Company depositing waste from demolition of walls, buildings, roads and paths – Council claiming change of use without planning permission – Company claiming deposit permitted development within article 3 of Town and Country Planning General Development Order Act 1988 – Whether walls, buildings, roads and paths were articles – Inspector allowing company’s appeal – High Court dismissing council’s appeal – Court of Appeal dismissing appeal
R Marchant & Sons Ltd (the company), the second respondent, were the owners and occupiers of a 7.5 ha site at Riverhill, near Sevenoaks, Kent, which lay within an area of outstanding natural beauty. At least since 1945 the site had been used for the extraction of stone and gravels, and for the processing and deposit of waste consisting mainly of building and civil engineering contractors’ waste from the demolition of walls and buildings and the breaking up roads and paths. In August 1977 the council granted a disposal site licence. In May 1992 the council issued an enforcement notice alleging a breach of planning control. The notice alleged that without planning permission the company had made a change of use of the land by depositing and processing imported waste materials and required the company to stop the making of further deposits and to reinstate the site within six months. The company appealed against the notice on the ground that planning permission had been granted for the existing use of the site, and that article 3 of the Town and Country Planning General Development Order 1988 allowed, as permitted development, the deposit of the waste materials because it resulted from an “industrial process” on land which was used for that purpose on July 1 1948. Industrial process was defined as a process for or incidental to either “the making of any article” or “the . . . breaking up or demolition of any article”. An inspector, appointed by the first respondent, considered that the word “article” could not be taken to exclude a building or parts of a building such as walls or doors, or even other structures such as drives or paths and accordingly allowed the appeal against the enforcement notice. The judge dismissed the council’s appeal. The council appealed to the Court of Appeal contending that the word “article” could not be taken to include a building or a wall, and that it was used in a similar context in the Factories Act 1961 which supported that construction.
Held The appeal was dismissed.
1. Although the phrase “a process for or incidental to . . . the breaking up or demolition of any article” appeared in both the General Development Order 1988 and the Factories Act 1961, it was not permissible to infer that parliament had intended the words, which had such a general and wide meaning used in different contexts, to have identical scope wherever they were used.
2. The judge had been right to place emphasis on the word “demolition” which was normally used in respect of buildings and structures. A brick did not cease to be an article because it was incorporated with other bricks and mortar into a wall and nor could concrete, when laid into a path, be regarded as having different characteristic. Therefore the phrase was wide enough to cover the demolition of walls, buildings, etc, and the breaking up of roads, driveways and paths.
Richard Glover (instructed by the solicitor to Kent County Council) appeared for the council; Nathalie Lieven (instructed by Treasury Solicitor) appeared for the Secretary of State for the Environment; Keith Lindblom QC and Philip Petchey (instructed by Knocker & Foskett, of Sevenoaks) appeared for the company.
