Town and Country Planning Act 1971–Enforcement notice–Alleged tipping of unauthorised materials in quarry–Permission in 1950 to tip subject to local authority’s surveyor approving materials to be deposited–No materials prescribed by surveyor, but some specified in letter from planning officer in 1976–Restriction of materials challenged by appellants but enforcement notice upheld by Divisional Court
This was an
appeal by John Francis Bilboe (senior) and John Francis Bilboe (junior) against
a decision of the Secretary of State for the Environment to uphold an
enforcement notice served by the West Lancashire District Council on the
appellants in April 1976 alleging breach of planning control by tipping at
Sandfield Quarry, Long Lane, Aughton. The issue was whether the materials
permitted to be tipped were restricted to sand, soil, rock and clay.
Iain Glidewell
QC and James Gilliland (instructed by Brown, Turner, Compton, Carr & Co,
agents for Russell & Sutton, of Southport) appeared on behalf of the
appellants; R Seabrook (instructed by the Treasury Solicitor) represented the
Secretary of State; and R B Martin QC and Miss Cherie Booth (instructed by the
solicitor and chief executive to West Lancashire District Council) represented
the district council.
Giving
judgment, LORD WIDGERY CJ said that the quarry in its heyday was used for the
getting of some form of minerals, but in its latter days as a potential tip for
rubbish, a use which the local authority regarded as detrimental to amenities.
Application
for planning permission for its use as a tip was made as long ago as February
1950. The application was granted by the local planning authority subject to
two conditions: that the council’s surveyor should approve the material to be
deposited and that no material of an obnoxious nature, or likely to give rise
to overheating, fumes or smell, was to be deposited. The main contention turned
around the meaning and effect of the first condition.
In 1975 the
present appellants were interested in purchasing the land and showed further
interest in its potentiality for use for the purpose of tipping. No specific
formal selection by the surveyor as to the materials to be tipped had been made
and no written authority to use it for any particular material had been brought
to light by this time. In February 1976, in reply to a letter, the director of
planning for West Lancashire District Council wrote to the appellants’
solicitors that the only materials which he was prepared to approve were sand,
soil rock and clay, and he would consider the depositing of any other materials
as a breach of planning control.
A local
inquiry was held, as a result of which the Secretary of State concluded that
the materials to be tipped in the quarry were restricted to those specified in
the planning director’s letter. Nobody could find a piece of paper other than
that letter which specifically defined which materials could be tipped.
Mr Glidewell
argued that dumping had been going on in the quarry for many years, so that one
would assume that it was done with lawful authority, and, since the only person
able to give such authority was the surveyor, one must assume that he gave it.
His Lordship would be inclined to go along with that argument if no alternative
presented itself on the evidence; but one did not have to use the presumption
if there were any alternative explanations for the tipping. There were a number
of factors which suggested that the tipping in
tipping was carried out both before and after the 1950 permission. If it had
been associated with the permission, it would obviously have followed it but
not preceded it. That, by itself, might be only a straw in the wind, but there
were other straws.
The Secretary
of State was not bound, in his Lordship’s view, to adopt the view that there
must have been some formal consent given by the local authority. There were
many other possibilities whereby tipping might have taken place quite
independently of such consent.
Mr Glidewell
also raised a point on section 87 of the Town and Country Planning Act 1971.
There were a number of tippings after 1950 (after the grant of planning
permission, and indeed after 1964) which, in his Lordship’s view, were tippings
not authorised by the permission. But Mr Glidewell did not succeed by showing
that some of the unauthorised tippings were made before 1964, because a very large
number must have been put on the ground since 1964, and in that situation the
local authority could proceed in respect of the infringements after January 1
1964, notwithstanding that they were powerless in respect of anything which
happened before that date. His Lordship did not subscribe to the view that, if
there were a certain number of breaches before 1964, this necessarily prevented
the local planning authority from proceeding in respect of breaches thereafter.
Mr Glidewell
had also argued that, in view of ‘guidelines’ given by the council in 1975 that
‘suitable material’ for tipping should include inert builder’s rubble, brick,
etc (following which guidelines the Bilboes bought the land), the local
planning authority was estopped from asserting that the tipping by the Bilboes
was a breach of planning control. His Lordship did not think there was here
even the beginning of an estoppel.
MILMO and
TUDOR EVANS JJ agreed.
The appeal
was dismissed with costs, the maximum liability of Mr Bilboe senior being
assessed at £253.50, and the liability of Mr Bilboe junior at nil.
