Town and country planning — Interim development order — Extraction of gravel — Statutory conditions imposed when granting permission — Mineral planning authority seeking to restrict length of permission — Whether authority entitled to limit permission — Planning and Compensation Act 1991 — Claim allowed
In June 1946, planning permission was granted to the claimant under an interim development order (IDO) for gravel extraction at a site in Newbury. The IDO permission was an old mining permission within section 22 of, and Schedule 2 to, the Planning and Compensation Act 1991. Schedule 2 provided a statutory code for the determination and registration by the mineral planning authority of the conditions to which an old mining permission was to be subject. Upon final determination of such conditions, the old mining permission took effect as if granted upon the terms registered in accordance with Schedule 2. By virtue of para 2(1)(c) of Schedule 2, such conditions had to include a condition that the winning and working of minerals or depositing of mineral waste were to cease not later than 21 February 2042.
The consent held by the claimant was registered in September 1992, under Schedule 2, to prevent it from lapsing. In November 1995, an application was submitted for determination of conditions for continued use of the site. By condition 1, the second defendant council provided that the extraction of gravel should cease on or before 30 September 2000. All restoration operations, including removal of all plant, buildings, hardstanding and access roads, but excluding after-care and drainage, were to be completed by 30 September 2001.
In October 1999, the claimant applied to vary condition 1, pursuant to section 73 of the Town and Country Planning Act 1990, to extend the period for the cessation of gravel extraction until 30 September 2002 and for restoration to 30 September 2003. Following the failure of the council to determine the application, the claimant appealed to the first defendant Secretary of State. The council subsequently indicated that they would have refused the application. The inspector refused the claimant’s application and dismissed its appeal. The claimant brought proceedings under section 288 of the 1990 Act to challenge that decision.
Held: The claim was allowed.
1. The inspector had erred in law in failing to take into account the effect of para 2(1)(c) of Schedule 2 to the 1991 Act and the fact that the council had no power to limit the duration of the IDO permission as they had purported to do by imposing condition 1. There was no discretion in para 2(1)(c) for mineral planning authorities to reduce the period from 2042 without payment of compensation. Mineral planning authorities were only authorised to specify longer or shorter periods for extraction in relation to permissions granted after 1982 following the enactment of the Town and Country Planning (Minerals) Act 1981.
2. Furthermore, no shorter period could be imposed under paras 2(1)(a) or (b) of Schedule 2, because duration was specifically dealt with by para 2(1)(c). The condition contained therein had to be imposed and there was no power to impose conflicting conditions.
David Holgate QC and David Forsdick (instructed by Veale Wasbrough Lawyers, of Bristol) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; Timothy Straker QC and Andrew Tabachnik (instructed by Lester Aldridge, of Bournemouth) appeared for the second defendants, West Berkshire Council.
Eileen O’Grady, barrister
