by Patrick Robinson
Landowners may be totally unaware that their land benefits from valuable planning permissions to extract minerals. Conversely, home owners may have unwittingly bought houses close to land which may be used for quarrying at any time. In this article we look at a legal anomaly which has existed for over 40 years, and has been highlighted by the Planning and Compensation Act 1991.
Faced with an acute need for building materials for post-war reconstruction, in 1948, when the modern system of planning controls was introduced, the then Government made a special case for holders of permissions to extract minerals under the pre-war interim development order (IDO) system. They were exempted from the need to reapply for consent under the new system. These war-time permissions allowed minerals to be extracted under a regime which appears very lax by today’s standards.
A number of these permissions still survive, specifically those granted under an interim development order in the five years between July 22 1943 and July 1 1948. To continue in force there must have been some work at these sites begun between July 1 1948 and April 1 1979. Although the problem has existed since 1948, it is only now, with the Government’s commitment to protecting the environment, that the political climate has been right to grasp the nettle and deal with IDO permissions once and for all. It is also true that the problem has become more acute as the demand for minerals increased dramatically during the 1980s, by which time many IDO permissions were long forgotten.
The Planning and Compensation Act 1991 will require all IDO permissions to be registered with the county council within six months. If not they lapse and cannot subsequently be revived. If permission is lost in this way, no compensation will be paid. A date for the start of the six months’ period is not yet fixed, but it is expected to be at the end of September 1991. Anyone who considers that he may have an IDO permission on his land should take steps immediately if he wishes to register it as there is unlikely to be any extension of the six-month time-limit for late applications.
If an IDO permission can be proven, the county council can require that it becomes subject to conditions and a proper scheme of working, although the DOE has said that those conditions will not be of a type that would affect the asset value of the site.
It will not be an easy task identifying the location of IDO permissions. The problem is that there never was a central register of IDO permissions and, in the rush to promote post-war reconstruction, the Government imposed no new requirement to register those existing IDO permissions which it was allowing to remain in force with any central authority, so there is little or no information on them. The Government admits that those records which do exist may well be inaccurate. It is for this reason that landowners having purchased since the war may be unaware of rights that they possess or of rights that exist nearby and which would have a severe effect on them. So far as proof is concerned, obviously documents providing evidence of the grant of permission would be ideal. The burden of proof falls on the landowner. It is up to him to prove that he has an IDO permission. It is not the duty of the planning authority to produce evidence to disprove this.
The IDO permission would have been evidenced by some written permit, but if this still exists it would be retained by the landowner rather than any central authority. It may well be that these largely forgotten documents still exist in the hands of present or past landowners, perhaps tucked away and forgotten with old title deeds and documents.
The Department of the Environment has said that it considers the best proof to be documentary evidence of the grant of permission. It is committed to taking a tough line with these permissions and does not want to see spurious claims backed up by inadequate evidence. The DOE reports that it has already identified a number of forgeries of these documents and that it will be on the look out for more.
Bearing in mind the value of a permission and the fact that the landowner receives no compensation if the DOE decides that its existence has not been proved, it would be wrong for the department to prejudge the evidence to be considered acceptable and set an arbitrary requirement for documentary evidence. Indeed, the DOE is not ruling out the possibility that claims may be substantiated without documentary evidence. In cases where no documents exist to evidence the IDO permission, it may simply be a case of landowners/tenants remembering that permission was granted during or just after the war.
Physical evidence of past quarrying on land, or on OS maps, may also be a starting point for investigation.
A further clue may be that these minerals were needed for post-war reconstruction, which was concentrated on bomb-damaged cities. Given the constraints on transport at that time, the sites are likely to have been located near the centres of demand for aggregates on the perimeter of those cities being rebuilt.
The six months’ time-limit, which is about to begin almost immediately, has taken a lot of people by surprise. There is very little time for landowners to undertake the substantial historical research which may be necessary.
Landowners would be well advised to register their claim that they have an IDO permission on whatever evidence they have to hand before the end of the six-month period. They can then continue their research, gathering additional evidence without the risk of running out of time.
As environmental concerns mean ever tighter controls on grants of new permissions for mineral extraction, a landowner realising he has planning permission to quarry would be discovering an extremely valuable asset. This value can be enhanced by the Government’s forecasts that aggregate demand will continue rising well into the next century and the opportunities which are likely to arise for waste disposal following completion of the extraction process.
