Planning permission — Refusal to register old mining permission — Whether mining operations authorised by interim development order permission — Whether breach of planning control
The appellant
company had mined Cophurst Farm from around the turn of the century. In 1947
the owners of the land were granted permission under a general interim
development order, an ‘Old Mining Permission’, subject to a condition that
prior to any development approval of detailed plans was required to be
submitted for approval. No details were submitted to the planning authority by
the appellants, who continued mining. Recently, the mineral planning authority
refused to register the appellants’ IDO permission and served on them an
enforcement notice requiring the cessation of mining operations on the land.
The appellants appealed against the decisions of the judge below, who upheld
the decision of the Secretary of State for the Environment, who had dismissed
their appeals against the council to register the old mining permission and
their appeal against the enforcement notice. The appellants contended that the
permission was authorised as mining had taken place before April 1 1979. They
also contended that the presumption against planning permission in the green
belt did not apply.
(1) Because of
para 19 of Schedule 24 to the Town and Country Planning Act 1971, the old
mining permission does not authorise anything
1979. When these provisions and regulation 7 to the Town and Country Planning
(Minerals) Regulations 1971 refer to development ‘relating’ to a planning
permission they mean development authorised by that permission. As a matter of
statutory interpretation no mining can be regarded as authorised unless either
it was authorised by that permission without any requirement as to subsequent
approval or, not being so authorised, had been approved in the manner
applicable to that planning permission. When looking at the appellants’
permission to see what was authorised it was apparent that the carrying out of
mining operations was not authorised on any part of the site pending the
submission of satisfactory details. None were submitted and so the mining
operations carried out before April 1 1979 were not authorised. Therefore none
of the mining operations to which the planning permission related had begun to
be carried out: see p77D. (2) There is a meaningful difference between
asserting there is no presumption against permitting all mineral development in
a green belt and asserting that there is a presumption against permitting
‘inappropriate’ mineral development. The Secretary of State’s decision letter
is open to the construction that he took the view that this was inappropriate
in this green belt and that therefore the presumption applied: see p86.
to in the judgments
Oakimber
Ltd v Elmbridge Borough Council (1991) 62
P&CR 594; [1992] JPL 48; sub nom R v Elmbridge Borough Council,
ex parte Oakimber Ltd [1991] 3 PLR 35
Staffordshire
Moorlands District Council v Cartwright
(1991) 63 P&CR 285, [1992] JPL 138, CA
Wells v Minister of Housing and Local Government [1967] 1 WLR
1000; [1967] 2 All ER 1041; (1967) 65 LGR 408; 18 P&CR 401, CA
Whitley
(FG) & Sons Co Ltd v Secretary of State for
Wales (1992) 64 P&CR 296; [1992] 3 PLR 72; [1992] JPL 856, CA
Appeal against
the decision of Tucker J
This was an
appeal against the decision of Tucker J, dismissing the appellants’ appeals
against the decision of the Secretary of State for the Environment, upholding
the second respondent council’s refusal to register an old mining permission
and the issuing of an enforcement notice.
Sullivan QC and Paul Stinchcombe (instructed by Kent Jones & Done, of
Stoke-on-Trent) appeared for the appellants, Daniel Platt Ltd.
Drabble QC (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Barrett (instructed by the solicitor to Staffordshire County Council) appeared
for the second respondents, Staffordshire County Council.
following judgments were delivered.
SCHIEMANN LJ: The appellants and their predecessors in title have been mining at
Cophurst Farm since the beginning of the century. In those days
come in a few decades later. So it was that the then owners of the land sought
and obtained in 1947 permission under a general interim development order for
the continuance of mining operations. Such permissions are known as old mining
permissions. Permissions in those days were not framed as tightly as they are
now. The very term outline permission with which we are now familiar was not
then in use. There was at one time some dispute as to the effect of the IDO
permission obtained in 1947, but it is now common ground that it was akin to
today’s outline permission, namely a planning permission subject to a condition
requiring the submission and approval of details of the proposed operations
before any operations are begun. However, as is again now common ground, no
such details were ever submitted to the planning authority. Yet mining
continued and no enforcement action was ever taken until recently.
Recent
legislation provides for the registration of such of the IDO permissions as are
still extant and for the control of activities authorised by them. Unless the
permission is registered the developer can not rely on it. This case arises out
of the refusal by the mineral planning authority to register this old mining
permission and the service by the council of an enforcement notice requiring
mining operations on the land to cease.
There are
before the court two appeals made by Daniel Platt Ltd against a judgment
delivered by Tucker J on April 12 1995. That judge:
1. dismissed
the appellants’ appeal against the decision of the Secretary of State notified
by letter dated October 27 1993 to dismiss the appellants’ earlier appeal
against the refusal of the county council to register the old mining
permission; and
2. dismissed
the appellants’ appeal against the decision of the Secretary of State notified
in the same letter to dismiss the appellants’ further earlier appeal against an
enforcement notice issued by the county council on September 9 1991.
There is some
overlap in these two appeals inasmuch as if the appellants succeed on the first
then they will succeed on the second. However the enforcement notice appeal
also raises a point which is independent of the registration appeal.
Registration
appeal
Legislative
regime
The
application to the council for the registration of the old mining permission
was made under section 22 and schedule
2 to the Planning and Compensation Act 1991.
Schedule 2
provides that:
1.–(1) Any
person who is an owner of any land to which an old mining permission relates …
may apply to the mineral planning authority for the permission to be
registered.
(2) The
application must specify the development which the applicant claims is
authorised by the permission, including the land to which the permission
relates, and the conditions (if any) to which the permission is subject.
(3) …
(4) On an
application under this paragraph, the mineral planning authority must —
(a) if they are satisfied that … the
permission authorises development consisting of the winning and working of
minerals … ascertain —
(i)
to which the permission relates, and
(ii)
any) to which the permission is subject,
and grant the application, and
(b) in any other case, refuse the application.
The schedule
goes on to provide a mechanism for the imposition of new conditions on the old
mining permission once it has been registered.
The
legislative background to those provisions was that between July 22 1943 and
July 1 1948 — on which date the Town and Country Planning Act 1947 came into
force — a number of permissions for development were granted under interim
development orders. Section 77 of the 1947 Act provided that where consent for
development had been granted on an application under such an order, permission
for development covered by the consent which had not been carried out before
July 1 1948 was deemed to be granted and no fresh application was needed. This
provision was carried through by subsequent Planning Acts in consequence of which
many permissions (known as IDO permissions) remained valid. Tracing through the
legislative history is complicated — the more so since mining permissions have
a regime of their own — but for present purposes it suffices to note that para
19 of the 24th Schedule to the Town and Country Planning Act 1971, as modified
by regulation 6 of the Town and Country Planning (Minerals) Regulations 1971,
provided:
… every
planning permission granted or deemed to have been granted before 1st April
1969 shall, if the development to which it relates had not been begun before
the beginning of 1968, be deemed to have been granted subject to a condition
that the development must be begun, not later than the expiration of 10 years
beginning with 1st April 1969.
What
constitutes ‘beginning’ in these circumstances is defined in regulation 7. This
provides:
… Development
consisting of mining operations shall be taken to be begun on the earliest date
on which any of the mining operations to which the relevant grant of planning
permission relates begin to be carried out.
Construction
of the legislative provisions
What then is
the position where there has been a grant of an old mining permission and,
although this was subject to a condition that before development is carried out
satisfactory plans must be submitted, in fact no plans have been submitted,
still less approved? Looked at purely as a matter of construction and ignoring
for the moment any case law, the answer seems to me relatively simple.
Schedule 2 to
the 1991 Act is concerned with ‘development which the applicant claims is
authorised by the permission’. The authority must refuse the application to
register unless ‘they are satisfied that … the
by looking at the permission. That might have been revoked or modified. The
authority must ask themselves ‘what does the permission authorise today’.
Because of para 19 of the 24th Schedule to the 1971 Act the permission does not
authorise anything today unless ‘the development to which it relates’ was begun
before April 1 1979. When para 19 of the 24th Schedule to the 1971 Act and
regulation 7 of the 1971 Mineral Regulations refer to development ‘relating’ to
a planning permission they mean development authorised by that permission. As a
matter of statutory interpretation it seems to me that no working can be
regarded as authorised unless either it was authorised by the permission
without any requirement as to subsequent approval or, not being so authorised,
had been approved in the manner applicable to that planning permission.1
1 Judge’s note: cf
Land Commission Act 1967 section 99(3)
Where for the
purposes of any provision of this Act it falls to be determined what development
of any land is or was authorised by planning permission at a time when planning
permission granted on an outline application (that is to say, an application
for planning permission subject to subsequent approval on any matters) is or
was in force in respect of that land, any development of that land which at
that time
(a)
or was authorised by that permission without any requirement as to subsequent
approval, or
(b)
being so authorised, has or had been approved in the manner applicable to that
planning permission,
but no other
development, shall for those purposes be taken to be, or (as the case may be)
to have been, development authorised by that permission at that time;
In the present
case the authority had before them an application which specified a large area
of land to which the permission allegedly related. If one looks at the
permission to see what was authorised one sees that the carrying out of mining
operations was not authorised on any part of the site pending the submission of
satisfactory details. None were submitted and so the mining operations carried
out before April 1 1979 were not authorised. Therefore none of the mining
operations to which the planning permission related had begun to be carried
out. This in substance is the view which commended itself to the Secretary of
State and to Tucker J.
Case law
This court has
had to consider similar points in three cases: Oakimber Ltd v Elmbridge
Borough Council (1991) 62 P&CR 594,1 Staffordshire
Moorlands District Council v Cartwright (1991) 63 P&CR 285
(although not on the presently relevant point for which one must look at the
transcript) and F G Whitley & Sons Co Ltd v Secretary of State
for Wales (1992) 64 P&CR 296.2 The second of these
adds nothing to the first and I say nothing more about it.
1 Sub nom R v Elmbridge
Borough Council, ex parte Oakimber Ltd [1991] 3 PLR 35.
Oakimber
decision
This was not a
mining case but the point at issue there was precisely the same as that in the
present case. An outline permission had been granted
development of an industrial site, subject to submission and approval of
detailed plans. In fact a lot of development had taken place over the years.
This fell into two categories:
Category (a)
was development in accordance with later permissions given following fresh
applications for planning permission on various parts of the site.
Category (b)
was development in respect of which no application of any kind had been made
but which had never been enforced against.
The issue
before the court was whether the post-1950 development was development which
‘related’ to the 1950 permission so as to fall within para 19 of the 24th
Schedule.
The majority
of the court held that so far as category (a) was concerned, it did not so
relate, but related instead to the later permissions. As to category (b),
Hodgson J (from whose judgment that case was an appeal) had held that the
explanation for the failure to take any enforcement action must have been that
the authority considered this category of development to fall within the 1950
permission. He held moreover that ‘relates’ in para 19 must be given a wider
meaning than one restricting it to development actually permitted by the
consent … (the 1950 permission) plainly and in terms contemplates built
development taking place in stages and over the years. Such development plainly
has taken place and I think it not possible to say that (the permission) does
not ‘relate’ to that development.
As to this,
Purchas LJ, with whom Taylor LJ agreed, said:
In my
judgment, the failure to take enforcement proceedings in respect of the
category (b) developments can be of only limited assistance in … construing …
[the permission]. At the most it can only reflect the view of the planning
officers advising the authority at the time of any particular development which
may have taken place years after the issue of … [the permission]. There may, in
any event, have been numerous other perfectly valid explanations for this
failure to take enforcement action. Certainly I find no reason to reconsider my
initial construction of … [the permission] to the effect that it did not
permit, without subsequent approval of details … any physical development … I
cannot agree that any of the category (a) or category (b) developments related
to … [the permission] and am forced to the conclusion that Hodgson J was not
justified in drawing the conclusions to the contrary which he reached.
That decision
is wholly consonant with the interpretation which I would give to the relevant
legislative provisions and which I have indicated earlier in this judgment.
In the Whitley
case Woolf LJ summarised the earlier case law at p302 as follows:
it is only
necessary to ask the single question; are the operations (in other situations
the question would refer to the development) permitted by the planning
permission read together with its conditions? … If the operations
contravene the conditions they cannot be properly described as commencing the
development authorised by the permission. If they do not comply with the
permission they constitute a breach of planning control and for planning
purposes will be unauthorised and thus unlawful. This is the principle which
has now been clearly established by the authorities. It is a principle which I
would have thought made good sense since I can not conceive that when section
41(1) of the 1971 Act made the planning permission subject to a condition
requiring the development to be begun by a specified date, it could have been
referring to development other than that which is authorised by the permission
… The mining operations to which the planning permission relates are those
authorised by the planning permission, not those which are unauthorised,
because they contravene conditions contained in the planning permission.
(Emphasis
supplied.)
It was upon
this statement of principle that the Secretary of State founded his decision in
the present case.
Whitley
Decision: the facts
The facts of Whitley
were unusual. Permission had been granted in 1973 for the extraction of
minerals subject to a number of conditions. Conditions 2, 3 and 4 in effect
provided that no working should take place except in accordance with a scheme
to be agreed with the local planning authority or failing agreement, as should
be determined by the Secretary of State. Condition 11 stated:
The
development hereby permitted shall be begun on or before 30.11.78
What happened
was that the developers applied 16 months before the deadline for approval of a
scheme, but the authority took no decision until October 26 1978 when they
refused approval. The developer appealed. The Secretary of State did not give
his decision by November 30 1978 (the deadline). Indeed he did not finally
issue his approval until 1982. He approved a scheme which did not materially
differ from the one which had been submitted in 1977.
The
developers, anxious not to lose their permission, had meanwhile, prior to
approval of the scheme, carried out mining operations (‘pre-approval operations’)
between November 28 and December 8 1978. Although they could have done so, the
authority served no enforcement notice in respect of those operations. This was
eminently understandable since there was an appeal pending in which the
Secretary of State would decide whether or not the scheme was acceptable and
since the mining operations had ceased after a few days being designed purely
to keep the old mining permission alive.
After the
Secretary of State had approved the scheme in 1982 the developers resumed
mineral operations (‘the post-approval operations’) in accordance with the
scheme. The planning authority then on December 2 1983 served an enforcement
notice in respect of the post-approval operations. The developers appealed to
the Secretary of State, who dismissed their appeal. There was then a further
appeal to the High Court and a further appeal to this court. This court held
that the developer’s
enforcement notice should be quashed.
Whitley
decision: its relevance to this appeal
Mr Jeremy
Sullivan QC, in his written submissions seductively presented, suggested that
the actual decision in Whitley showed that ‘in deciding whether
development authorised by a permission has been commenced one should not adopt
an over rigid, or literal adherence to the general principle enunciated by
Woolf LJ and relied on by the Secretary of State’. He submitted that the
decision in Whitley was authority for the proposition that the authority
and the Secretary of State should have adopted a ‘broad approach’ and that they
should have asked themselves ‘broadly speaking, did what happened before the
deadline relate, as a matter of fact and degree, to the permission?’. He
submitted, that neither the authority nor the Secretary of State had adopted
that broad approach but had instead adopted what I can term a ‘narrow approach’
because of a too literal adherence to the principle enunciated by Woolf LJ:
If the
operations contravene the conditions they cannot be properly described as
commencing the development authorised by the permission. If they do not comply
with the permission they constitute a breach of planning control and for
planning purposes will be unauthorised and thus unlawful.
Mr Sullivan
submitted that the authority and the Secretary of State and this court were
obliged, because of the actual decision in Whitley, to adopt the broad
approach.
For my part, I
accept that the Secretary of State in the present case did not adopt the broad
approach, but I reject the submission that he was at liberty, still less bound,
so to do. I am not persuaded that the court in Whitley adopted the broad
approach or indeed that it was, after the decision in Oakimber, free to
adopt it.
In Whitley
the planning authority, represented as it happens by Mr Sullivan, had submitted
that since at the time when the pre-approval operations were carried out there
had been no approval:
1. it followed
that when they were done they had not been authorised by the old mining
permission;
2. from this
it followed that nothing to which the old mining permission ‘related’ had been
begun before the cut-off date and that the old mining permission was thus of no
further effect;
3. from this
it followed that the post-approval operations could not be regarded as
authorised by the old mining permission;
4. therefore
the authority were entitled to serve an enforcement notice in respect of the
post-approval operations notwithstanding that they were in conformity with the
approval given by the Secretary of State a few months before.
This court
rejected this argument. It took the view that, while at the time when the
pre-approval operations were carried out the operator had taken a risk, as it
turned out, the pre-approval operations were authorised by the old
mining permission. In deciding what, at the cut-off date, was
requisite approval for the scheme had not been obtained by the cut-off date. It
regarded the decision of the Secretary of State in approving the scheme as
demonstrating that what was done was authorised by the permission (although not
yet by the Secretary of State) at the time when it was done. In effect this
court accepted in Whitley that, in circumstances where an application
for approval of details had been made prior to the cut-off date and those
details had been approved subsequent to the cut-off date, the right question
was: ‘Are (rather than were) the operations which were carried out prior to the
cut-off date operations authorised by the Planning Permission?’. That decision,
in my judgment, does not involve any departure from, or show any desire on the
part of the court to depart from, the principle established by the earlier
authorities that the operations relied upon must be authorised by the
permission. The decision as such does not oblige or persuade me to adopt the
broad approach although I accept that it is consistent with the broad approach.
I record
without comment that Mr Richard Drabble QC, who appeared for the Secretary of
State, reserved the right to contend, should this case go further, that Whitley
was wrongly decided.
Mr Sullivan
relies on the fact that it is clear from the judgments that the court regarded
it as significant in that case:
1. that the
developer had sought approval before the cut-off date;
2. that it had
obtained approval before the enforcement notice was issued;
3. that it had
not been served with an enforcement notice in respect of the pre-approval work;
4. that the
approval was in respect of a scheme substantially the same as that which had
been submitted;
5. that the
Secretary of State was under a duty to determine a scheme; and
6. that the
time taken between submission of plans and approval was ‘inordinate’.
Mr Sullivan sought
to rely on these matters as showing that the court was adopting a broad
approach. In my judgment, he has not made sufficient allowance for the desire
of any court to confine the effects of its decisions to what must be decided on
the facts of the case before it and to emphasise any broad merits which point
to the same conclusion as the court has reached. It is perhaps the same desire
which leads me to emphasise that the present is a case in which no details
whatever had been submitted to the authority. We are not concerned directly
with the situation, which undoubtedly can arise, when the planning permission
is subject to a condition that the building must be built or the operations
carried out in a particular way and yet what was done was at variance with what
was foreseen. Those problems I would leave to be considered when they need to
be considered.
Then Mr
Sullivan submitted that in deciding the question whether the authority were
under an obligation to register the permission it was relevant that section
191(3) of the Town and Country Planning Act had
submitted that the authority had in effect waived the requirement to submit
plans and could not now be heard to say that all the development which had gone
on over the past 40 years was unauthorised.
Section
191(3) of the Town and Country Planning Act 1990
That
subsection provides:
For the
purposes of this Act any matter constituting a failure to comply with any
condition or limitation subject to which planning permission has been granted
is lawful at any time if–
(a) the time for taking enforcement action in
respect of the failure has then expired; and
(b) it does not constitute a contravention of
any of the requirements of any enforcement notice or breach of condition notice
then in force.
Mr Sullivan
submits that, although the digging complained of in the enforcement notice
preceded the coming into force of section 191(3), those diggings were deemed to
be ‘lawful at any time’ notwithstanding that they had been in breach of a
condition.
In my
judgment, subsection 191(3) is irrelevant to the crucial question for the
purposes of the IDO appeal. That question was whether the mining operations
which were carried out prior to the deadline related to or were operations
authorised by the planning permission. Section 191(3) is wholly irrelevant to
the determination of that question. It may be that the mining which went on in
the past 40 years is to be regarded as lawful, but it does not follow from this
that it was authorised by the IDO permission. If I am right in what I have held
in the preceding part of this judgment that is the question which has to be
addressed.
What is
the effect of the failure to serve an enforcement notice?
Again, if it
be right that the question to be addressed is ‘were the operations before the
cut off date authorised by the IDO permission‘ then it is clear that any
failure to serve an enforcement notice can not be of any relevance to that
question. That is clear from the quotation from the judgment of Purchas LJ
in Oakimber cited earlier in this judgment.
Mr Sullivan
faintly argued that his case might be assisted by the doctrine in Wells
v Minister of Housing and Local Government [1967] 1 WLR 1000 that
procedural requirements can be waived by the authority. In my judgment, on the
facts of the present case, Wells can not help him. It would be quite
wrong to regard the requirement for the submission of details prior to
commencement of working as a mere procedural requirement.
Ready as I am
to waive irregularities and procedural defects, I think that to satisfy section
43 there must be at least a positive statement in writing by or on behalf of
the planning authority that no planning permission is necessary. Otherwise
there would be no certainty in these important matters.
Of course, I
fully accept that after the passage of time it will be too late to issue
enforcement notices in respect of operations long ago but that is of
no relevance to the present case, which is concerned with the registrability of
the old mining permission.
I note,
without further comment, that there is no finding in the inspector’s report
that either the authority as a corporate entity or any individual with
delegated power ever took any conscious decision not to take enforcement
action.
For those
reasons I would dismiss the registration appeal.
Enforcement
notice appeal
So far as
presently relevant this appeal to the Secretary of State was based on two
grounds — that permission ought to be granted for the development and that
there had been no breach of planning control. The latter raised no issues
separate from those considered in the registration appeal and I need say no
more about it.
The merits
appeal was lost by the appellants. They submitted before Tucker J and before us
that this was because the inspector and Secretary of State misinterpreted the
latter’s policy. They ask the court to quash the decision and send the case
back to the Secretary of State.
The crucial
part of the decision letter is para 14, which reads as follows:
14… . The
Inspector considered that the principal harm the development would cause would
be its damaging visual impact, which would be major and long lasting. Against
this it was necessary to weigh the long history of the use of the quarry and
the employment consequences for the work force. The Inspector’s view that the
policies in the approved structure plan should generally prevail over those in
the 1957 Stoke Development Plan, is accepted, as is his conclusion that, in a
Green Belt location where there is a strong general presumption against
inappropriate development, the circumstances in this case are not exceptional
enough to justify overriding that presumption. Accordingly the Inspector’s
recommendation that planning permission should not be granted is accepted and
the appeal on Ground ‘A’ fails.
The essence of
Mr Sullivan’s submission is that both the inspector and the Secretary of State
proceeded on the false assumption that there was a strong general presumption
against permitting mineral workings in the green belt. He points to PPG 2 in
the form in which it then was as indicating that policy was agnostic on the
subject of permitting mineral development in the green belt.
PPG 2 provided
as follows:
12. The general policies controlling development
in the countryside apply with equal force in Green Belts but there is, in
addition, a general presumption against inappropriate development within them.
13. Inside a Green Belt, approval should not be
given, except in very special circumstances, for the construction of new
buildings or for the change of use of existing buildings for purposes other than
agriculture and forestry, outdoor sport, cemeteries, institutions standing in
extensive grounds, or other uses appropriate to a rural area.
14. …
15. Minerals can be worked only where they are
found. Their extraction need not be incompatible with Green Belt objectives,
provided that high environmental standards are maintained and that the site is
well restored.
Mr Drabble
accepts that there is not a presumption against permitting mineral extraction
in the green belt unless the particular mineral extraction proposal is
inappropriate to the green belt. He submits that a natural reading of the
Secretary of State’s letter is that he regarded this particular mineral
extraction proposal as inappropriate to this green belt.
Mr John
Barrett, who appeared for the authority, adopted that submission but made an
additional one, which echoed the approach of the inspector. This was that in
the case of the Staffordshire green belt the development plan did contain a
presumption against granting planning permission for any mineral development
save in exceptional circumstances. For my part, since the Secretary of State
did not approach the instant decision in reliance on the provisions of his
modifications to and letter of approval of the Staffordshire structure plan, I
prefer to rest my decision on the submissions of Mr Drabble. None the less, it
is right to set out the relevant parts of the inspector’s report.
In this he
dealt with the policy background in these terms in paras 153 to 156.
153. The appeal site is within the North
Staffordshire Green Belt. Advice upon development in such locations is to be
found in PPG 2 and, in a local context, the Staffordshire Structure Plan.
Paragraph 15 of PPG 2 states that the extraction of minerals need not be
incompatible with Green Belt objectives provided that high environmental
standards are maintained and that the site is well restored. I take this to
mean that mineral workings are not necessarily inappropriate in the Green Belt
and therefore not, in general, subject to the general presumption against
inappropriate development.
154. On the other hand the most up to date version
of the Structure Plan takes a different line, best explained in the letter
dated 13 March 1991 which modified and approved it. Apparently the County Council
had requested that the list of development regarded as appropriate within the
Green Belt should include mineral development, but this request was denied. The
Secretary of State expressed a belief that the types of development appropriate
to this Green Belt should accord closely with the guide lines in paragraph 13
of PPG 2. Any other type, specifically mineral development, would have to be
justified in terms of exceptional circumstances. This advice appears to be at
odds with the general stance towards mineral development expressed in PPG 2.
However I believe it should prevail in the context of the present appeal
because it applies to a specific local area, was expressed more recently than
the advice in PPG 2, and the contents of PPG 2 must have been taken into
account when approving the Structure Plan in those terms.
The inspector
in para 155 indicates that the Stoke on Trent development plan implies a
general presumption in favour of the working of marl on this site but points
out that the plan was almost 35 years old and that there had been many changes
since then. He continued:
The weight
attached to the provisions of the 1957 Plan must be substantially reduced by
all of the changes and I do not believe that in this appeal it is sufficient to
outweigh the general presumption against inappropriate development within the
Green Belt …
156. Most of the other policies relevant to this
appeal are aspects of the same general intentions. That is that mineral
development may be acceptable within rural areas so long as the sum of the
effects upon its surroundings and nearby residents does not reach an
unacceptable level. Bearing in mind the above, and from what I have seen, heard
and read, I consider the main issue in determining the present appeal to be
whether there are very special circumstances in this case sufficient to justify
overriding the strong general presumption against inappropriate development
within the Green Belt.
The inspector
in the following paragraphs then examines various alleged disadvantages
following from the development and states in para 170:
In summary, I
consider that the principle harm stemming from this development would be its
damaging visual impact which would be both major and long lasting.
He then turns
to various factors in favour of the development and concludes as follows:
175. The decision in this appeal involves weighing
the demands of a long established local industry, and the employment prospects
of its employees, against the interests of many local people who feel strongly,
that the quality of their lives would be seriously harmed were this quarry to
continue. In addition the development would, for many decades seriously detract
from the appearance of an area of attractive if not outstanding countryside.
Conflicts of this kind are not unusual and the local development plan is
intended to provide a framework for resolving them. In this instance the two
most important components of that development plan i.e. the 1957 Stoke
Development Plan and the current Structure Plan are themselves in conflict. In
such circumstances Part 3 of Schedule 2 to the 1990 Act indicates that the
Structure Plan should in general, prevail.
176. In my judgment the sum of the detailed
arguments for and against this development are not of greatly differing weight,
but this is a Green Belt area where there is a strong general presumption
against inappropriate development. On balance I consider that the circumstances
in this case are not sufficient to justify overriding that presumption. I
believe that permission for the development enforced against should not be
granted and that the appeal on Ground (a) should fail.
Mr Sullivan
submits that para 13 of PPG 2 as then extant, defined ‘inappropriate
development’ in a green belt as including only the construction of buildings
and the change of use of existing buildings and that para 15 went on to provide
explicitly as follows:
Minerals can
only be worked where they are found. Their extraction need not be incompatible
with Green Belt objectives …
He submits
that it cannot at the same time be said that the extraction of minerals is
inappropriate development within a green belt so that there is a strong general
presumption against the same and that, since minerals can only be worked where
they are found, their extraction need not be incompatible with green belt
objectives. He submits that had the Secretary of State properly guided himself
as to law in this respect it is clear, or in any event possible, that the
decision on ground (a) of the appeal would have been different in light of the
fine balance which his inspector had earlier found.
Those faced
with the task of drawing up planning policy guidelines and structure plans are
always urged to put in them a number of desirable aims. There is invariably in
my experience a strong element of trying to have the best of all worlds. These
aims are often in conflict one with another. Planning inquiries are regularly
occupied, unless things have changed recently, by citations on each side of
various parts of various policy documents. The drafters of such documents often
try in general terms to indicate which of two conflicting desiderata is
to prevail in the event of conflict. They always deal with the matter in
general terms because it is recognised that the planning decision in any
particular case while made in the context of broad policy guidelines, in the
end has to be made on the decision maker’s assessment of the merits of that
particular application. While in principle a merits decision can be quashed on
the grounds that the decision taker misunderstood his own policy it is only in
a clear case that such a challenge will be successful.
The present
case, in my judgment, is not a clear one. There is a meaningful difference
between asserting there is no presumption against permitting all mineral
development in a green belt and asserting that there is a presumption against
permitting ‘inappropriate’ mineral development. Inappropriate developments are
ones which harm green belt objectives such as, to quote PPG 2 para 4, safeguarding
the surrounding countryside from further encroachments. In the context of
minerals digging deeper would not do this whereas spreading the area of
operations laterally would. In the present case it is clear that lateral
expansion was what was envisaged. The decision letter, in my judgment, is open
to the construction that the Secretary of State took the view that this was
inappropriate in this green belt area and that therefore the presumption
applied.
I see no
grounds for quashing the decision on the enforcement notice and would dismiss
this appeal also.
AULD LJ: I agree.
ROCH LJ: I also agree.
The appeal
was dismissed.
