Enforcement — Breach of planning control — Mining operations — Planning permission granted in 1947 — Tipping operations granted planning permission in 1957 — Mining operations recommenced in reliance of 1947 permission — Whether 1947 permission extinguished or abandoned — Effect of later permission
The second respondents, Tarmac Roadstone
Holdings Ltd, are the owners of a site at Ferryhill Station, Durham. In July
1947 Sedgefield Rural District Council granted planning permission for the
development of the land and buildings at the site for the purpose of a
quarrying undertaking. That permission was subject to a condition as to the
restoration of the site. Quarrying of sand and gravel continued until September
1956. In November 1957 the appellants, Durham County Council, granted planning
permission to the Sedgefield Rural District Council for the change of use of
the site ‘from sand quarry to controlled tip for refuse’. The district council
took a lease of the site, and by that lease were entitled both to work sand and
gravel and to tip. Apart from the removal of 12,000 tons of sand in the period
1972-73, the district council used the site for tipping. By 1976 42% of the
site had been tipped and tipping operations ceased.
The second respondents acquired an
interest in the site in 1982 and an application for quarrying was dismissed by
the Secretary of State for the Environment on appeal in January 1984. After
first becoming aware of the 1947 permission in July 1984, the second
respondents began extraction operations in July 1986 in reliance of the 1947
permission. On July 20 1986 the appellants issued an enforcement notice
alleging a breach of planning control. In allowing the second respondents’
appeal on ground (b) in section 88(2) of the Town and Country Planning
Act 1971, the Secretary of State accepted that the 1947 permission has not been
extinguished or otherwise brought to an end. The appellant county council
appealed against that decision under section 246 of the 1971 Act, and that
appeal was dismissed by Mr Lionel Read QC, sitting as a deputy judge of the
Queen’s Bench Division.
The appeal was dismissed.
The 1947 permission was for operational
development. The question for consideration is: is it possible to carry out the
development covered by the permission having regard to that which has been done
or authorised to be done under a later permission which has already been
implemented?: see p 108B-G.
The Secretary of State had correctly
applied the test in Pilkington v Secretary of State for the
Environment [1973] 1 WLR 1527 to the facts and was entitled to find that
the extraction of sand and gravel from areas covered by subsequently tipped
material and natural overburden would be both practicable and viable, and
accordingly the 1947 permission was still capable of being implemented: see pp
108H-109.
Cynon Valley Borough Council v Secretary of State for
Wales (1986) 85 LGR 36; 53 P&CR 68; [1986] 2 EGLR 191: 280 EG 195:
[1986] JPL 760, CA
Jennings Motors Ltd v Secretary of State for
the Environment [1982] QB 541; [1982] 2 WLR 131; [1982] 1 All ER 471;
(1982) 80 LGR 226; 46 P&CR 316; [1982] EGD 1186; 261 EG 994, [1982] 1 EGLR
166; [1982] JPL 181, CA
Newbury District Council v Secretary of State for
the Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731;
(1980) 78 LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Pilkington v Secretary of State for the
Environment [1973] 1 WLR 1527; [1974] 1 All ER 283; (1973) 72 LGR 303; 26
P&CR 508; [1974] EGD 787; 230 EG 1737, DC
Pioneer Aggregates (UK) Ltd v Secretary of State for
the Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984)
82 LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183;
[1984] JPL 651, HL
Thomas David (Porthcawl) Ltd v Penybont Rural District
Council [1972] 1 WLR 1526; [1972] 3 All ER 1092; (1972) 71 LGR 295; 24
P&CR 309, CA
Young v Secretary of State for the
Environment (1983) 81 LGR 389; 47 P&CR 165, CA; [1983] 2 AC 662; [1983]
3 WLR 382; [1983] 2 All ER 1105; (1983) 81 LGR 779; 47 P&CR 177; [1984] EGD
1030; 269 EG 219, [1984] 1 EGLR 166, HL
Appeal against a decision of Mr Lionel
Read QC
This was an appeal against a decision of
Mr Lionel Read QC, sitting as a deputy judge of the Queen’s Bench Division
(November 16 1988), dismissing an appeal by the appellants, Durham County
Council, under section 246 of the Town and Country Planning Act 1971 against a
decision of the first respondent, the Secretary of State for the Environment,
allowing an appeal against an enforcement notice issued by the appellants.
Pritchard, for the solicitor to Durham County Council) appeared for the
appellants.
Treasury Solicitor) appeared for the first respondent, the Secretary of State
for the Environment.
(instructed by Herbert Smith) appeared for the second respondents, Tarmac
Roadstone Holdings Ltd.
NEILL LJ: This is an appeal by Durham County
Council (the ‘council’) from the order of Mr Lionel Read QC (sitting as a
deputy judge of the Queen’s Bench Division) dated November 16 1988 dismissing
an application by the council brought pursuant to section 246 of the Town and
Country Planning Act 1971 (the ‘1971 Act’). The application by the council was
for an order to remit to the Secretary of State for the Environment (the first
respondent) for rehearing and determination a decision given by the Secretary
of State by a letter dated March 14 1988 under section 88 of the 1971 Act.
The decision given by the Secretary of
State was on an appeal brought by Tarmac Roadstone Holdings Ltd (the second
respondents, whom I shall call Tarmac) against an enforcement notice dated July
25 1986 served by the council under section 87 of the 1971 Act. The enforcement
notice alleged a breach of planning control by the unauthorised extraction of
sand and gravel from land at Ferryhill Station, Durham, and required the
cessation of such extraction and the reinstatement of the land to its former
condition.
On receipt of the enforcement notice
dated July 25 1986 Tarmac appealed to the Secretary of State pursuant to
section 88(2)(b) and (g) of the 1971 Act. The Court is concerned
only with the appeal under section 88(2)(b).
The ground of appeal under para (b)
was that the matter alleged in the enforcement notice did not constitute a
breach of planning control.
On June 2 1987 an inquiry was held at
County Hall, Durham, by one of the Secretary of State’s inspectors. The
inspector reported to the Secretary of State on December 3 1987. The Secretary
of State in his decision letter dated March 14 1988 allowed the appeal by
Tarmac.
The enforcement notice related to an area
of land about 4.75 hectares lying to the south of Gladstone Terrace at
Ferryhill Station.
In June 1947 an application was made to
the Sedgefield Rural District
Ferryhill for permission to continue to work the minerals at the Ferryhill sand
and gravel quarry. On July 26 1947 permission was given by the Sedgefield Rural
District Council. The permission related to ‘the development of the land and
buildings at Ferryhill for the purpose of quarrying undertaking’. Three
conditions were imposed of which it is necessary to refer to only one:
2. Any top soil or vegetative overburden
to be put at one side and restored on the worked out area as work proceeds. The
restored surface to be left to a reasonably level or even surface and in a
state fit for cultivation.
Following the grant of the 1947
permission, quarrying continued on the land at Ferryhill until about September
1956.
In October 1957 Sedgefield Rural District
Council applied for planning permission to develop the land by changing the use
of it ‘from sand quarry to controlled tip for refuse’. It was stated in the
application form that the then use of the land was as a ‘derelict sand quarry’.
On November 13 1957 Durham County Council
granted the application for the change of use of the land ‘from disused sand
pits to controlled tip for household refuse’. The permission was granted
subject to two conditions. The second condition was in these terms:
That any hollows due to subsidence of
filled areas shall be levelled up and the final surface of the whole area shall
be compacted, soiled and finished to even gradients permitting natural
drainage.
It was stated that the reason for
imposing this condition was ‘to permit alternative use of the site after
tipping’.
In January 1958 the firm which had
carried out the quarrying on the land between 1947 and 1956 surrendered its
lease with effect from November 11 1957. On September 24 1958 a new lease of
the land was granted to Sedgefield Rural District Council. This lease was for a
term of 21 years from February 1 1958. Under the lease Sedgefield Rural
District Council was given the right both to work the sand quarry and to use
the land for controlled tipping.
Tipping on the land continued until 1976.
It does not appear, however, that at the inquiry before the inspector there was
any evidence of the working of the sand quarry other than evidence to the
effect that in the period 1972 to 1973 Sedgefield Rural District Council
removed about 12,000 tons of sand from the site.
In 1980 the district council, which was
the successor to the Sedgefield Rural District Council, was released from its
obligations under the lease.
By the time when the tipping operations
ceased in 1976 some 42% of the site which had been the subject of the 1947
permission had been tipped.
In 1982 Tarmac came on the scene. In that
year they applied for permission to extract sand and gravel on an area of land
of about 14.8 hectares including the land which had been the subject of the
1947 permission. This application, together with other applications, was
dismissed by the Secretary of State in January 1984. At that time, however,
neither Tarmac nor the council were aware of the existence of the 1947
permission. This earlier permission only came to the knowledge of the council
in July 1984.
On July 14 and 15 1986 Tarmac, after
having given notice to the council, began extraction operations on the land. On
July 25 1986 the enforcement notice was served.
Since then the case for Tarmac has been
throughout that they were entitled to rely on the planning permission granted
in 1947 and that this permission had not been extinguished or otherwise brought
to an end by the permission for the change of use granted by Sedgefield Rural
District Council in 1957. This
March 14 1988 reference was made to a number of decided cases including in
particular Pioneer Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132.
The letter continued:
As a result, on the basis of the House of
Lords ruling in Pioneer Aggregates that there is no principle in planning law
that a valid permission capable of being implemented according to its terms can
be abandoned, it is considered that, except in those types of cases already
mentioned above where it is accepted that one operational permission could
render another operational permission incapable of implementation, and that a
use permission would be spent once the change of use was complete, careful
consideration must be given as to whether a permission is still capable of
being implemented. In the present case, the use for controlled tip which was
the subject of the 1957 permission had ceased and it is considered that the
earlier 1947 permission for quarrying is still capable of being implemented.
Accordingly . . . the view is taken that when [Tarmac] began the activities at
which the County Council’s enforcement notice of July 25 1986 is directed,
those activities were authorised by the prior grant of planning permission in
1947 for quarrying on the land.
The council then applied to the High
Court for an order that the decision of the Secretary of State should be
remitted to him for rehearing and determination in accordance with the opinion
of the court.
The application by motion was heard by Mr
Lionel Read QC, sitting as a deputy judge of the Queen’s Bench Division on
November 14 and 15 1988. On November 16 1988 he gave judgment dismissing the
application but gave leave to the council to appeal to this court.
The case for the council
The case for the council was developed
before us on the following lines:
(1)
That the right to use land for a particular purpose, even where planning
permission had been granted for that use, may be lost in certain circumstances
by reason of subsequent events.
(2)
That development rights under a planning permission for operational
development are ended by the subsequent implementation of an inconsistent
permission for operational development. Thus, in Pilkington v Secretary
of State for the Environment [1973] 1 WLR 1527 it was held that the owner
of land who had built a bungalow on part of the land pursuant to planning
permission granted in October 1954 was not entitled to build another bungalow
on the same land pursuant to a previous planning permission which had been
granted to his predecessor in title in May 1953. At p 1532 Lord Widgery CJ put
the matter as follows:
One looks first of all to see the full
scope of that which has been done or can be done pursuant to the permission which
has been implemented. One then looks at the development which was permitted in
the second permission, now sought to be implemented, and one asks oneself
whether it is possible to carry out the development proposed in that second
permission, having regard to that which was done or authorised to be done under
the permission which has been implemented.
(3)
That development rights under a planning permission for change of use
are ended by the subsequent use of the land for a different purpose even though
permission has not been granted for this subsequent use.
In support of this proposition we were
referred to the decisions in Young v Secretary of State for the
Environment (1983) 47 P&CR 165, CA; [1983] 2 AC 662, HL; and Cynon
Valley BC v Secretary of State for Wales (1986) 53 P&CR
68. In the latter case it was held by the Court of Appeal that planning
permission which had been granted for the use of certain premises as a fish and
chip shop became ‘spent’ once a change of use to an antique shop had been implemented.
It followed therefore that the earlier permission could not be made use of to
validate the use of the premises for the sale of hot food.
(4)
That an existing use right comes to an end once a planning permission
has been implemented if the permission is for such a character of use as to
lead to what has been described as ‘the creation of a new planning unit’ or ‘a
new chapter in the planning history of the land’. In support of this
proposition we were referred to, inter alia, the decision in Newbury
District Council v Secretary of State for the Environment [1981] AC
578 and Jennings Motors Ltd v Secretary of State for the Environment
[1982] QB 541. It is not necessary in the present case to examine what
differences, if any, may exist between the theory of the ‘new planning unit’
and the theory of the ‘new chapter in planning history’. It is sufficient to
draw attention to the principles stated by Lord Lane in the Newbury District
Council case in relation to the second of these theories at p 626:
The holder of planning permission will
not be allowed to rely on any existing use rights if the effect of the
permission when acted on has been to bring one phase of the planning history of
the site to an end and to start a new one.
(5)
That there was no reason in principle why the implementation of a
permission for the change of use of land or the opening of a new chapter in the
planning history of the land should not bring to an end rights under an earlier
planning permission for operational development in the same way as such
subsequent events would extinguish existing use rights.
(6)
That the principles outlined above were consistent with the explanation
of the law given by Lord Scarman in the leading authority of Pioneer
Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
AC 132. In that case Lord Scarman examined at pp 143 to 145 the three classes
of cases in which the subsequent use of land can bring to an end existing use
rights or rights granted by a planning permission. The case was also authority
for the proposition that there is no principle in planning law that a valid
permission capable of being implemented according to its terms can be lost by
abandonment: see p 145G.
(7)
That in any event in the present case the subsequent use of the land for
tipping had made it impossible to implement the permission granted in 1947
according to its terms. In these circumstances the case fell within the
principles enunciated in Pilkington’s case (supra).
The case for Tarmac and the Secretary of
State for the Environment
It was argued on behalf of the
respondents to the appeal that the deputy judge had reached the right
conclusion in accordance with the decision of the House of Lords in the Pioneer
Aggregates case (supra).
As Lord Scarman pointed out in that case
at p 141, section 33(1) of the 1971 Act is of crucial importance. This section
is in the following terms:
Without prejudice to the provisions of
this Part of this Act as to the duration, revocation or modification of
planning permission, any grant of planning permission to develop land shall
(except in so far as the permission otherwise provides) enure for the benefit
of the land and of all persons for the time being interested therein.
It followed therefore that the 1947
permission continued to enure for the benefit of the land and thus for the
benefit of Tarmac unless and until this permission became incapable of being
implemented according to its terms.
relevant only to the question whether a particular use of land has ended. It
has no relevance to the question whether a permission for operational
development is or is not still in existence.
The present validity of the 1947 permission
It is necessary to turn first to section
22(1) of the 1971 Act, which is in the following terms:
In this Act, except where the context
otherwise requires, ‘development’, subject to the following provisions of this
section, means the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material change in
the use of any buildings or other land.
It will be seen that this subsection
provides for two separate types of development:
(a)
operational development; and
(b)
change of use development.
By section 23(1), subject to the
provisions of the section, planning permission is required for the carrying out
of any development of land. It is also relevant to bear in mind the provisions
of section 33(1) of the 1971 Act to which I have already drawn attention.
In the case of development which consists
of the making of any material change in the use of the land the permission is
‘spent’ when the change of use is implemented. Accordingly an owner cannot
subsequently make use of this permission if the land is later used for some
purpose not covered by the permission: see Young v Secretary of State
for the Environment (supra) and Cynon Valley BC v Secretary of
State for Wales (supra).
Permission for operational development on
the other hand is not ‘spent’ when the development begins. Moreover, in the
case of mining operations it is necessary that the permission should remain in
existence throughout the time that the operations continue because, as was pointed
out in Thomas David (Porthcawl) Ltd v Penybont Rural District Council
[1972] 1 WLR 1526, the moving of every shovelful of material is a mining
operation and a separate act of development.
The 1971 Act has been amended to provide
time-limits for the duration of planning permissions for the mining and working
of minerals. Thus by section 44A (which was inserted by section 7 of the Town
and Country Planning (Minerals) Act 1981) it is provided:
Every planning permission for development
consisting of the winning and working of minerals shall be subject to a
condition as to the duration of the development.
The general maximum time-limit is now 60
years from the date of the permission; and section 44A(5) provides:
The condition in the case of planning
permission granted or deemed to have been granted before the commencement of
section 7 of the Town and Country Planning (Minerals) Act 1981 is that the
development must cease not later than the expiration of a period of sixty years
beginning with the date of the commencement of that section.
In my judgment the change of use cases do
not assist in the present case. They are dealing with a different type of
development where the change of use itself is the implementation of the
permission. Nor, in my view, is it relevant to inquire whether a new chapter in
the planning history of the land has opened.
The correct approach is that which was
formulated in Pilkington’s case (supra). The question for
consideration in cases involving a permission for
by the permission on which it is now sought to rely having regard to that which
has been done or authorised to be done under the permission which has already
been implemented? Or, to use the words
of the judge at p 24H of his judgment, the question is ‘whether the development
contemplated by the earlier permission could be carried out consistently with
the development sanctioned by the implemented permission’.
The decision in Pilkington’s case
has been approved by the Court of Appeal and also by Lord Scarman in the Pioneer
Aggregates’ case, where he said, at p 145:
[It] was certainly a common sense
decision, and, in my judgment correct in law. The Pilkington problem is
not dealt with in the planning legislation. It was, therefore, necessary for
the courts to formulate a rule which would strengthen and support the planning
control imposed by the legislation. And this is exactly what the Divisional
Court achieved. There is, or need be, no uncertainty arising from the
application of the rule. Both planning permissions will be on a public
register: examination of their terms combined with an inspection of the land
will suffice to reveal whether development has been carried out which renders
one or other of the planning permissions incapable of implementation.
It will be remembered that it was argued
in the alternative on behalf of the council that even if one applied the Pilkington
test the 1947 decision can no longer be relied upon. Thus, it was said, it
cannot be implemented according to its terms. I am satisfied, however, that
this argument also must fail. In the decision letter dated March 14 1988 the
Secretary of State referred to the findings of fact made by the inspector.
These findings included a finding that ‘the extraction of sand and gravel from
areas covered by subsequently tipped material and by natural overburden would
be both practicable and viable’. The Secretary of State decided that the 1947
permission for quarrying is still capable of being implemented. The judge came
to the conclusion that he could find no error of law by the Secretary of State
in his application of the law to the facts of this case or in his decision that
the 1947 permission is still capable of being implemented.
I agree with the judge. The Secretary of
State applied the Pilkington test to the facts. This was the right test
to apply. I can see no error of law or any error in the application of the law
to the facts.
I would dismiss the appeal.
BUTLER-SLOSS LJ: I agree.
McCOWAN LJ: I also agree.
Appeal dismissed with costs to both
respondents. Appellants’ application for leave to appeal to House of Lords
refused.
