerals. A

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copy of her CV and report on matters raised by BDW/TW is attached.

7.31 Mr Makin has also engaged the services of Leading Counsel, Jonathan Gaunt QC. Mr Gaunt QC was called in 1971 and has many years of experience advising on issues concerning mines and minerals and was Counsel in the Coleman v Ibstock Brick Ltd case. His opinion is attached. Mr Gaunt QC concludes that there is a strong case that Mr Makin is the owner of the Limestone below the Site.

7.32 Mr Makin and his family have owned the land comprised in title number WYK586916 and land to the north known as Sturton Grange Farm North since the 1950s and over many years have carried out numerous site investigations, both of a desk top and intrusive nature. These have been carried out by a number of different mines and minerals experts including Ms Allington. Mr Makin has also sought advice from a number of leading Counsel experienced in mines and minerals. As a consequence Mr Makin is confident both that there are minerals of value, that he owns them and that they can be worked. Further the existence of Magnesium Limestone and Basal Permian Sand at the Site is confirmed by Ms Allington in her report. The boreholes provided by BDW/TW also shows the existence of limestone extending from just beneath the surface to depth.

7.33 The 1938 Conveyance does not prevent Mr Makin from working the minerals for the following reasons:

7.33.1 The 1938 Conveyance is not referred to on either the title to Mrs Jean Makin’s land (HG2-124 and BL1-40) or Mr Makin’s title to the mines and minerals. Walker Morris, acting for BDW/TW produced the 1938 Conveyance at the EiP on 2 August 2018. They have not provided any explanation as to where the 1938 Conveyance was located and the copy provided is illegible in parts. For these reasons the 1938 Conveyance is not conclusively “the key document ”. When the mines and mineral title was purchased by H J Banks & Company Limited (who sold part of it to Mr Chris Makin) from a Gascoigne family trust (a local landowner) no title deeds were produced, hence the qualified registered title to the mines and minerals.

7.33.2 The 1938 Conveyance is not a document that was known to Mr Makin and the veracity of it will need to be interrogated. There may be other available documents relevant to the mines and mineral title that have, or can be, located. It is not known when or how BDW/TW obtained a copy 12

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of the 1938 Conveyance, or if they are aware of the existence of any other documents relating to the mines and minerals. For these reasons, no admission is made as to the authenticity or legal standing of the 1938 Conveyance.

7.33.3 However, if one assumes that the 1938 Conveyance is the relevant document relating to the minerals under HG2-124 and BL1-40 it does not prevent Mr Makin’s ownership or working of the minerals. The reasons are detailed in Mr Gaunt QC’s opinion together with Ms Allington’s report, however the reasons are summarised below:

7.33.4 The 1938 Conveyance has to be read in two parts. The first is the legal interest that is being reserved for the Vendor (and his assigns i.e. Mr Makin). The 1938 Conveyance is clear that the interest reserved to the Vendor is the legal estate in “…the mines, minerals and mineral substances below the surface within and under the property…” . BDW/TW assert that in 1938 the term mineral would not have included limestone. This is not correct. The term minerals as used in the 1938 Conveyance would have been intended to have included limestone. This is confirmed by Ms Allington’s report and Mr Gaunt QC’s opinion. There is a long history (pre 1938) of limestone extraction in the area and it was known to have a commercial value. Limestone was extracted in 1938 and had been for some time before that. It was used for a variety of purposes for example, building stone (including for nearby York Minsters, Selby Abbey and local Parish churches), refactory bricks, building and agricultural lime and glass making. When the Gascoigne family reserved the mines and minerals in 1938 the limestone in this locality was regarded as a valuable mineral. It is well known locally that the Gascoigne family, who were based in Yorkshire, spent much time, since at least the seventeen hundreds when it was carried out by Sir Thomas Gascoigne, extending the estate’s mineral assets which included limestone and coal. Locally in 1938 the Gascoigne family exploited limestone for commercial purposes including at nearby Huddleston. It is therefore inconceivable that the Gascoigne family would not have wanted to keep the limestone and intended to do so when reserving the minerals. They would not have thought it necessary to have expressly referred to limestone expecting it to be included in the word minerals. The vernacular common usage of the term minerals in 13

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1938 included limestone. This is confirmed in Ms Allington’s report.

7.33.5 Permian Sand was also commonly referred to as a mineral in texts from 1938, was extensively mined in both quarries and underground mines, and in general was referred to as a mineral then. This is referred to in Ms Allington’s report. Permian Sand would also therefore be included in the minerals reserved. This does not appear to be disputed by BDW/TW.

7.33.6 Furthermore, as set out in Ms Allington’s report, the Lower Magnesian Limestone at the Site is exceptional being suitable for a number of uses including stone for important buildings (such as York and Beverley Minster and Selby Abbey), lime for building and agricultural use, glass making and as a refractory material in the refining of metals. This is in contrast to the more common (non-dolomitic) Carboniferous Limestone. As such it is likely that the Gascoigne family intended to keep it.

7.33.7 The second part of the 1938 Conveyance relates to the rights granted for working the minerals. The reservation of the legal interest and the rights granted are mutually independant. The rights granted are limited to underground workings but include a power to let down the surface. This is clear from the wording and there is no need to infer any other interpretation.

7.33.8 As stated by Mr Gaunt QC, the limitation on underground working is not determinative of whether or not Mr Makin owns the Minerals. Notwithstanding this as a matter of public record limestone has historically and to the present day been worked by underground mines. For example, limestone has been mined by underground workings in the Dudley area (Dudley Limestone Caverns) and Corsham near Bath (Hartham Park Mine), where Bath Stone mining continues to this day but has taken place throughout the 20 th Century. Indeed underground tunnels were driven into the limestone at nearby New Micklefield in World War I. The resultant voids (which remain open today) at New Micklefield were used as air raid shelters in World War II. This is confirmed in Ms Allington’s report. It is becoming increasingly common for minerals (including limestone) to be worked via underground mining if at all possible for environmental reasons and, notwithstanding the

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discovery of the 1938 Conveyance, Mr Makin was considering this as a possibility in any event. For example, as noted in Ms Allington’s report, Albion Stone established new Portland Stone mines on the Isle of Portland some 15 years ago and Portland Stone Firms have well advanced plans to extract Portland Limestone by underground working which will replace their current quarrying activities.

7.33.9 Basal Permian Sand has also historically been mined at underground workings. This is also referred to in Ms Allington’s report. Indeed Mr Makin’s previous investigations reveal the existence of historical underground sand extraction workings underneath the Site. This would be a ground stability issue in terms of any residential development of the site.

7.34 In respect of BDW/TW’s argument that the mining of limestone would destroy the surface of Mrs Makin’s land, such argument is both incorrect and irrelevant. The 1938 Conveyance specifically includes “…power to let down the surface whether built upon or not…” . This permits the owner of the minerals to cause subsidence, with compensation only payable if it damages buildings erected as at the date of the 1938 Conveyance. It was clearly contemplated by the parties that working the minerals may affect the surface – hence the express power to let down the surface. As both Mr Gaunt QC and Ms Allington state, the surface will in fact remain although potentially at different levels. The reference to the purchaser of the surface title from the Gascoignes in 1938 as a corn merchant and then inferring from this that he would need the surface supported to grow crops is unlikely to be correct. Corn merchants were not usually farmers. They traded in corn rather than grew it. In any event, the land to grow corn would still exist (even if at a slightly lower level if subsidence had occurred) and the catastrophic collapse leading, in effect, to the formation of a surface excavation simply would not occur. The inference by BDW/TW and Mr Driscoll QC is therefore made on the incorrect basis.

7.35 This power to let down the surface is completely incompatible with residential development of the site. There is no right of support imposed on the mineral owner. This will make the residential development of the site extremely difficult (if not impossible) to deliver given the risk of subsistence if the minerals are mined and removed. The potential for subsidence would have to be indicated to potential future owners and their mortgage providers and would be evident from

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the title. This is likely to affect the ability of prospective purchasers to obtain a mortgage.

7.36 Mr Driscoll QC relies in part on the case of Coleman v Ibstock Brick Limited. Mr Gaunt QC was Counsel in this case and at paragraph 14 of his opinion clearly distinguishes it from the present facts.

7.37 It is accepted by BDW/TW that the limestone sits very close to the surface of the land (as well as at depth). Any development that touched the limestone would give Mr Makin an actionable claim in trespass. If this is disputed by BDW/TW then this will be a matter for the determination of the Court. If the claim was settled by an award of damages, this would be of a significant sum with potential to effect the viability of the Site, particularly in view of its proposed reduced size as an allocation for residential development and the need to provide infrastructure, such as offsite highway works.

7.38 It is noted that the Council’s adopted Natural Resources and Waste Local Plan acknowledges the following at paragraph 3.10 ‘There is insufficient information to know where the extensive deposits of sandstone and limestone are of a quality which would enable them to be viably worked…..Valuable resources may exist outside of the MSA and developers are encouraged to explore the potential for extraction prior to and well in advance of development’. Limestone and Basal Permian Sand quarries in the area are becoming worked out and the minerals on this Site will therefore become more valuable and necessary, possibly as a potential local sustainable source for the construction of HS2. The vision and strategic objectives of the natural resources and waste local plan includes to “avoid sterilising future mineral resources” and at 2.2.22 it states “we want to ensure that, where possible, we are able to use minerals produced from within the District rather than importing them for further away. Using local minerals for building adds to the local distinctiveness of Leeds and helps to keep its character as well as creating jobs locally”. The mining of limestone underground at this site presents an opportunity for the future sustainable recovery of building stone and associated aggregates, fully in accordance with the Plan’s vision and strategic objectives.

7.39 The existence of the mines and minerals below the site and Mr Makin’s ownership of them was given insufficient consideration during the Site Selection Process of the SAP. The issue affects the deliverability of the Site, rendering the

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plan unsound as it demonstrates it was not positively prepared, justified nor will it be effective in this regard. This is unfortunate given the considerable lengths which Mr Makin has expended trying to engage with the Council on this issue.

7.40 BDW’s/TW’s position that Mr Makin does not present a realistic obstacle to delivery or viability of HG2-124 and BL1-40 is incorrect. Mr Makin has no intention of relinquishing his rights and he intends to robustly defend his legal title to the minerals under HG2-124 and BL1-40 which puts in jeopardy the realisation of a residential development on this site.

7.41 Whilst not material to Mr Makin’s position as set out above, there are a number of inaccuracies in the BDW/TW position as follows:

7.41.1 The reference to Amanda Beresford referring to quarrying at the examination (in paragraph 7.18 of the BDW/TW position statement above) was not by reference to Mr Makin’s intentions for the Site. The inspectors will have their own notes in this respect.

7.41.2 BDW/TW make aspersions regarding Mr Makin’s intentions which are incorrect for which there is no evidence and which are denied by Mr Makin.

LEEDS CITY COUNCIL'S POSITION

7.42 To the extent that the factual matters expressed within the position stated by BDW Homes and Taylor Wimpey (and which have formed the basis of the legal opinion of Mr Driscoll QC dated 30 July 2018) are within the knowledge of Leeds City Council, it agrees fully with the various legal propositions and conclusions as set out in the opinion.

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