Planning permission — Extraction of sand and gravel — Agricultural land — Plan for infilling of site — Acceptance subject to condition for further tests — Whether tests might result in different proposal — Whether agricultural land “best available” in planning area — Whether inspector’s reasoning adequate — Whether purported conflict of wording between local development plan and circular — Whether question of construction properly resolved by judge at first instance — Appeal on condition dismissed — Appeal on judge’s construction allowed
In 1987 Pioneer Aggregates applied to Warwickshire County Council for planning permission for the extraction and processing of 2.67m tonnes of sand and gravel over about 11 years from part of 90.5 ha of land at Wasperton Hill Farm, Wasperton, Warwickshire. The application described the land as “agriculture, nature reserve” and stated there was to be progressive restoration using on-site materials. Planning permission was refused on the ground, inter alia, that the proposed development “would involve the taking of high-grade agricultural land which could not be restored to its pre-existing condition”.
Pioneer appealed against the refusal to the Secretary of State for the Environment, who appointed an inspector. He recommended that the appeal should be allowed and permission granted subject to conditions. A condition was that as part of the site would eventually be below the water table two lakes should be created. It stipulated that the operators should carry out tests to ensure that the supply of water would be sufficient for the lakes; if, however, there was insufficient water, then an alternative restoration scheme was to be submitted. When the Secretary of State accepted the recommendation, C, who was the tenant farmer of Wasperton Hill Farm, applied to the High Court to quash the decision. On dismissal of his application C appealed. He had two main grounds of challenge.
1. The Secretary of State had no power to impose a condition in relation to the restoration and after use of the land, particularly as there was an opening left for an alternative scheme, which might not accord with the detailed provisions of the application and accompanying plan and might involve the importation of material from outside the site.
2. The Secretary of State had failed to apply policy G4 of the local structure plan with regard to agricultural land.
At first instance, in addressing both of C’s arguments, the judge stated that the condition should be construed in the context of the application and be limited to one that did not involve a substantial departure from the proposal submitted by Pioneer. On the second submission, he held that there was a conflict between the Secretary of State’s letter approving the structure plan and policy G4 and that the inspector had failed to deal with the issue adequately. However, he went on to decide that policy G4 had to be read subject to Circular 16/87. Para 4 of the circular declared that the best and most versatile land should not be built on unless there was no further site suitable for the particular purpose. In many parts of the country, where there was no Grade 1 or 2 land, Grade 3A land would represent the best and most versatile land available. Policy G4 stated that where agricultural land was used, the best and most versatile land — which in Warwickshire included Grade 3A in addition to Grades 1 and 2 — should not be built on unless there was no other site available for the particular purpose.
Held The appeal was allowed in part.
1. The condition was part of a clearly worded permission which specifically referred to the application and attached plan.
2. If an alternative restoration scheme were to be submitted which was not within the ambit of that application and plan, then it would not be a scheme which fell within the meaning of the condition.
3. In particular, the application specifically stated that the scheme of restoration would be carried out with on-site materials. It followed that any scheme which involved importing material from outside the site would be outside the scope of the application and would not be a scheme to which the planning authority could validly agree as being within the condition.
4. Policy G4 had laid down a presumption against development of higher grades of agricultural land. It was agreed that that presumption applied equally to development by mineral working which caused an irreversible loss of agricultural land as it did to development by building.
The inspector, having heard arguments on whether policy G4 applied only where there was no Grade 1 or 2 land, failed to consider whether there was any alternative site of lower agricultural quality suitable for sand and gravel extraction. The Secretary of State in his decision letter did not refer to the issue at all so he was to be taken as having endorsed the inspector’s views.
5. However, policy G4 did conform with the provisions of Circular 16/87 provided that it was not read as meaning that Grade 3A land could only be considered among the best and most versatile land available where there was no Grade 1 or 2 land. The circular was expressed in sufficiently wide terms to enable each authority to define what in their area was the best and most versatile land and, no doubt, this would depend upon the percentage of land in the county which was a higher grade. In Warwickshire Grade 3A was included in the category.
6. The judge was therefore wrong to decide that policy G4 was to be read as having a meaning which its words did not bear because of an apparent conflict with Circular 16/87. It followed that the Secretary of State’s decision was to be quashed.
John Taylor QC and Sebastian Head (instructed by Herbert Smith) appeared for the appellant; Guy Sankey (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Michael Harrison QC and Keith Lindblom (instructed by Dennis Faulkner & Alsop, of Northampton) appeared for Pioneer Aggregates.
