Quarries — Old mining permission — Mineral planning authority — Application for permission to be registered refused — Extrinsic evidence considered on appeal — Secretary of State accepting inspector’s recommendation for registration of smaller area than sought — Court of Appeal allowing appeal against that decision — Case remitted to Secretary of State for further consideration
The applicants were successors in title to the owners of Cilyrychen and Glangwenlais Quarries, Llandebie. On March 31 1948 Llandilo Rural District Council granted the applicants’ predecessors in title planning permission to use the quarries. The permission was subject to conditions involving: (1) the tipping of quarry waste; (2) keeping excessive disfigurement to a minimum and taking reasonable precautions to preserve existing amenities; (3) new development; and (4) abandonment of the quarry, to be notified to the planning authority. The printed document had on it “and shown on the accompanying plans” before the phrase “to be used for the purposes of two quarries”, but both had been crossed out. Written at the top of the document was “Plan No M16”. That was an old mining permission, thereby coming within Schedule 2 of the Planning and Compensation Act 1991 and in 1992 there was an application to the Mineral Planning Authority for its registration. It was refused and on August 26 1992 there was an appeal to the Secretary of State. The applicants contended that the permission was ambiguous and persuaded the inspector to look at the plan attached to the permission, the application which had enclosed that plan and extrinsic evidence. He determined the site at the material time.
The Secretary of State accepted the report and allowed the applicants’ appeal for registration, but for an area considerably less than that contended. They appealed on the ground primarily that the permission was not ambiguous and the inspector should not have allowed extrinsic evidence of its interpretation. The third respondent was a member of a protection campaign whose challenge had been compromised on terms.
Held The appeal was allowed.
1. As a general rule, in construing a planning permission, regard might be had only to the permission itself, including the reason stated in it, where the permission was clear, unambiguous and valid on its face: see R v Secretary of State for the Environment [1995] EGCS 95.
2. Unless there was either express incorporation or the need to resolve an ambiguity in the terms of the permission, it was not permissible to resort to extrinsic evidence whether in the form of the application document or other evidence of the factual matrix at the date of the grant of permission.
3. If the court determined that this was not a case where reference might be had to extrinsic evidence due to ambiguity, the Secretary of State agreed that his decision should be quashed.
4. It was not permissible, if the words otherwise were unambiguous, to create an ambiguity by suggesting that on the face of it the application had no purpose.
5. If the court decided that it was unambiguous, the previous existing legislative history was of no significance.
6. In all the circumstances the permission in this case was not ambiguous and neither the plan nor the application should have been before the inspector. Thus, the matter had to go back to the Secretary of State for further consideration.
Anthony Anderson QC and Charles Fay (instructed by Hill Dickinson Davis Campbell) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for Wales; John Steel QC and Hugh Richards (instructed by the solicitor to Dyfed County Council) appeared for the local planning authority; Brian Ash QC and Michael Burrell (instructed by Leigh Day & Co) appeared for the third respondent.
