Planning permission for Kent oil refinery–Case called in by Secretary of State, who grants permission for all installations except a proposed access road and imposes a condition that oil etc shall not be moved by road–Permission for the scheme minus the road held unobjectionable–‘As a matter of common sense, the determining authority can grant as much of the development applied for as they think should be permitted’–Further points on the validity of the condition imposed and on the Secretary of State’s reliance on a statement by the Secretary of State for Energy–Application to quash groundless, but court’s discretion would in any case have been exercised in Secretary of State’s favour
This was an
application by the Kent County Council for an order quashing a decision of the
first respondent, the Secretary of State for the Environment, granting the
second respondents, Burmah-Total Refineries Trust Ltd, planning permission for
construction of an oil refinery at Cliffe Marshes, Kent.
R Sears QC
(instructed by Sharpe, Pritchard & Co, agents for the solicitors to Kent
County Council) appeared for the applicants; D Widdicombe QC and Lord Colville (instructed
by the Treasury Solicitor) for the first respondent; and G Eyre QC and M Spence
(instructed by Denton Hall & Burgin) for the second respondents.
Giving
judgment, SIR DOUGLAS FRANK said: This is an application under section 245 of
the Town and Country Planning Act 1971 for an order that a planning permission
for an oil refinery granted by the first respondent to the second respondents
be quashed. On September 23 1971 the second respondents made two applications
for planning permission, one for development described as ‘oil refinery and
jetty with ancillary activities’ and the other as ‘road/rail terminal
facilities and ancillary pipelines and roadways.’ The purpose of the application was to obtain
planning permission for a proposed new oil refinery at Cliffe Marshes alongside
the Thames in Kent. It was explained that two applications were made, as two
separate sites were affected, but that the local planning authority were asked
to treat the two application forms as constituting one application. On November
29 1971 the first respondent gave notice that he had decided to exercise his
powers under section 22 of the Town and Country Planning Act 1962 and to call
in the applications for decision by himself. On May 2 1972 a local inquiry was
held by one of the first respondent’s inspectors, H M A Stedham ARICS FRTPI,
assisted by two assessors. It was completed on May 5 1972. Mr Stedham reported
at length to the first respondent in September 1972. Having concluded that
there were major objections to the development because of the effect it would
have on the coastal area and because of the inadequacy of the road network to
take the traffic involved, he recommended that the application be refused.
However, the first respondent decided that it was in the national interest that
additional refinery capacity should be made available to meet the expected
requirements in southeast England, and for that reason was unable to accept his
inspector’s recommendation. Nevertheless, he recognised that the road system
was inadequate, and said that he had it in mind (1) to refuse permission for
the construction of the access road as proposed in the application, and (2) to
grant outline planning permission for the oil refinery, the jetty, the rail
terminal facilities and the pipelines between the refinery and terminal,
subject to a condition, inter alia, that save as should be agreed from
time to time with the local planning authority (or in default of agreement, as
should be determined by the Secretary of State) no deliveries of oil, oil
products or by-products should be made to or from the oil refinery or terminal
except by sea, pipeline or rail transport.
The first
respondent also stated that ‘since a planning permission along the lines
indicated above would result in development significantly different from that
for which planning permission was originally sought, the Secretary of State
thinks that he should afford all the parties concerned an opportunity to make
further representations to him on the matter.’
Further representations were made, particularly by the applicants, and
accordingly on December 10 1974 the first respondent gave notice that he
intended to reopen the inquiry, but limited to hearing representations relating
to his proposed intention to grant permission in the way he had stated and to
material considerations which had arisen or come to light since the original
inquiry. The reopened inquiry was held by Mr Stedham from April 8 to 16 1975,
and he reported in the following month. In his report he said that in his
opinion there had been sufficient changes since March 1974, certainly since
1972, to require a fresh assessment as to whether the public interest in
securing extra refining capacity in the region was still sufficiently strong to
outweigh the siting of a proposed refinery on the Cliffe Marshes, especially
with the prospect of either restricted distribution arrangements for a lengthy
period, or the imposition of tanker traffic on an unsuitable road network. He
felt unable to make a recommendation. On December 31 1975 the first respondent
granted planning permission on the lines previously stated and subject to a
number of other conditions, of which only one will have to be mentioned. The
applicants challenged the first respondent’s decision on a number of grounds,
and it will be convenient for me to deal with these under separate headings.
(1) Permission for part only of the
development. The contention is that the first respondent erred in law, and
was acting ultra vires, in purporting to grant planning permission for
part only of the development which was the subject of the application. Mr
Sears, for the applicants, submitted that
local planning authority in dealing with an application, and that his powers
are not greater than those set out in section 29 (1) of the Act of 1971. Thus
he may grant permission either conditionally or subject to conditions, or may
refuse permission, but not both. It is clear from the language of the section
that the grant or refusal can relate only to the development proposed in the
application and not to a different development, for that, Mr Sears said, is the
scheme of the Act. He asked how it would be possible to appeal under section 36
or section 37 where an application had been granted in part and refused in
part, or how sections 41 and 45 could apply to a part-only permission. He
contrasted the provisions of section 183, and claimed that had it been intended
that part-only permission could be granted under section 29, then words similar
to those in section 183 would have been used. He emphasised that the reason why
the Secretary of State had reopened the inquiry was because he had said that a
planning permission along the lines indicated would result in a development
significantly different from that for which planning permission was originally
sought. He referred to Federal Steam Navigation Co Ltd v Department
of Trade and Industry [1974] 1 WLR 505 for authority for the proposition
that the word ‘or’ in section 29 should be used disjunctively–that is to say,
that planning permission could not be granted and refused on the same
application.
Mr Widdicombe
conceded that the first respondent had no greater power than the local planning
authority in dealing with an application, but submitted (1) that where an
application contains a number of separate and divisible elements it is lawful
for them to be separately dealt with, and (2) alternatively, that if the
elements are not divisible there is power to modify the application provided
(a) the scope of the development is not enlarged, (b) the essential nature of
the development is not altered, and (c) any persons affected are given a chance
to make representations. He (counsel) did not think that the agreement of the
applicant for permission to the modification was necessary, but that question
did not arise in this case, as the second respondents had agreed to the
modification. As to his first submission, Mr Widdicombe said that the fact that
there is only one application form is not conclusive, for there can be several
developments in one application. Here there were four elements expressed in the
application and by the Secretary of State, namely (1) the construction of the
refinery, (2) the provision of road and rail terminals, (3) the construction of
a pipeline, and (4) the construction of an access road. Each part involved
separate land, and a separate and distinct use of any one part could have been
carried out without the carrying-out of the others, save that the construction
of the refinery was a development to which all the other elements were
ancillary. He denied that any problems could arise under the sections mentioned
by Mr Sears, for in each case the provision concerned would apply to the part
of the development granted or the part refused, as the case might be. He said
that a permission related not to the application but to the development applied
for, because by section 23 planning permission is required for the development.
Mr Eyre, for the second respondents, adopted Mr Widdicombe’s arguments, and
conceded that the first respondent had no jurisdiction to grant planning
permission for development to which the application did not relate, or for
development which was different in nature; nevertheless, he had power to grant
permission for any development included in the application. He (counsel) argued
that section 38 of the Act of 1971 clearly envisaged that the first respondent
had power to grant permission in respect of part of the land to which the application
related. As to the meaning of the word ‘or,’ counsel contended that it was not
to be construed in the sense of mutual exclusivity and that it was not an
inviolate disjunctive where the clear intention of the statute was otherwise: Mersey
Docks & Harbour Board v Henderson Brothers (1888) 13 App Cas 595
at 603. Dealing with other objections raised by Mr Sears, he said that the
applicants’ consent to the amendment was not required, as upon the application
being called in they ceased to have any jurisdiction and had merely a right to
be heard. He said that the form of a decision could not affect the
subject-matter of the grant.
In my
judgment, the correct approach to this matter is to ascertain the powers under
section 29 of the Act by reference to the purposes of Part III, in which it
appears. It seems to me that everything in Part III flows from and is
consequential upon the provision in section 23 that planning permission is
required for the carrying-out of any development of land. Hence when the matters
come before the determining authority, in this case the first respondent, what
that authority has to do is to decide whether, having regard to the provisions
of the development plan and to any other material considerations (that is,
planning considerations), permission ought to be granted, and if so, what if
any conditions should be imposed. It further seems to me that as a matter of
commonsense the determining authority can grant as much of the development
applied for as they think should be permitted. It may be that the applicants’
consent should first be obtained, but no question as to that arises in the
instant case, as on April 2 1974 the solicitors for the second respondents told
the first respondent, ‘We confirm the condition proposed by paragraph 5 of your
letter is acceptable to our clients.’
That was the condition eliminating the use of the road. Indeed, as Mr
Sears admitted, it is common practice for applications to be dealt with in this
way, for example, where 50 houses are applied for and the local planning
authority grants permission for 40 houses. Mr Sears found this unobjectionable,
but said that a formal amendment to the application was required and that where
the application was called in the consent of the local planning authority must
have been given. On the facts of this case the first respondent and the second
respondents by their conduct agreed to an amendment. I see no reason why the
local planning authority had to be a party to that amendment. Accordingly, I
agree with Mr Widdicombe that where an application consists of a number of
separate and divisible elements it is lawful for them to be separately dealt
with, as was done in this case. It seems to me to matter not in this case
whether the decision of the first respondent was upon an amended application or
whether it was a part refusal, save that in the latter case it is necessary to
construe the word ‘or’ conjunctively. But I think that may be done, having
regard to the context of the part of the statute in which the word appears. In
the Mersey Docks & Harbour Board case Lord Halsbury said:
I know of no
authority for such a proceeding unless the context makes the necessary meaning
of ‘or’ ‘and,’ as in some instances it does: but I believe it is wholly
unexampled so to read it when doing so will upon one construction entirely
alter the meaning of the sentence, unless some other part of the same statute
or the clear intention of it requires that to be done.
In my
judgment, Part III of the Act of 1961 does require ‘or’ to be read as ‘and,’
and apart from the general purpose of Part III, section 38 impliedly recognises
that as the correct construction. There is one further way of looking at the
first respondent’s decision. Not only did he expressly refuse permission for
the construction of the access road, but he also imposed a condition which had
the same effect, in that in the absence of the agreement of the local planning
authority deliveries were to be made only by sea, pipeline or rail transport.
Thus if the refusal was ultra vires then it is arguable that that part
of the decision should be disregarded. Of course in truth what the first
respondent decided was to
which would restrict the way in which the development was carried out. There
would be nothing unusual in that, but whether this particular condition was ultra
vires I will consider when I come to the last ground of appeal set out in
the notice of motion.
(2) Natural justice. It is said under this
head that the first respondent erred in finding, as he did, that the proposed
oil refinery at Cliffe was needed to meet demand in the southeast of England
and that ‘there is evidence of a deficit in refining capacity’ in the
south-east. The error alleged is that he had regard to the views of the
Secretary of State for Energy when there was no evidence given by that
Secretary of State as to the need for the refinery, and that the applicants had
no opportunity of testing the assertion of that Secretary of State that the
proposed refinery was needed to meet demand in the south-east or of the factual
basis of the statement made by him and relied upon by the first respondent.
This allegation arises from paragraph 15 of the decision letter, which sets out
the respondent’s conclusions in these terms:
So far as the
south-east region is concerned, there is evidence (as indicated in paragraph 13
above) of a deficit in refining capacity, and the Secretary of State concludes
that this deficit will be increased by the extent to which any North Sea oil
refined in the region is exported. Given that it will take a number of years to
build the proposed refinery, the Secretary of State does not agree with the
argument that reliance for oil supplies can or should be placed on other
projects, the implementation of which is not guaranteed. He sees no reason to
doubt that additional capacity should be provided in the region, and he also
considers that the need to provide for exports strengthens the case for such
additional refining capacity. In all the circumstances he has concluded that a
need for the refinery proposed in the present application has been established.
The evidence
indicated in paragraph 13 was expressed in these words:
At the
reopened inquiry forecasts were submitted by the county council that, assuming
no new capacity is created, the regional deficit would be about 5 mty, whereas
national capacity would be in surplus. Documentary evidence was submitted on
behalf of your clients that the regional deficit could be in the order of 10 or
12 mty. In his statement of December 6 1974 (referred to in paragraph 8 above)
the Secretary of State for Energy has expressed the view that the proposed
refinery at Cliffe is needed to meet the demand in the south-east.
In his
statement to the House of Commons, the Secretary of State for Energy had said:
If projects
now under consideration go ahead, including those at Canvey Island and Cliffe
which are needed to meet demand in the south-east, I expect our refinery
capacity in the early 1980s to approach 150 million tons a year. This should be
enough overall to meet our own needs and provide for some exports.
Mr Sears,
while conceding that the first respondent was entitled to have regard to his
own policy and that of any other Government department, said that the
applicants were entitled to be provided with the information on which the
Secretary of State for Energy’s judgment was made, and were entitled to
cross-examine to test the credibility of that information. He further
complained that the decision in this case was made not by the first respondent
but by the Secretary of State for Energy, and he referred to H Lavender
& Son Ltd v Minister of Housing and Local Government [1970] 1
WLR 1231. Dealing first with that last point, the ratio decidendi in the
Lavender case was that the respondent had delegated the making of his decision
to the Minister of Agriculture and had not properly or at all exercised his
duty of discretion. In the instant case, although the first respondent had
regard to the view expressed by another Minister, there is no evidence
whatsoever that the decision was other than his own. Accordingly, I do not find
this complaint well founded, and indeed it was abandoned by Mr Sears. As for
the applicants’ first point, I think the short answer to it is that the
Secretary of State for Energy’s statement in the House of Commons that two more
refineries were required in the south-east to meet the expected demand was a
statement of policy. He did not say that it was his policy that those
refineries should be at Canvey Island and Cliffe, but merely that if those
projects went ahead they would meet that particular need. He was thus confining
himself to a policy peculiar to his own department, leaving the decision for
the siting with the appropriate authority. If that is right, I think it is
clear from the Town and Country Planning (Inquiries Procedure) Rules 1974 that
far from the Secretary of State being required to justify that policy in any
way, it was a matter which could not have been questioned at the inquiry (see
rule 8 (5)), in that the first respondent could have taken it into account even
if it had not been raised at the inquiry (see rule 12 (1) (b)). Apart from the
rules, there is ample authority for the proposition that the first respondent
was entitled to take into account the views of another Government department
even without giving the parties an opportunity to comment on them (see, for
example, Miller v Minister of Health [1946] KB 626; Robinson
v Minister of Town and Country Planning [1947] KB 702; Summers v Minister
of Health [1947] 1 All ER 184; Johnson v Minister of Health
[1947] 2 All ER 395; and Darlassis v Minister of Education (1954)
4 P & CR 281). However, it happens that in this case the statement in the
House of Commons was made before the 1975 inquiry, so that the parties were
able to, and did, comment on it at the inquiry. Moreover, the applicants
themselves stated that there would be a regional deficit, and this was part of
the evidence relied on by the first respondent for his decision. I would add
that in any event there is no rule of natural justice which could have required
the Secretary of State for Energy to give evidence at the inquiry. It follows
that the applicants’ contention under this heading fails.
(3) Invalidity of condition. The
applicants say that condition 5 (that is, the condition which requires that the
delivery shall be made only by sea, pipeline or rail transport) is invalid,
first because it is unworkable, and secondly because it takes away a
substantial part of the benefit of the planning permission. Mr Sears said,
however, that this is not the most important part of his case. In my judgment
there are short answers to these two points. First, if the second respondents
carried out deliveries by road (say as stated in the condition) then they would
be liable to enforcement procedure under the Act. The fact that there might be
practical difficulties as alleged in an affidavit, namely in distinguishing the
second respondents’ traffic from other traffic, does not go to the validity of
the condition. As to the second point, a conditional permission is almost
invariably less beneficial than an unconditional permission. It must always be
a question of fact and degree whether a particular condition is such as to take
away the substance of the permission, in which event that condition may be
invalid. In this case, however, the development sought is the construction of
an oil refinery, and all else is ancillary to that purpose. Of course if the
condition had been such as to render the oil refinery unworkable, that would be
a different case; but the second respondents’ acceptance of the condition is
evidence that it is certainly not this case.
There is one
final matter with which I must deal. Mr Widdicombe submitted that if I
concluded that the decision of the first respondent was right in principle and
wrong in form, then I had a discretion which I should exercise in favour of the
respondent. He pointed out that under section 245 (4) (b) the court, if satisfied
that the order or action in question is not within the powers of the Act, may
quash the order or action. In Miller v Weymouth & Mel-
combe Regis Corporation (1974) 27 P & CR 468 at 478 Kerr J said: ‘In my
judgment, Mr Slynn is correct in his submission that both as a matter of
history and on the basis of such authority as there is the word ‘may’ is here
used in its ordinary permissive sense, though it would no doubt only be rarely
and in very unusual cases that a court would not exercise its discretion to
quash a ministerial order or action which was not within the relevant statutory
powers, and it would never do so if a refusal to exercise the discretion to
quash would or might be unjust in the circumstances.’ Thus if I am wrong in my view that the first
respondent’s decision is within the powers of the Act, the question is then
whether the applicants would be entitled to have the order quashed ex debito
justitiae. The most that can be said against the first respondent is that
he failed to state formally that the application was amended to exclude the
construction of the road. The parties at the second inquiry were well aware
that construction of the road was to be refused. That refusal or amendment, far
from being prejudicial to the applicants, came about in order to meet one of
their major objections. It cannot therefore be said that they are entitled to
the order which they seek ex debito justitiae. Accordingly, even if I
had found the first respondent had no power to refuse the application in part, or
that in truth he dealt with it as an amended application, then I would decline
to exercise my jurisdiction to grant the order sought by the applicants. In all
the circumstances I accordingly dismiss this action.