Town and Country Planning Act 1971–Appeal against quashing of discontinuance order–Deposit of refuse or waste materials on land in the Peak National Park accompanied by some processing of scrap–Forbes J held that this was not a ‘use,’ but ‘operations’ and that discontinuance order was invalid–Judge’s interpretation incorrect–‘Operations’ comprise activities resulting in some physical alteration to the land which has some degree of permanence–The storing, sorting and processing of scrap amount to a ‘use’ of land–Appeal allowed and order restored
This was an
appeal from a decision of Forbes J quashing an order by the Peak Park Planning
Board, confirmed by the Secretary of State for the Environment after an inquiry,
requiring the discontinuance of an alleged use consisting of the storing,
sorting and processing of refuse and scrap materials on land near Great Hucklow
in the Derbyshire Dales, part of the Peak National Park.
Harry Woolf
(instructed by the Treasury Solicitor) appeared on behalf of the Secretary of
State for the Environment, the appellant in the present appeal; the respondent,
Kenneth Parkes, who had succeeded before Forbes J as the applicant to quash the
order, was not present or represented in these proceedings; and the Peak Park
Planning Board took no part in them.
Giving
judgment, LORD DENNING MR said: In the Peak National Park, high up near Great
Hucklow in the Derbyshire Dales, there is an area of great landscape beauty.
But it is spoilt in one part by an ugly heap of waste. It is near an old lead
mine called Milldam Mine. There are old and rusty pieces of equipment strewn
over the site. There is a dilapidated old shed. There are derelict stationary
engines and all sorts of old scrap. It has been there for 30 years or so.
Living there are a Mr Parkes and his sister Miss Parkes. They want to carry on
this old scrap heap. They sort the scrap there and store it there.
The Peak
National Park authority, wishing to preserve the amenities of the park, want to
get rid of this heap of waste. They seek to put into force section 51 of the
Town and Country Planning Act 1971. It enables the planning authority to order
the discontinuance of a use. If such an order is made and the use discontinued,
the persons concerned (in this case Mr Parkes and his sister) are entitled to
compensation. Section 51 says:
If it appears
to a local planning authority that it is expedient in the interests of the
proper planning of their area (including the interests of amenity), regard
being had to the development plan and to any other material considerations–(a)
that any use of land should be discontinued, or that any conditions should be
imposed on the continuance of a use of land; or (b) that any building or works
should be altered or removed, the local planning authority may by order require
the discontinuance of that use . . .
Section 170
provides compensation for any person damaged by a discontinuation order.
In the case of
this waste heap a discontinuation order was made. An inquiry was held by an
inspector. His conclusion was: ‘. . . it seems to me that the storage of scrap
and scrap materials is a land use which can be identified as such, and does not
involve operations affecting the physical characteristics of the land. This use
of the land falls within the compass of section 51 of the 1971 Act.’ So he recommended that the order be
confirmed. The minister did confirm it. Mr Parkes objected to the order. He
applied to quash it. Forbes J did quash the order. The minister appeals to this
court.
The issue
depends on the meaning of the word ‘use’ in section 51(1)(a) of the 1971 Act.
Forbes J drew a distinction between carrying out ‘operations’ on land and
making ‘use’ of land. The local authority had no power, he said, to stop ‘operations’
being carried out on land. It only had power to stop the ‘use’ of the land. The
judge acknowledged that ‘the deposit of refuse or waste materials on land’ was
a use of it: because it is so described in section 22(3)(b) of the 1971 Act.
But the judge said that in this case there was something more than the mere
deposit of refuse or waste material, because Mr Parkes not only stored the
scrap there. He sorted it into separate heaps or piles of material, according
to the size or nature of the bits of scrap. In that way he processed the scrap
there. The judge said that, if the scrap was ancillary to the processing, the
whole thing would be the carrying out of ‘operations’ on the land: and, being
‘operations,’ it was not the ‘use’ of the land. So no discontinuation order
could be made. The result was that Mr Parkes could carry on there indefinitely.
The judge then
gave a restricted meaning to the word ‘use.’
He was led to this view by the definition in section 290 of the Act. It
says: ”use’, in relation to land, does not include the use of land for the
carrying out of any building or other operation thereon.’ That led the judge back to the definition of
‘building operations.’ It says that
”building operations’ includes rebuilding operations, structural alterations
of or additions to buildings, and other operations normally undertaken by a
person carrying on business as a builder.’
Then returning to the definition of ‘use,’ the judge said that ‘building
operations’ were excluded from ‘use’ and so also were ‘other operations
thereon.’ By that line of reasoning the
judge held that any operations of any kind were excluded from ‘use.’ So he held that the sorting and processing of
scrap material were excluded as being ‘other operations thereon.’
The department
are most concerned by the judge’s interpretation of the word ‘use.’ I am not surprised: because it makes a
serious gap in planning law. I wish we could have argument on both sides. But
we had none on Mr Parkes’ side. He conducted his own case in the court below.
Unfortunately we have not had the benefit of his presence here today. But we
have considered as well as we can the arguments which could be submitted on his
behalf. As a result I am afraid that I take a different view from the judge. I
think that the Act divides ‘development’ into two halves. Section 22 says:
”development’ . . . means the carrying out of building, engineering, mining or
other operations in, on, over or under land’–that is one half–‘or the making of
any material change in the use of any buildings or other land’–and that is the
other half. These two halves are found again in section 45(4). It says that a
planning permission can be revoked ‘(a) where the permission relates to the
carrying out of building or other operations, at any time before those
operations have been completed; (b) where the permission relates to a change of
the use of any land, at any time before the change has taken place.’ The two halves are found again in 51(1)(a)
and (b) respectively.
Looking at
these various sections it seems to me that the first half, ‘operations,’
comprises activities which result in some physical alteration to the land,
which has some degree of permanence to the land itself: whereas the second
half, ‘use,’ comprises activities which are done in, alongside or on the land
but do not interfere with the actual physical characteristics of the land. We
were referred to Coleshill & District Investment Co Ltd v Minister
of Housing and Local Government [1969] 1 WLR 746 where the House of Lords
considered whether demolition of a structure could be ‘development.’ There are interesting observations on the
construction of these sections but none that affects our present case.
Coming back to
the present case, it seems to me, with all respect to the judge, that the
storing, sorting and processing of scrap on land amounts to a ‘use’ of land.
There is no physical alteration to the land. It is an activity on the land
which is clearly a use of the land well within the definition. So an order can
be made, and was properly made, for the discontinuance of the use.
I would
therefore allow the appeal, remembering that the statute does provide for
compensation for a person who is affected by such an order as this. So I would
allow the appeal accordingly.
GEOFFREY LANE
and EVELEIGH LJJ delivered judgments agreeing with the Master of the Rolls.
The appeal
was allowed and the decision of the Secretary of State restored. No order was
made as to costs.