Town and Country Planning Act 1971 — Question as to ‘abandonment’ of a planning permission — Permission had been given for limestone working in the Peak District National Park to a quarrying company — The company carried out extraction for a number of years and then informed the planning authority that they intended to cease quarrying, but tried for some time to make other arrangements for the use of the site — Inquiries from other possible users were made and permission was given to one applicant to establish a caravan site, but this was not established — Eventually Pioneer Aggregates, who were interested in quarrying minerals, asked the authority whether planning permission would be necessary — The authority expressed the view that the previous permission had been abandoned and that a fresh permission was required — Pioneer Aggregates tested the matter by carrying out some token quarrying activities, were served with an enforcement notice and appealed — The Secretary of State decided against them and they appealed to the High Court, when Glidewell J decided in their favour — He held that the decision of the Court of Appeal in Slough Estates Ltd v Slough Borough Council (No 2) did not apply to the present case, but, if it did, on the facts in the present case there had been no abandonment of the permission — Held by the Court of
The appellants
in this appeal were the Peak Park Joint Planning Board, who appealed against a
decision of Glidewell J allowing an appeal against a decision of the Secretary
of State for the Environment in favour of the appellants. The respondents to
the present appeal were Pioneer Aggregates (UK) Ltd. There was a cross-appeal by
the respondents against refusal of planning permission.
Michael Barnes
QC and H Singer (instructed by Theodore Goddard & Co, agents for C J
Harrison, solicitor, Peak Park Joint Planning Board) appeared on behalf of the
appellants; David Widdicombe QC and C R George (instructed by Coward Chance)
represented the respondents.
Giving
judgment, EVELEIGH LJ said: Bearing in mind the need to treat the word
‘appellants’ in the judgment of Glidewell J as being the respondents to the
appeal in this court, I would adopt every word that Glidewell J has said at pp
2 to 10 of his judgment, which read as follows:
This is an
appeal under section 246 of the Town and Country Planning Act 1971, against a
decision of the Secretary of State, dated April 15 1981, dismissing an appeal
to him by the appellants (Pioneer Aggregates) against an enforcement notice
served by the Peak Park Joint Planning Board whom I shall call ‘the board’.
That notice, which was dated February 25 1980, alleged that it appeared to the
board that there had been a breach of planning control within the period of
four years before the date of the service of the notice in that the land to
which the notice related had been developed by the carrying out on the land of
mining or other operations, namely, excavation of material from the quarry
floor. The notice required Pioneer Aggregates to reinstate the materials
removed in the course of the operations.
Pioneer
Aggregates and Mr Mollatt, who is the owner of the appeal site and the third
respondent to this appeal, both entered appeals against the enforcement notice.
Pioneer Aggregates appealed on four of the grounds set out in section 88(1) of
the Town and Country Planning Act 1971, but I am only concerned with two
grounds, namely:
‘(a) that
planning permission ought to be granted for the development to which the notice
relates . . . (b) that the matters alleged in the notice do not constitute a
breach of planning control’.
The
appellants’ case on ground (b) is that the excavation of mineral which they
undoubtedly carried out was authorised by two planning permissions which had
been in force for many years and which were still in force.
The Secretary
of State appointed one of his inspectors, Mr K Cleaver, to hear the appeal,
which he did on July 15 1980. Mr Cleaver expressed his opinion that, assuming
that it is possible to abandon rights under a planning permission for mineral
working, ‘the rights bestowed by the 1950 and 1962 permissions have not been
abandoned’. If that were held to be wrong, and the development required
planning permission, he recommended that such permission be granted.
The Secretary
of State disagreed with his inspector on both matters. He held that the
permission for the winning and working of limestone had been abandoned and that
planning permission should not be granted. The appeal therefore failed. The
appeal on ground (b) therefore raises the fundamental question whether the
rights granted under a planning permission for the extraction of minerals can
be ‘abandoned’, and if so, in what circumstances.
The Site
The site to
which the enforcement notice relates is an area of some 25 acres in the
limestone uplands of Derbyshire, within the Peak District National Park. It
lies about half a mile to the west of the A515 Ashbourne to Buxton road, and on
the northern side of a lane leading to the hamlet of Heathcote, a quarter of a
mile to the south-west. Limestone has been extracted from approximately
one-third of the site, and the resultant Hartshead Quarry now has a floor about
40 ft below the original ground level. In the middle of the quarry floor is a
large hole, which at the time of the inquiry contained vehicle tyres. The
western boundary of the site is the line of a disused railway, now the
Tissington Trail, a footpath and bridleway.
History
On October 31
1950 the Minister of Town and Country Planning (to whom, at that time, all
applications for planning permission for mineral working were referred) granted
to Hartshead Quarries Ltd planning permission for the development of a site
comprising the present appeal site and a further larger area of land on the
south side of Heathcote Lane and separated from the appeal site by the lane.
The permission was for ‘the winning and working of limestone, the disposal of
waste material and the construction of a tunnel to connect the two portions of
the site . . .’. It was subject to a number of conditions, including a
limitation on the extent of the appeal site from which minerals could be
extracted and to ‘restoration’ conditions, namely,
‘3. On the
completion of quarrying in the area north of the highway tipping of waste
material on the said spoil bank shall cease and all waste material shall be
deposited within the excavation formed by quarrying in that area to a level
surface.
4. On the
conclusion of quarrying in the area north of the road all mineral stocks shall
be stored in that area’.
There was no
limitation, either on the depth to which quarrying might proceed or on the
period of time for which the permission took effect.
In 1955 a
detailed permission for the construction of the tunnel was granted but this has
never been constructed.
On November 9
1962 a further permission was granted which extended the area from which
minerals might be extracted and on which tipping could take place north of
Heathcote Lane.
Following the
1950 permission, Hartshead Quarries Ltd extracted limestone from the appeal
site, and by 1966 the quarry had been worked in the area north of Heathcote
Lane.
On September
15 1966 Hartshead Quarries Ltd wrote to the then director and planning officer
of the board a letter in which they said:
‘We wish to
advise you that this company will cease quarrying, crushing and screening
activities no later than December 31 1966. It is further anticipated that by
the end of February 1967 all land now occupied by us will be vacated and all
plant and buildings removed. Most of the land now being quarried will be
returned to the Chatsworth Estates Ltd under the terms of their lease and the
remainder of the land in use, and 41 acres of land on the opposite side of the
road to the present quarry which is all our freehold will be disposed of by
sale. We feel that you will no doubt wish a member of your staff to visit the
site and agree with us as to how the site should be left.’
The board
accepted the invitation to send a representative to visit the site and, on
October 6 1966, the director and planning officer wrote to Hartshead Quarries
Ltd a letter in which he referred to the restoration conditions in the 1950
permission and said, in effect, that the board would be prepared to accept
something less. It seems to me that, though Hartshead Quarries Ltd had said no
more than that they were ceasing quarrying activities, the board treated their
letter as meaning that the extraction of mineral from the appeal site was to
cease completely.
On November 18
1966 Hartshead Quarries Ltd wrote to the board saying that they were
negotiating to purchase the mineral rights under the appeal site from the
Chatsworth Estate, and offering to sell the whole of their holding (ie the
areas both north and south of Heathcote Lane) or alternatively the northerly
appeal site alone to the board.
There followed
negotiations about this possible purchase which, in the event, came to nothing.
Meanwhile Hartshead Quarries Ltd did carry out certain moving and grading of
spoil, and on January 6 1967 the board wrote to them to say:
‘My officers
report that the planning condition requiring grading of the waste heaps has
been discharged to their satisfaction and I thank you for your co-operation in
this matter’.
In February
1967 Hartshead Quarries Ltd applied to the board to determine, under section 43
of the Town and Country Planning Act 1962, whether the tipping of imported
waste material into the hole in the quarry would constitute development and
require planning permission. In March 1967 the board replied that the proposed
tipping would be permitted development under Class 18 of the 1st Schedule to
the then current Town and Country Planning General Development Order.
On January 29
1968 another company, A & J Mucklow (Bricks) Ltd, wrote to the board saying
that they were interested in the possibility of purchasing Hartshead Quarry in
order to extract the materials and to install a plant for the production of
pre-cast bricks or blocks. It is apparent from that letter that by this time a
quantity of tyres had already been tipped into the quarry. On February 19 1968
the board replied to Mucklows saying that they had no objection to raise in
principle to their proposal and ‘as you are aware, stone quarrying can be
resumed under the terms of the two existing planning permissions although the
erection of further plant exceeding 25 ft in height or buildings would require
the permission of the board . . .’. Nothing came of this proposal.
On June 19
1972 planning permission was refused for the tipping of used tyres and
non-toxic rubber compounds into the quarry. Despite this, it seems that tyres
were in fact tipped into the hole in the quarry floor from time to time until
the year 1973. On June 3 1974 planning permission was also refused for the
tipping of industrial waste in the quarry.
In 1974 Mr
Mollatt purchased the appeal site from Hartshead Quarries Ltd and on January 16
1974 he applied for planning permission to use the quarry site as a site for
seasonal and touring caravans. On August 21 1974 an officer of the board wrote
to Mr Mollatt saying that, if the water supply problems could be overcome, the
board’s Development Control Committee were prepared to approve the application
in principle, subject to conditions including a maximum of 50 pitches all for
touring caravans, and the filling of
floor, followed by the spreading of top-soil. Mr Mollatt replied saying that
these conditions seemed reasonable to him. There followed negotiations with the
water authority, and a suggestion that Mr Mollatt should sell the appeal site
to the board. This again came to nothing. For some years the application for planning
permission seems to have lain in abeyance, but Mr Mollatt proceeded to carry
out certain movement of spoil so as to level the surface of the quarry floor.
Eventually, on November 25 1977, the board issued a notice granting permission
to Mr Mollatt to use the Hartshead Quarry as a site for seasonal and touring
caravans and to remove the waste tips to the quarry bottom. It seems from this
document that the hole in the quarry floor had not been filled by that time.
Apart from the
movement of spoil to which I have referred, Mr Mollatt made no further progress
towards establishing the caravan site, and certainly there was nothing which,
in my view, would amount to a change of use of the land. In 1978 the present
appellants, Pioneer Aggregates, became interested in the possibility of
quarrying minerals from the appeal site. They approached the board to inquire
whether, in the board’s view, planning permission for such quarrying was
necessary. In a letter dated January 29 1979 to Pioneer Aggregates the assistant
director and solicitor to the board said:
‘In relation
to the entire quarry (1 Planning Unit) for which permission was granted by
letter dated October 31 1950 as extended by the permission of November 9 1962,
planning permission for the site has been abandoned. This is evidenced firstly
by the expressed written intentions of Hartshead Quarry Co Ltd to cease
quarrying, finish off the site in accordance with the permission, including
tipping and levelling. Secondly, there has been failure to implement the tunnel
permission before the tipping in the north-west area ceased, and there has been
complete cessation over a long period of time. Thirdly, you are well aware that
the lower hole in the quarry has been filled with tyres with the very clear
intention of completing quarrying in the north-west area. Finally, you are also
aware that the quarried area has been sold to an individual who is not a
mineral operator and that outline planning permission has been granted for a
caravan site upon which some project work has been started. In addition, and in
the alternative, the north-west area having been completed to the written
satisfaction of the planning authority pursuant to the third condition cannot
now be opened up without a new express permission.’
There followed
discussions between Pioneer Aggregates and the board which achieved no
solution. With the intention of bringing matters to a head in February 1980,
Pioneer Aggregates therefore removed the tyres from the hole in the quarry
floor, drilled some holes in the rock face, and fired one blast to remove
stone. This was, as was intended, treated by the board as the resumption of the
extraction of minerals from the site and the enforcement notice followed
immediately. Since that time Pioneer Aggregates have carried out no further
activity on the site and no more material has been removed pending the appeal
to the Secretary of State and now to this court. It was found as a fact by the
inspector that the site would yield some 2.3 m tonnes of stone.
Glidewell J
came to the conclusion that the principle of abandonment, if that be the right
way to name it, was to be found only in the case of Slough Estates Ltd v
Slough Borough Council (No 2) [1969] 2 Ch 305, CA. He held that there
was no other relevant abandonment principle applicable to the decision of this
case. But he then concluded that the facts of this case did not bring it within
the decision of Slough Estates v Slough Borough Council, so that
there was no abandonment within the meaning of that word as used in that case.
He further went on to say that if the principle of Slough Estates did
govern this case then, on the facts, there had been no abandonment. He also
came to the conclusion that, had it been necessary to do so, he would have
upheld the minister’s refusal to grant planning permission.
Against his
decision the board appeal to this court, and the arguments have followed the
line of the arguments in the court below. On behalf of the appellants, the Peak
Park Joint Planning Board, Mr Barnes has argued that there is a principle of
abandonment applicable to planning permission, and it is a broad one, he says,
not limited to the decision in the Slough case. He says that planning
permission, as a right, can be abandoned, and whether or not it has been
abandoned is not a question of intention but depends on the view that the
reasonable man would take and the inference he would draw from the behaviour of
the owner of the land. He further submits that if that is putting it too high,
and if the only principle applicable to planning permission is that to be found
by a narrow interpretation of the Slough case — and I will explain in a
moment what that is — then this case comes within it. He says that the decision
in the Slough case leads to the conclusion that there was, on the facts
of this case, an abandonment. He was unable to produce any direct authority to
support his submission that there is a broad principle of abandonment which
applies in these cases; but he says that that is implicit in the Slough
decision itself, and he referred us, in particular, to a passage from the
judgment of Salmon LJ at p 321-A/B. There he said:
Mr Frank has
argued that the grant of a planning permission is incapable of abandonment.
There is no authority on this point. I agree however with the judge that there
is no reason in principle why such a grant cannot be abandoned. In my view it
can be abandoned at any rate by the original grantee to the council which made
it. Whether an abandonment would be effective against a subsequent bona fide purchaser
for value who purchased the land without notice of abandonment does not arise
for decision and I express no opinion on the point.
Mr Barnes also
referred us to the case of Hartley v Minister of Housing and Local
Government [1970] 1 QB 413, to which I will refer in a moment.
But first of
all it is convenient to look at the decision in Slough Estates. That
decision is binding upon this court. The facts of that case can be summarised
by saying that the plaintiff company had permission to develop its land, but in
spite of having that permission it made another application to develop the
land, which application was refused; and armed with the refusal, as it were, it
claimed compensation, and received it. Then apparently, appreciating what seems
not to have been appreciated when the refused application was made,
appreciating that they had the previous permission they sought a declaration
that they were entitled to act in accordance with it. The court decided that
they could not do that, and Lord Denning, at p 318-B/C, said this:
Once
knowledge is shown, the company are defeated by the doctrine of abandonment:
or, as I would prefer to put it, by election between inconsistent rights. This
was fully considered by the House of Lords in United Australia Ltd v Barclays
Bank Ltd [1941] AC 1. That case shows that when a man is entitled to one of
two inconsistent rights, then if he, with full knowledge, has done an
unequivocal act showing that he has chosen the one, he cannot afterwards pursue
the other. That is what Lord Atkin said at p 30. By choosing the one, he has
elected to ‘abandon’ the other. But the word ‘abandonment’ is misleading. It
smacks of intention. That is what misled the judge here. He thought there must
be an intention to abandon. But, in this branch of the law, it is not the man’s
intention which matters. It is his conduct. Whether he intended it or not, if
he has knowingly done an unequivocal act — by which I mean an act which would
be justifiable if he had elected one way, and would not be justifiable if he
elected the other way — that is an election. He cannot go back on it: see Scarf
v Jardine (1882) 7 App Cas 345, 361, per Lord Blackburn. It is not open
to him to say: ‘I will accept the one right but I will not give up the
other.’ If he does accept the one right,
then by law he waives — he ‘abandons’ — the other, and nothing which he can say
by way of protest against the law will avail him anything: see Matthews
v Smallwood [1910] 1 Ch 777, 786-787, per Parker J.
Lord Denning
went on to say:
So here the
company had a choice in 1955 between two inconsistent rights. One was to claim
compensation for loss of development value. The other was to retain the
development value in the shape of the 1945 permission. Given those two
inconsistent rights, the company did an unequivocal act — they claimed and
accepted £178,545 for loss of development value. That would be justifiable if
they elected to abandon the 1945 permission, but it would not be justifiable if
they retained it. By accepting the compensation, they made their election and
cannot go back on it. By law they have waived, or, if you like to put it so,
‘abandoned’ the 1945 permission.
From those
words of Lord Denning, and also reading the judgments of Salmon LJ and
Karminski LJ, it is clear to my mind that the word ‘abandonment’ is not used in
any technical sense at all: it is simply a convenient — perhaps in the event it
has not been so convenient, but an alternative — way of speaking of ‘election’.
It is perhaps a shorter expression to say ‘have abandoned a right’ than to say
‘have elected to reject that right’. The effect is the same: the right has been
lost. But I treat the Slough case as being a case of election.
I am bound by
that case, and I am therefore bound to accept that in the kind of election that
is referred to in the Slough case intention does not matter, although I
have found some difficulty in accepting the proposition as firmly as Lord
Denning has stated it. But be that as it may, that case governs us, and
although the Slough case went to appeal to the House of Lords it was
decided on another ground and their Lordships deliberately refrained from
expressing any opinion as to the correctness of the decision in the Court of
Appeal on this question of election or abandonment.
Then what principle
emerges from the Slough case? It
is that which begins with the words of Lord Denning in the passage I have
quoted, where he says: ‘When a man is entitled to one of two inconsistent
rights, then if he, with full knowledge, has done an unequivocal act
showing that he has chosen the one, he cannot afterwards pursue the other’, and
I would add ‘if, by choosing the one, he has obtained for himself a benefit’.
Looking at the
present case I can find no two inconsistent rights possessed by the
respondents. Mr Barnes sought, in an ingenious way, to suggest that there were
two rights. He said that they had the right to continue mining; they also had
the right to cease and cause the cessation to be treated as completion and then
negotiate more favourable terms for the filling of the excavation with the
board. He said that they elected to do the second. I do not regard that as an
election between two rights. It was as I see it, if we are to talk of rights in
that connection, only one right: it was the right to choose. I think it is
artificial to say that a person who has an option therefore has two rights: one
to accept and the other to reject. They spring from the same right.
Consequently I
agree with Glidewell J’s conclusion on the basis of the Slough Estates
approach to this case, namely, that there being no two inconsistent rights
there was no room for the application of that principle.
Therefore it
becomes necessary to decide whether or not there is some wider principle of
abandonment. Mr Barnes has submitted that while he cannot produce a direct
authority on this point the word ‘abandonment’ has been used in a number of
decisions — and he has drawn our attention to them — in a way which suggests
that it is a broad concept, and as it is one that applies in other fields (for
example, in relation to easements) there is no reason why it should not apply
in the case of a planning application, and the case of Hartley v MHLG
was one of those invoked in support of his argument. In that case the word
‘abandoned’ was used, but it was used in this context. The appellant had sought
to set up an established use. The facts were that garage premises had been used
as a petrol filling station and for the display and sale of cars. The
proprietor died and his son and widow carried on business at those premises,
but only the petrol filling part of it. The property was then sold and the
purchaser sought to revert to the use that the original proprietor had made of
the premises. The Court of Appeal held that he could not do so, that he needed
planning permission for that, because there was no continuing use after the
father’s death of the way in which he himself had used the premises. In other
words, and speaking again untechnically, in ordinary language, the use to which
the father had put the premises had been abandoned. But that, in the context of
the Hartley case, meant that as a matter of fact the occupier had given
up or ceased to use the premises in the way in which they were originally used.
This is
clearly brought out in the judgment of Widgery LJ at p 421. There he says:
It is
perfectly true, as Mr Glidewell says, that the word ‘abandonment’ does not
appear in the legislation. We are not concerned with the legislation at this
stage, but merely with the facts of the matter. I cannot think of a better word
to describe a situation in which the landowner has stopped the activities
constituting the use not merely for a temporary period, but with no view to
their being resumed. If that has happened, then as a matter of fact the use has
ceased.
It is quite
clear from that passage, to my mind, that no doctrine of abandonment of a legal
right is being considered or recognised.
We were also
referred to some words of Oliver LJ in the case of Jennings Motors Ltd v
Secretary of State for the Environment [1982] 2 WLR 131. His words
appear at p 140, where he said:
In my
judgment this is the essence of the matter. Where there has been a total change
in the physical nature of the premises, it is easy to infer — indeed, the
inference may be irresistible — that reliance upon any prior user is being
abandoned and a new planning history is to begin,
but again it is
only necessary to read those words to see that the word ‘abandon’ is being used
in a different context and in a different sense from that of abandoning a legal
right.
That being so,
I can find no reason to persuade myself of the necessity of importing into the
Town and Country Planning Act — that is to say, into the planning legislation —
some common law or equitable doctrine that is not to be found in the words of
the statute itself.
I would have
been inclined to accept the argument of Mr Widdicombe, reflecting that of Mr
Frank, as he then was, in the Slough Estates case, that the Town and
Country Planning Act provided the code, which should not be supplemented by any
principles to be found in other branches of the law. But Mr Barnes rightly says
that it is difficult to square that with the decision in the Slough Estates
case, because there a doctrine was being imported into the planning legislation
in relation to the cessation or extinguishment of a legal right, that is to
say, the planning permission.
So, then, if I
cannot say it is a clear rule, I none the less would approach this matter upon
the principle that one ought not to add to the provisions of the legislature
towards a certain end — in this case the extinguishment of the planning
permission — when there are to be found in the Act provisions to that purpose,
and when no need for any further provision, as I see it, is made out. I would
respectfully be guided by what was said in Newbury District Council v Secretary
of State for the Environment [1981] AC 578 by Lord Fraser at p 606-C/D,
where he said:
. . . I am of
opinion that the principle contended for is unsound. It would introduce an
estoppel or bar, personal to the particular party, which is quite inappropriate
in this field of law, which is concerned with rights that run with land.
Lord Scarman,
at p 616-E, said:
In the field
of property law, equity is a potent protection of private rights, operating
upon the conscience of those who have notice of their existence. But this is no
reason for extending it into the public law of planning control, which binds
everyone.
And later, at
p 617-A, he said:
My Lords, I
agree with the view so consistently expressed by Lord Parker CJ, that it is
wrong to introduce into public administrative law concepts such as equitable
estoppel which are essentially aids to the doing of justice in private law.
I see no need,
as I say, for introducing any aids into this branch of the law in this
connection.
But I further
am of the opinion that to do so would run counter to the provisions of the Act
itself, and I have in mind section 33(1) of the Town and Country Planning Act
1971, which reads:
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.
So this is not
a purely personal right, it is one that affects the character of the land
itself; and when one bears in mind that more than one person can have an
interest in the land, and more than one person can have, at the same time, or
successively, an interest in preserving a permitted use, it would become
unworkable if one were to allow a wide principle of abandonment to be imported
into the planning law.
Consequently I
am of the opinion that there is no such wide principle.
It is
submitted on behalf of the respondents that the Slough Estates case had
been overruled because it was inconsistent with Newbury District Council
v Secretary of State for the Environment [1981] AC 578, or,
alternatively, that it had been overruled in that case by implication. I am not
persuaded that that is so. Although the case appears to have been cited in
argument there was no reference in the speeches to the Slough Estates
case, and I do not find myself persuaded that it has been overruled.
Finally I come
to the question of the refusal of the grant. The argument here has been that
the minister, in his letter, showed that he had failed to take into account the
fact that the first review plan outlined the area with which we are concerned
as one for the extraction or working of minerals and treated this application,
or subjected it to a more rigorous test, and required from it stronger
justification than the development plan (with which, of course, one includes
the structure plan) permitted.
I am content,
in this case, because it is not essential to our decision, to repeat what the
learned judge, Glidewell J, said in this case.
I would only
add that it seems to me that para 12.24 of the structure plan was intended to
apply to this kind of application. The minister read his inspector’s report,
with prominent reference in the extract to the first review plan, and then
stated that his conclusion was that the inspector had wrongly interpreted the
first review plan. The inspector had, in effect, given it too much weight and
allowed it to dissuade himself that it created a presumption in favour of the
applicant.
I am quite
satisfied that the minister did consider the effect of the
have expressed his conclusion in the way that he did.
For those
reasons I would dismiss this appeal.
Agreeing, O’CONNOR
LJ said: The appeal site is a limestone quarry in the Peak National Park. For
many years down to 1966 Hartshead Quarries Ltd worked the quarry under a
planning permission given in 1950 and a further permission extending the area
of the site given in 1962. Hartshead were lessees of the site from Chatsworth
Settlement. The terms of the lease are not in evidence, not even its length,
nor do we know the nature of the lessors’ interest in the land. The site is
bounded to the south by a road. The 1950 permission also gave permission to
work limestone out of a substantial area to the south of the road; Hartshead
were the freeholders of that land. It was let on an agricultural tenancy and
never developed as a quarry.
In 1966
Hartshead decided to stop working the quarry. They wrote to the board to
achieve an agreement as to how they should leave the workings in the light of
the conditions of the 1950 permission, in particular Conditions 2 and 3, which
read as follows:
2. No part of
the spoil bank shall be higher than 1,121 ft above Ordnance Datum and the faces
of the spoil bank be planted with grass seed to the satisfaction of the Local
Planning Authority, or the Minister.
3. On the
completion of quarrying in the area north of the highway tipping of waste
material on the said spoil bank shall cease and all waste material shall be
deposited within the excavations formed by quarrying in that area to a level
surface.
They told the
board that their intention was to surrender their lease of the site and sell
their freehold interest in the land to the south of the road. The board agreed
terms for shutting down the quarry.
Hartshead’s
plans were changed. They tried to make various arrangements for using the
quarry as a tip. A Derby firm used it for tipping old tyres. Planning
permission for that purpose was asked for and refused. In 1974 Hartshead sold
their interest in the site and, I think, the land to the south of the road, to
a man named Mollatt. In 1974 Mr Mollatt applied for planning permission to
develop the site as a caravan site for touring caravans, but it came to
nothing. In 1979 Mr Mollatt let the site to Pioneer. For 13 years the quarry
had not been worked. Pioneer decided to work it. The board asserted that it
would be a change of use. In order to bring matters to a head Pioneer fired a
few shots in 1980 and the board served an enforcement notice. Pioneer appealed,
asserting that they were entitled to work the quarry under the 1950 permission.
The board contended that that permission had been abandoned.
The inspector
found in favour of Pioneer and recommended that the appeal be allowed, but the
Secretary of State took a different view, and by his decision letter dismissed
the appeal on the ground that the 1950 permission had been abandoned.
Pioneer
appealed to the High Court on two grounds, but as Glidewell J allowed the
appeal on one ground, and as I think he was right in so doing, I will confine
myself to that ground. Pioneer submitted (1) that in law a planning permission,
once granted, could not be abandoned; alternatively, (2), it could only be said
to be abandoned in very limited circumstances such as those found in Slough
Estates v Slough Borough Council (No 2) [1969] 2 Ch 305, CA, and
that no such circumstances were to be found in the present case. The learned
judge, holding himself bound by the decision of this court in Slough Estates,
found against Pioneer on the first submission, but found in their favour on the
second submission. The Secretary of State is content with that decision but the
board appeal to this court.
In Slough
Estates the facts were that a company obtained planning permission in 1945
to develop a large area of land as an industrial estate. It never acted on that
permission but sought and obtained permission for the various projects as it
went along. By 1955 only 90 acres remained undeveloped, but when application
was made in respect thereof planning permission was refused. The company
claimed compensation under the 1954 Act and received £178,000. In 1966 the
company applied for a declaration that the 1945 permission remained in force
and permitted development of the 90 acres. Megarry J dismissed the application;
the Court of Appeal dismissed the appeal on the ground that by electing to
claim and receive compensation the company had acted in a way wholly
inconsistent with the continued existence of the 1945 permission and had
thereby abandoned it. The House of Lords dismissed the company’s appeal, but
for a completely different reason, namely, that the 1945 permission was itself
invalid. On the topic of abandonment Lord Pearson, with whose speech all their
lordships agreed, said at [1971] AC 971:
It is not
necessary, and without a definite interpretation it would hardly be feasible,
to consider whether the purported planning permission was abandoned by the
subsequent conduct of the company. I wish to reserve the question whether a
planning permission can be abandoned.
Mr Barnes, for
the board, has submitted that Slough Estates is correctly decided in the
Court of Appeal, but that in any event we are bound by the decision. Mr
Widdicombe has submitted that Slough Estates was wrongly decided in the
Court of Appeal, that it is inconsistent with the decision of the House of
Lords in Newbury District Council v Secretary of State for the
Environment [1981] AC 578, and that we are not bound. Despite his
interesting and powerful submission I find it unnecessary to reach any
conclusion on this topic as I am in no doubt that on the facts of the present
case the Slough Estates’ decision is irrelevant.
Mr Barnes
submitted that Hartshead negotiated a variation of Condition 3 of the 1950
permission in 1966, that in achieving relief from backfilling the spoil they
received a benefit and that the agreement was inconsistent with the continued
existence of the 1950 permission. Even if this transaction does not amount to
an election between two inconsistent rights, as in Slough Estates, he
submitted that the position was within the principle of that case. I do not
agree. Hartshead were not making an election. They notified the board that they
proposed to stop working the quarry and asked how the board would like the site
left. They got an answer and in my judgment it is quite impossible to spell out
of this transaction any abandonment of the 1950 permission. Certainly the board
did not think so: see their letter of February 19 1968 to A & J Mucklow
Ltd, who were considering buying the quarry and working it, where they said:
As you are
aware, stone quarrying can be resumed under the terms of the two existing
planning permissions although the erection of further plant exceeding 25 ft in
height or buildings would require the permission of the board under Condition 7
of the Minister’s consent of October 31 1950.
Mr Barnes
further submitted that the fact that Hartshead were suggesting non-mineral uses
for the quarry and made repeated attempts to get the board to agree is
sufficient to prove that they had abandoned the 1950 permission. Again I do not
agree. To suggest other uses, to apply for permission for other uses, indeed to
receive permission for other uses, cannot per se amount to abandonment.
In addition in the present case there were other interested parties and,
bearing in mind section 33 of the Act, for my part I very much doubt whether
Hartshead could unilaterally agree to an abandonment of the 1950 permission
without at least notifying the lessors from whom they held the quarry. In my
judgment Hartshead did not abandon the 1950 permission.
Mr Barnes next
submitted that Mr Mollatt had abandoned the 1950 permission by applying for and
receiving planning permission to use the site as a caravan park. He submitted
that as Mr Mollatt had done some levelling of the site in anticipation of the
caravan permission, the facts fell within the principle of Pilkington v Secretary
of State for the Environment [1973] 1 WLR 1527. In that case the first
permission gave permission for the building of a bungalow at the northern end
of a 1-acre site to be used as a smallholding. Eighteen months later a second
permission gave permission for the building of a bungalow in the middle of the
site. The second permission was acted upon and after the bungalow had been
built the applicant set to work to build a second bungalow at the northern end,
pursuant to the first permission. An enforcement notice was served and upheld.
The appeal was dismissed on the ground that the second bungalow should not have
been built as the implementation of the second permission made the first one
incapable of being implemented. In the present case the learned judge held that
Mr Mollatt had done nothing under the caravan permission after he had received
it, and in my judgment this case is miles away from Pilkington, nothing
had happened to prevent the lawful resumption of quarrying.
This case is
also quite different from the line of cases where implementation of a planning
permission is held to start a new planning history. In my judgment the learned
judge came to a correct decision and I would dismiss this appeal. I would also
dismiss the cross-appeal for the reasons given by my Lord.
Agreeing, SIR
DAVID CAIRNS said: If a planning permission can never be abandoned then cadit
quaestio. It may be that at some
may well be the law is shown by the doubts expressed by Lord Pearson in the Slough
Estates case in the House of Lords at p 971 in the course of his speech
which was concurred in by all the other members of the House present, and by
similar doubts expressed by two of their Lordships in the House of Lords in the
Newbury case in 1981. It is certainly not very logical that an
individual should be able, by his election or otherwise, to abandon a
permission which, by the express provisions of section 33(1) of the Town and
Country Planning Act 1971, is to enure to the benefit of the land and of all
persons for the time being interested therein.
Nevertheless,
although the decision of this court was affirmed in the House of Lords on
grounds which did not involve acceptance of the proposition that the holder of
a planning permission could elect to abandon it, that proposition, which formed
the ratio decidendi of, it seems to me, all the members of this court in
the Slough case remains binding on us. I accept that, in this context,
the word ‘election’ cannot be understood in the strict sense of a common law
election as dealt with in Spencer Bower on Estoppel by Representation in
Chapter 13, but it does involve the adoption by somebody of a course of conduct
which results in a benefit to him which would be inconsistent with a course
which he later seeks to adopt. I do not accept that the decision in the Newbury
case, despite doubts expressed about abandonment of planning permission in the
House of Lords, can be regarded as reversing this court’s view in the Slough
case.
Accordingly,
in my opinion, the judgment of Glidewell J can only be upheld if the Secretary
of State failed to apply the test which is laid down in the Slough case or if
there was indeed no factual basis to support the conclusion that there was such
an election as is required by that test. Although the Slough case is
mentioned in para 10 of the Secretary of State’s decision it is not at all
clear from the language of paras 11 to 13 of the decision that the writer was
directing his attention to the vital question whether Hartshead Quarries Ltd or
Mr Mollatt made an election resulting in a benefit to it or him. I am satisfied
that if that question was indeed in the mind of the Secretary of State there
was, in fact, no material before him on which he could find that such a benefit
was obtained.
As to the
proposition of the appellants in this court that it is possible for there to be
an abandonment of a planning permission quite apart from election, there is no
case which directly supports that view. I do not find in the cases cited to us
as indicating some indirect support for it anything substantial to that effect,
and in principle I can see no reason for supposing that there is any such wide
doctrine of abandonment in relation to planning permission.
As to the
other ground on which Pioneer Aggregates sought to have the enforcement notice
set aside, namely, that arising under section 88(1)(a) of the Town and Country
Planning Act, whereby one of the grounds on which an enforcement notice may be
set aside is that ‘planning permission ought to be granted for the development
to which the notice relates’, I agree, for the reasons which have already been
given, that no case is made out to that effect.
The appeal
and the cross-appeal were dismissed with costs. Leave to appeal to the House of
Lords was refused.
