Town and Country Planning Act 1971 and Town and Country Planning General Development Order 1977–Erection by limestone quarrying company of a ‘ready-mixed concrete batching plant’–Whether permitted development under article 3 and class XIX, paragraph 2, of order–Was the plant required in connection with the treatment or disposal of the limestone?–The process carried out by the plant involved the loading of limestone into a hopper and its conveyance to
In these
proceedings the plaintiffs, South Glamorgan County Council, sought a
determination as to whether development proposed by the defendant company was
permitted development under the Town and Country Planning General Development
Order 1977. The plaintiffs contended that the development in question, namely,
the erection of a ready-mixed concrete batching plant, could not be carried out
without planning permission being granted by the plaintiffs or by the Secretary
of State for the Environment.
M G V Harrison
(instructed by Sharpe, Pritchard & Co, agents for M D Boyce, County
Solicitor, South Glamorgan County Council) appeared on behalf of the
plaintiffs; I D L Glidewell QC and G R G Roots (instructed by Hallinan,
Blackburn, Gittings & Co, of Cardiff) represented the defendants.
Giving
judgment, JUDGE FINLAY said: The defendant company has for some years past won
and worked limestone at a quarry known as Blaengwynlais and situated in part in
the county of South Glamorgan and partly in the county of Mid-Glamorgan, these
quarrying operations being carried out under and by virtue of a number of
planning permissions granted from time to time, the area to the south-west of
the quarry area being worked prior to the coming into force of the Town and
Country Planning Act 1947 or pursuant to an application approved on March 15
1948, and other areas lying to the north and east of that being worked under
planning approvals granted in 1961.
On July 21
1977 the defendant company applied for planning permission for the erection of
a ready-mixed concrete batching plant to be sited in the quarry area, which was
that which I have already indicated was earliest worked. The application was
considered, and on October 21 1977 notification of the county council’s refusal
to grant the permission was communicated to the defendant company. The
defendant company appealed against the refusal, and, after a determination by
the Secretary of State for Wales to hold a public inquiry, subsequently on
October 12 1978 notified the county solicitor that the defendant intended to
withdraw his appeal and erect the ready-mixed concrete batching plant without
permission, on the ground that the proposed development was permitted by virtue
of article 3 and classes VIII and XIX of Schedule 1 to the Town and Country
Planning General Development Order 1977.
The County
Council of South Glamorgan, the plaintiff council, not accepting that view of
the operation and effect of the General Development Order, issued this summons,
which seeks the determination of the court on the question whether the proposed
development is permitted under class XIX and class VIII, and, further, for a
declaration that these provisions do not permit the proposed plant to be
erected in the quarry without planning permission granted by the plaintiff or
by the Secretary of State.
At the
commencement of this hearing Mr Glidewell, who appears with Mr Roots for the
defendant company, indicated that he did not propose to submit that the
development was permitted under class VIII, taking the view that the same
argument as was relevant to the submission that it was permitted under class
XIX would be applicable to the question whether it was permissible under class
VIII. In short, if the defendants are entitled to bring themselves under class
XIX and thus to succeed, it is not necessary to do so under class VIII, whereas
if they cannot succeed under class XIX, they would not succeed under class
VIII. The argument accordingly has been directed before me to the construction
and operation of class XIX of the order.
The Town and
Country Planning General Development Order, 1977 provides in article 3 thereof
that:
Subject to
the subsequent provisions of this order, development of any class specified in
Schedule 1 to this order is permitted by this order and may be undertaken upon
land to which this order applies, without the permission of the local planning
authority or of the Secretary of State:
Provided that
the permission granted by this order in respect of any such class of
development shall be defined by any limitation and be subject to any condition
imposed in the said Schedule 1 in relation to that class.
Subparagraph
(2) of the article provides that ‘Nothing in this article or in Schedule 1 to
this order shall operate so as to permit any development contrary to a
condition imposed in any permission granted or deemed to be granted under Part
III of the Act otherwise than by this order.’
It is common ground that that limitation is not here applicable.
Class XIX,
paragraph 2 provides:
The erection,
alteration or extension by mineral undertakers on land in or adjacent to and
belonging to a quarry or mine comprised in their undertaking of any building,
plant or machinery, or structure or erection of the nature of plant or
machinery; which is required in connection with the winning or working of
materials, including coal won or worked by virtue of section 36(1) of the Coal
Industry Nationalisation Act 1946, but not any other coal, in pursuance of
permission granted or deemed to be granted under Part III of the Act, or which
is required in connection with the treatment or disposal of such minerals.
There is then
a proviso, which is not material to the present question.
I have had the
advantage of hearing the evidence of Mr Peter Norman Cope and Mr Alistair
Mundy, both of whom, having sworn affidavits in the matter, gave further oral
evidence and were also cross-examined.
The proposed
development consists in the erection on land of what is described in the application
for permission for development, which I earlier mentioned, as the erection of
ready-mixed concrete batching plants, and the nature of the plant is well
indicated by drawings which are part of the exhibit PMC4 to the affidavit of Mr
Cope. The plant comprises a hopper, containing four compartments, with suitable
arrangements for measuring the contents on discharge of the contents from those
compartments on to a belt conveyor, which would convey the material to a silo,
which has arrangements for the storage not only of water but also of cement.
The operation of the silo is such that it would deliver measured quantities of
the material coming to the hopper, together with measured quantities of cement
and water, into a vehicle containing a rotating drum, the operation of which
would result in the mixing of this composition and the resultant production of
cement, the idea being that the cement is produced on the journey taken by the
vehicle from this cement-mixing plant to the site where the cement is required.
The hopper is
constructed, as I have said, with four compartments, and these are designed to
contain the appropriate quantities of coarse aggregate and fine aggregate.
Although there is not a total measure of agreement between Mr Cope (who does
not claim to have any expertise in relation to the manufacture of cement) and
Mr Mundy (who has a degree of experience connected with that operation), I have
had little difficulty in coming to certain broad conclusions as to the nature
of the cement-making process and how it would be proposed to be carried out
with the use of the cement-making machine at Blaengwynlais quarry.
The
proportions in which aggregate and cement are mixed depend upon the purpose for
which the concrete which is to be produced by the mixture is required. The
richest and, as I understand it, strongest mixture is one in which the
proportions of coarse aggregate, fine aggregate and cement are as 3 is to 1 1/2
is to 1, and as the proportions of aggregate to cement are increased, the concrete
loses structural strength.
and 1 part of cement, which is a mixture of a kind producing concrete suitable
for road building and not for structural purposes. So far as structural cement
is concerned, there is, according to Mr Mundy–and I accept his evidence on
this–a rule under which you should not have a higher proportion of fine to
coarse aggregate than 1 to 2. The fine constituents of the stone aggregate to
be used in the concrete mixture can comprise sand or can comprise limestone
fines, which can be produced at the quarry. It is a general rule, although one
which admits of exceptions, that for structural purposes–that is, for the
production of concrete to be used for structural purposes–there should be, so
far as the fine content of the mixture is concerned, 50 per cent of sand and 50
per cent of limestone fines. The upshot is, however–and I so find–that the
concrete could be mixed in this concrete mixer and could be produced from stone
from the quarry either in the form of coarse aggregate or in the form of
limestone fines, the latter being such as would pass through a quarter-inch
mesh, and the proportion of material from the quarry would be 70 per cent of
the total material used in the production of concrete. That would be so
whatever the nature of the mix was, provided that at least 50 per cent of the
fine content of the mixture was stone from the quarry in the form of limestone
fines.
I have also
heard evidence as to the number of quarries in South Wales where there are
installed machines either similar to the ready-mixed concrete plant which I
have already mentioned or of a different nature; that is, coating plants which
are used for the production of coated road stones.
I am satisfied
that there are numerous quarries in South Wales which have ready-mixed concrete
plants. They are listed in the exhibit P1, which was produced by the plaintiff
council, by the witness Mr Cope, but elicited in the course of cross-examination
by Mr Glidewell for the defendant company, and on which Mr Mundy made a number
of comments, the upshot of which is that rather more than the quarries listed
as having neither ready-mixed concrete plants have them. This is because,
according to Mr Mundy, a number of the quarries listed as having neither
ready-mixed concrete plants nor coating plants in the exhibit P1 have
got such plants. There are at least two which had; and Mr Mundy’s evidence also
dealt with the reasons why some others would not require to have them. For
example, two quarries supply stone directly to British Steel, and another three
are quarries operated in connection with cement works owned by the quarry
owners.
I do not
consider, however, that that evidence assists me to resolve the question which
is raised by the originating summons, although it throws a good deal of light
upon the reason why the question arises. I am satisfied that it is no doubt
commercially desirable to have a ready-mixed concrete plant associated with the
operation of a quarry, and that emerges, if for no other reason, from the
circumstance that the demand for raw limestone is a fluctuating demand, which
at this present juncture appears to be not great. Consequently it is, as a
matter of commercial prudence, desirable to have some mode of marketing the
quarry production that does not depend upon a demand for raw limestone, and one
such mode is to use the production of the quarry in the production of concrete.
Mr Mundy told me that for some time past, because of the lack of demand for raw
limestone and because no concrete-mixing plant has been in operation at
Blaengwynlais quarry, the quarry production has simply been stockpiled.
I turn to
consider the provisions of paragraph 2 of Class XIX of the General Development
Order. That permits, as I have already noted, the erection, alteration or
extension by mineral undertakers, and it is common ground that the defendant
company are mineral undertakers as defined in article 2 of the order; and the
erection is permitted on land in or adjacent to and belonging to a quarry or
mine comprised in their undertaking. No question arises as to compliance with
that part of the provision because the proposal is that the ready-mixed
concrete plant should be erected on part of the quarry, which clearly is
comprised in the defendant company’s undertaking at Blaengwynlais. What is
permitted to be erected is any building, plant or machinery, or structure or
erection of the nature of plant or machinery. Again, there is no question
between the parties but that the proposed erection is an erection of plant.
Furthermore, it is not contended that the ready-mixed concrete plant is plant
required in connection with the winning or working of the limestone. Moreover,
it is the case that the quarry limestone is limestone which has been won or
worked in pursuance of permission granted or deemed to be granted under Part
III of the statute.
The question
then is that which is raised by the final words of paragraph 2 before one comes
to the proviso. Is the plant required ‘in connection with the treatment or
disposal of such minerals’; that is to say, of the limestone won and worked at
Blaengwynlais quarry?
I have been
referred to the decision, both in the court of first instance–that is, the
decision of Goulding J–and in the Court of Appeal, in the case English Clays
Lovering Pochin & Co Ltd v Plymouth Corporation, reported at
first instance in [1973] 1 WLR 1346 and also [1973] 2 All ER 730, and in the
Court of Appeal at [1974] 1 WLR 742 and also in [1974] 2 All ER 239. That case,
however, was not concerned with the question raised in these proceedings as to
whether the plant in question is required in connection with the treatment or
disposal of the minerals won or quarried, but with a question arising under the
provisions corresponding to paragraph 2, class XIX, of the 1977 order, as to
whether the situation on which the proposed works were to be carried out was
part of the quarry or site on which the mining operations were carried on, or
could be described as land belonging to the quarry and adjacent to it.
Mr Glidewell
referred me to what was said by Goulding J at [1973] 2 All ER at p 737, letter
E, in relation to the question of what constitutes treatment of the minerals:
After
considering all that authority and argument, I remain persuaded that I have to
apply the ordinary interpretation of language and I remain of opinion that the
essential idea in the term ‘winning or working of minerals’ as it appears in
item 2 of class XVIII is that of the extracting or separation of raw mineral
from the solid earth in which it occurs. What is done afterwards may be called
cleaning or dressing or treatment or refining, or some other appropriate term
according to circumstances, but it is not, in my judgment, within the ordinary
meaning of the words ‘winning or working of minerals.’ My interpretation of the words is
strengthened by the distinction which is made in the Development Order itself
between winning or working on the one hand and treatment or disposal of the
same minerals on the other.
I pause there
to say that the reason for the distinction between winning or working, on the
one hand, and treatment or disposal, on the other, appears to me to be that the
reference to ‘winning or working’ is qualified by the words ‘in pursuance of
permission granted under Part III of the Act,’ because paragraph 2 of class XIX
only applies where the winning or working has been lawfully carried out in
accordance with the planning legislation, and it is only minerals that have
been won or worked in that lawful manner that are dealt with when the paragraph
goes on to refer to requirements in connection with the treatment or disposal
of such minerals.
In the Court
of Appeal Russell LJ, who gave the judgment of the court, at [1974] 2 All ER p
243 deals with the words ‘winning or working’ and says this:
It is perhaps
not necessary to be dogmatic on the point in this case: but our present view is
that to ‘win’ a mineral is to make it available or accessible to be removed
from the land, and to ‘work’ a mineral is (at least initially) to remove it
from its position in the land: in the present case the china clay is ‘won’ when
the overburden is taken away, and ‘worked’ (at least initially) when the water
jets remove the china clay together
earth or land to a situation of suspension in water. Thereafter it may be that
the processes of separation out are more aptly described as treatment.
That case was,
of course, concerned with the extraction and disposal of china clay, and the
point there in question concerned the situation and not the nature and purpose
of the proposed structure. As a result, I do not find great assistance from the
decision in the English Clays case in resolving the question with which
I have to deal. On that question I am told that there is no authority.
The words
which I have to construe are ‘which is required in connection with the
treatment or disposal of such minerals.’
In my judgment, ‘required’ does not there mean necessarily required in
the sense that the plant is a sine qua non for the treatment or for the
disposal of the minerals in question.
It is
submitted by Mr Glidewell for the defendant company that ‘required in
connection with’ means no more than ‘will be useful in,’ or ‘will assist in’
the treatment or disposal. Mr Harrison, for the plaintiff council, submits that
it means ‘reasonably required,’ and that it does not mean either needed as a sine
qua non or the same as ‘will be useful in’ or ‘will assist in’ the
treatment or disposal.
In my
judgment, ‘required’ means ‘reasonably required,’ and, furthermore, that in
determining whether it is reasonably required, regard has to be had to the
nature of the minerals which have to be treated and disposed of and the
circumstances in which the treatment or disposal has to be carried out.
Mr Glidewell,
although submitting that the ready-mixed concrete plant was required in
connection with the treatment of the limestone, put his submission mainly, I
think, on the basis that it was required in connection with the disposal of
that mineral. He summarised his submission very helpfully in these four
propositions:
(1) The process carried out by the proposed
batching plant (which I have been referring to as the ready-mixed concrete
plant) will properly be described as the disposal and possibly the treatment of
the mineral won and worked in the quarry.
(2) The addition to that mineral of smaller
quantities of sand and cement does not alter the nature of the process carried
out by the plant.
(3) If the word ‘required’ in class XIX,
paragraph 2, imports an element of necessity, then in this case the evidence of
demand for stone mixed with other materials to become concrete and of lack of
demand for raw stone satisfies such requirement.
(4) As an alternative to (3)–and I think this was
the main way he put it–he submitted that one should look at the whole phrase
‘required in connection with’ and that that meant no more than will be useful
in or will assist in, and he submitted that the plant in question would be
useful in or would assist in the treatment of the stone.
I have already
indicated my view as to the fourth proposition. So far as the third proposition
is concerned, that ‘required’ imports an element of necessity, I have also
indicated my views on that. I would add only this, that ‘which is required in
connection with the treatment or disposal of such minerals’ does not, in my
judgment, mean ‘which is required as a matter of commercial necessity’ or
‘business prudence,’ nor indeed are these words to be equated with something to
the effect of ‘which is desirable as a commercial matter in connection with the
treatment or disposal of such minerals.’
I turn then to
the first two propositions, the first, that the process carried out by the
proposed batching plant will properly be described as the disposal and possibly
the treatment of the mineral won and worked in the quarry. In my judgment, the
operation of this ready-mixed concrete plant cannot properly be regarded as an
operation which effects treatment of the limestone which would be intended to
be loaded into the hopper which is part of the plant. The loading of coarse and
fine limestone into that hopper does not, in my judgment, as a matter of the
ordinary use of the language, amount to treatment of the limestone except in
the very general sense that to deal with any material in any way is to treat it
in that manner. But ‘treatment’ in paragraph 2 of class XIX means something, in
my judgment, more than merely dealing with or handling, or anything of that
kind. It conveys to my mind the suggestion that the mineral is to be dealt with
in some manner which changes its quality, its nature or size, or something of
that kind. The mere movement of the mineral is not, in my judgment, treatment
of it; and all that happens, in my judgment, to the limestone, so far as the
plant is concerned, is that it is moved by being put in the hopper, carried on
the conveyor belt, dealt with by the silo and discharged into the lorry containing
the revolving mixing drum.
The second
proposition, that the addition to the mineral of smaller quantities of sand and
cement does not alter the nature of the process carried out by the plant, I
consider in relation to the first proposition, so far as it is that the process
carried out by the plant can properly be described as disposal of the
limestone. In my judgment, ‘disposal’ in paragraph 2 means the physical removal
of the limestone from the quarry or the land adjacent thereto where the
minerals have been won, worked and treated. Now, in that sense, the ready-mixed
concrete plant is involved in the process of disposing of the limestone,
because at the beginning of the operation in which the plant is used, the
limestone is situated in the quarry or the land occupied with the quarry, and
when the operation has been completed, the limestone is in a lorry or truck,
ready to be physically removed from that land. It would, however, in my
judgment, be difficult to say that a plant carrying out the various functions,
which this ready-mixed concrete plant was intended to effect, was reasonably
required merely to effect the physical removal of the limestone from the quarry
or the land in which the limestone had been treated. The plant clearly does
something more than merely physically remove it. It also effects the mixing of
the coarse and fine limestone with cement, or possibly with sand and cement.
It is
submitted, as Mr Glidewell’s second proposition, that the addition of smaller
quantities of sand and cement–smaller, that is, than the quantity of
limestone–does not alter the nature of the process carried out by the plant. I
accept that it does not alter the fact that the process, so far as it affects
the limestone, of disposing of limestone in the sense of removing it from the
quarry is not affected by the fact that other materials are at the same time
physically removed.
I consider
that it is necessary to ask the question which Mr Harrison submitted was the
question that I should ask: what is the purpose of the plant? Is it required in connection with the
disposal or, for that matter, the treatment of the limestone, or for some other
purpose? I am unable to avoid the
conclusion that the purpose of the plant is to produce ready-mixed concrete,
and what it is required for is neither the treatment of the limestone nor the
disposal of the limestone but the production of a mixture of limestone and
possibly sand, and certainly cement with water, which will produce ready-mixed
concrete. The plant is, in my judgment, required neither in connection with the
treatment of the limestone nor in connection with the disposal of it but in
connection with the utilisation of the limestone. Paragraph 2 of class XIX does
not, in my opinion, permit, without planning permission, the erection of a
plant which is required for the utilisation of the minerals that have been won
and worked in the quarry in question. The paragraph permits such development
only where the plant is required in connection with the treatment or disposal
of such minerals. That the utilisation of the limestone by being put into the
hopper of the plant may result in its disposal in the sense of its removal from
the quarry and the adjacent land does not mean, in my judgment, that the
plant is required in connection with the disposal of the limestone.
Accordingly,
in my judgment, the question raised by the originating summons and remaining
for disposal–that is to say that the provisions of article 3 and class XIX(2)
of Schedule I to the Town and Country Planning General Development Order do not
permit the erection of the plant in question at Blaengwynlais quarry–is to be
answered ‘Yes.’ These provisions do not,
in my judgment, permit the erection of that plant without the permission of the
planning authority or the Secretary of State.
The judge made
a declaration that the provisions of article 3 and class XIX(2) did not permit
the plant in question to be erected in the quarry without planning permission
granted by the plaintiff planning authority or the Secretary of State. The
parties having agreed on costs, no order was made.
