Town and Country Planning Act 1971 — Ruling by House of Lords that a planning permission cannot be ‘abandoned’ by the party entitled to its benefit — Court of Appeal decision in Slough Estates Ltd v Slough Borough Council erroneous — In the present case Glidewell J and the Court of Appeal were bound by the Slough decision but were able to distinguish the present case from it and they decided in favour of the landowning company that a revival of quarrying for limestone did not require planning permission in the events which had happened — The planning authority, the Peak Park Joint Planning Board, appealed to the House of Lords — The facts were that a company, the predecessors of the present respondents (Pioneer Aggregates) had carried on quarrying operations on a site in the Derbyshire limestone uplands for some 16 years, from 1950 to 1966, and then ceased operations — The respondents became interested in the site in 1978 and inquired from the planning authority whether planning permission was necessary to recommence quarrying — They were informed that it was necessary as the previous planning permission had been abandoned — The respondents decided to test the matter by carrying out some token quarrying operations — As a result they were served with an enforcement notice, giving rise to the present litigation — In holding that the Slough decision was wrong in recognising the principle of abandonment of a planning permission, the House of Lords emphasised that planning law was entirely the creature of statute and constituted a comprehensive code into which it was not permissible to introduce conceptions derived from private law unless expressly authorised by Parliament or necessary to give effect to the purpose of the legislation — There was nothing in the legislation to justify the introduction of the idea of abandonment and, on the contrary, section 33(1) of the 1971 Act showed that permission enured for the benefit of the land and all persons for the time being interested therein — The House rejected an alternative contention that planning permission was here required because the original development contemplated had been completed — This was based on an incorrect reading of the permission as being for two separate developments — Appeal by planning authority dismissed
The appellants
in this appeal were the Peak Park Joint Planning Board, who appealed from a
decision of the Court of Appeal (reported at (1983) 267 EG 941, [1983] 2 EGLR
168) upholding a decision of Glidewell J, who had allowed an appeal from a
decision of the Secretary of State in favour of the appellants. The respondents
to the present appeal were Pioneer Aggregates (UK) Ltd, on whom the appellants
had served an enforcement notice for alleged breach of planning control by
carrying out quarrying activities without planning permission.
Michael Barnes
QC and Harold Singer (instructed by Theodore Goddard & Co, agents for C J
Harrison, solicitor, Peak Park Planning Board) appeared on behalf of the
appellants; David Widdicombe QC and C R George (instructed by Coward Chance)
represented the respondents.
In his speech
LORD SCARMAN said: In this appeal two questions fall to be considered by the
House. The first is a question of legal principle: whether a planning
permission for the development of land can be abandoned by act of a party
entitled to its benefit. Abandonment, it is said, has the effect that
thereafter no person can lawfully resume the hitherto permitted development
without obtaining a fresh planning permission. The local planning authority,
appellant in this appeal, submits that abandonment effective to terminate a
planning permission is recognised by law. The respondent, the owner of land to
which the permission in dispute relates, submits that no such abandonment is
recognised by law.
If the answer
to the question of principle be in the affirmative, it will become necessary to
consider whether upon the facts of the case the permission was abandoned. If it
were, the appeal (on this premise) would succeed. But if the question of
principle should be answered in the negative, the appeal must be dismissed
unless the House is prepared to accept the appellant’s alternative contention,
which raises the second question: namely, has the development, which was
permitted by the relevant planning permission, been completed? It is conceded, correctly, that, if what was
then permitted has been completed, a resumption of the same type of operations
would be not the resumption of the earlier development but a new development
requiring a fresh planning permission. The first question is of importance in
the planning law. If, however, the second question be answered in the
affirmative, the appeal would have to be allowed irrespective of the answer to
the first. The second question depends upon the proper construction of the
terms of the relevant planning permission and upon their application to the
facts of the case.
My Lords, I
propose first to outline such of the facts as are necessary to determine the
two main questions, and secondly to consider those two questions. The
subsidiary issue as to whether the permission has been abandoned will not arise
unless in law it is possible to abandon it.
The Facts
For a full
statement of the facts I would refer to the admirable judgment of Glidewell J
before whom the appeal came from the enforcement notice after being dismissed
by the Secretary of State.
The Peak Park
Joint Planning Board, the appellant, is the local planning authority for the
part of Derbyshire which includes the area of land with which the appeal is
concerned. Pioneer Aggregates (UK) Ltd, the respondent, is the owner of the
land. By an enforcement notice dated February 25 1980 the board required
Pioneer to remedy what in the notice was alleged to be a breach of planning
control, namely development of the land by certain mining operations. Pioneer
admits the operations but contends that they constituted no breach of planning
control. The case is really a test case. Pioneer is not mining on the site. It
knew that the local planning authority took the view that to resume mining on
the site would be a breach of planning control. It fired one blast to remove
some stone so as to bring the difference of opinion to a head. Pioneer has done
nothing further save to exercise its rights of appeal against the enforcement
notice.
The site to
which the notice relates is an area of some 25 acres within the Peak District
National Park. It is to the north of a lane leading to the hamlet of Heathcote.
I shall refer to this area as the northern or the appeal site. There is on the
appeal site an existing limestone quarry and attendant plant and buildings. But
until the test firing of February 1980 there had been no quarrying or other
mining operations since 1966.
The history of
mining on the appeal site, so far as presently relevant, can be shortly stated.
On October 31 1950 the then Minister of Town and Country Planning (to whom at
the time application for planning permission to work minerals had to be made)
granted Hartshead Quarries Ltd permission for the mining and working of
limestone on an area of land which included the appeal site. This area
included, additionally to the appeal site, a larger piece of land on the south
side of Heathcote Lane and separated from the appeal site by the lane. The
permission allowed for the construction of a tunnel under the lane. The reason
for the tunnel (which, however, was never constructed, though a detailed
permission was granted in 1955) becomes clear from a study of the conditions
imposed for the disposal of waste material. So long as mining was confined to
the appeal site, waste material was to be tipped on to a spoil bank. If and when
mining was extended to the area south of the lane, the waste material was to be
brought across (or under) the lane and tipped in the quarry made by the
excavations on the northern site. Since they bear on the second question, it
will be convenient at this stage to quote in full two of the conditions subject
to which permission was granted:
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. 4. On the conclusion of quarrying in the area north of the road all
mineral stocks shall be stored in that area.
It is clear
from these two conditions that quarrying on the land to the south of the lane
was envisaged as (allowably) continuing after conclusion of quarrying to the
north, but that, if it did, waste material should no longer be deposited on the
spoil bank but in the northern quarry and mineral stocks were to be stored on
the northern site.
On November 9
1962 a further permission was granted extending the area of excavation and of
tipping subject to conditions. Nothing turns on this permission, which is to be
read merely as an extension of the 1950 permission subject to certain
conditions.
Hartshead
extracted limestone from the appeal site from 1950 to 1966. On September 15
1966 they wrote to the board a letter in which they gave notice that they would
cease quarrying not later than December 31 of that year. They had confined
their operations to the appeal site, although they had acquired the land, or,
at the very least, the mineral rights in the land to the south of the lane.
Their letter dealt with all the land covered by the planning permission, ie the
land both to the south and the north of the lane. It indicated clearly their
intention to cease quarrying and to vacate all the land and to remove their
plant and buildings. The board relies on this letter and the subsequent course
of negotiations to establish their case that Hartshead, by electing to treat
the 1950 permission (together with its 1962 extension) as at an end, abandoned
it.
I pass over
the negotiations which followed upon Hartshead’s ceasing from mining operations
save only to mention that they negotiated with the board a satisfactory
solution to the restoration problem. On January 6 1967 the board wrote to
Hartshead informing them that the restoration conditions had been met to its
satisfaction. The board did not insist on a full compliance — probably because
it believed that Hartshead’s departure marked the finish of mining operations
on the land to which the permission related.
In 1978
Pioneer became interested in the area covered by the permission of October 31
1950 as extended by that of November 9 1962. It asked whether planning
permission to quarry was needed. By letter dated January 29 1979 the board took
the two points which now fall to be decided by the House. The board said:
In relation
to the entire quarry (one Planning Unit) for which planning 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.
The letter is
ambiguous. It is not clear whether it refers to all the land covered by the
1950 permission or only to the land north of the lane (the appeal site). I read
it as alleging that planning permission in relation to all the land to which
the 1950 permission related had been abandoned. Whether that be right or wrong,
the letter certainly did go on to deal explicitly with the appeal site and in
relation to that site made the second, alternative point upon which the appellant
relies in the appeal. The board said:
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
[of the 1950 permission], cannot now be opened up without a new express
permission.
The First
Question — Abandonment
If the board
is right, a valid planning permission can be abandoned by the conduct of a
landowner or occupier of land; and the effect of the party’s conduct will be to
bind all persons interested in the land now or hereafter whether or not they
have notice of the abandonment. The planning permission would be entered in a
public register: but not so its abandonment. Nor would it be possible by
inspection of the land to discover whether the permission had been abandoned,
for the absence of implementation of a planning permission is no evidence that
a valid permission does not exist. It is perhaps not surprising that no trace
of any such rule can be found in the planning legislation. If there be such a
rule, it has been imported into the planning law by judicial decision.
The case upon
which the appellant relies for the existence of such a rule is Slough
Estates Ltd v Slough Borough Council (No 2). The case is reported as
follows: at first instance before Megarry J (1968) P & CR 326; in the Court
of Appeal [1969] 2 Ch 305, and in the House of Lords [1971] AC 958. It is the
only reported case in which a rule of abandonment has been recognised as
applicable to a planning permission. The plaintiff owned a trading estate of
some 500 acres. In January 1945, when about half the estate had been developed,
the company sought permission to develop the remaining 240 acres. On October 17
1945 the council wrote to the company permitting development for industrial
purposes. But between 1945 and 1965 the company behaved as if the 1945
permission did not exist. The company sought and obtained fresh planning
permissions for factory building covering about 150 of the 240 acres. In 1955,
90 acres remained undeveloped. The company, in accordance with their post-1945
practice, applied for permission to develop the 90 acres for industrial
buildings: but this time it was refused. The company then applied for and
obtained £178,545 compensation for loss of development value.
In 1966 the
company made a startling change of course: it applied to the High Court for a
declaration (inter alia) that the permission of October 17 1945 was
still in force. The trial judge, Megarry J, held that the terms of the letter
of October 17 1945 were so obscure that the planning permission was ineffective
but embarked, obiter, on a lengthy discussion as to the possibility of
abandonment, expressing the view that, if an owner or occupier of land evinced
by his conduct an unequivocal intention to abandon planning permission, such
permission would be extinguished by abandonment. The Court of Appeal ruled that
the October 1945 letter upon its true construction was a valid outline planning
permission but held that the company by claiming and obtaining compensation had
elected to abandon its rights under the permission and could not now revive the
permission. The company had made its election between inconsistent rights, the
effect of which was to extinguish the permission. On appeal, this House held that
the purported permission of 1945 was ineffective because it failed to identify
the land to which it related. Lord Pearson, with whose speech the other members
of the House agreed, expressly reserved the question whether a planning
permission could be abandoned.
The decision
of the Court of Appeal was, of course, binding on Glidewell J and the Court of
Appeal in the present case. Both courts refused, however, to accept that the Slough
decision introduced into the planning law any general rule of abandonment,
treating it as a limited exception to what they held was the general rule,
namely that planning permission cannot be extinguished merely by conduct They
went on to find that the facts of the present case did not fall within the Slough
exception of election. Accordingly, Glidewell J allowed Pioneer’s appeal from
the minister (who had held that planning permission could be abandoned), and
the Court of Appeal dismissed the board’s appeal from his decision. Neither
court dealt expressly with the second question raised in the appeal, though it
was, the House was informed, raised. Impliedly, they must be considered to have
rejected the board’s contention.
My Lords, on
the question of abandonment I find myself in agreement with both courts below
that there is no such general rule in the planning law. In certain exceptional
situations not covered by legislation, to which I shall refer, the courts have
held that a landowner by developing his land can play an important part in
bringing to an end or making incapable of implementation a valid planning
permission. But I am satisfied that the Court of Appeal in the Slough
case erred in law in holding that the doctrine of election between inconsistent
rights is to be incorporated into the planning law either as the basis of a
general rule of abandonment or (which the courts below were constrained to
accept) as an exception to the general rule that the duration of a valid
planning permission is governed by the provisions of the planning legislation.
I propose now to give my reasons for reaching this conclusion.
Planning
control is the creature of statute. It is an imposition in the public interest
of restrictions upon private rights of ownership of land. The public character
of the law relating to planning control has been recognised by the House in Newbury
District Council v Secretary of State for the Environment [1981] AC
578. It is a field of law in which the courts should not introduce principles
or rules derived from private law unless it be expressly authorised by Parliament
or necessary in order to give effect to the purpose of the legislation. The
planning law, though a comprehensive code imposed in the public interest, is,
of course, based on the land law. Where the code is silent or ambiguous, resort
to the principles of the private law (especially property and contract law) may
be necessary so that the courts may resolve difficulties by application of
common law or equitable principles. But such cases will be exceptional. And, if
the statute law covers the situation, it will be an impermissible exercise of
the judicial function to go beyond the statutory provision by
solution to the problem being considered. As ever in the field of statute law
it is the duty of the courts to give effect to the intention of Parliament as
evinced by the statute, or statutory code, considered as a whole.
Parliament has
provided a comprehensive code of planning control. It is currently to be found
in the Town and Country Planning Act 1971, as subsequently amended. Part II of
the 1971 Act imposes upon local planning authorities the duty of preparing and
submitting to the minister development plans formulating their policy and their
general proposals for the development and use of land in their area. Widespread
publicity has to be given to the preparation or alteration of such plans. There
is provision for local public inquiries in certain specified circumstances.
Part III imposes general planning control. Section 23(1) declares the rule:
subject to the provisions of the section, planning permission is required for
the development of land. There are certain exceptions, of which the most
notable are rights in connection with the use of land existing prior to certain
specified dates related to the introduction of planning control (commonly
called ‘existing use rights’): sections 23 and 94 of the Act. Section 29 deals
with the grant of planning permission: note that the local planning authority
must have regard to the provisions of the development plan. In determining an
application for permission the authority must take into account ‘any
representations’ made to them within the time specified in the section. And
there are extensive provisions for giving publicity to applications (sections
26 to 28).
Section 33(1)
is of crucial importance. It provides:
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.
The clear
implication is that only the statute or the terms of the planning permission
itself can stop the permission enuring for the benefit of the land and of all
persons for the time being interested therein. I would comment, in passing,
that the provision in section 33(1) was in the law as section 21 of the Town
and Country Planning Act 1962, when the Slough case [1969] 2 Ch 305 was
decided: but the Court of Appeal made no reference to it.
The provisions
in the Town and Country Planning Act 1971 governing the duration, modification,
revocation, and termination of planning permission are extensive; see sections
41 to 46. It is unnecessary to analyse them in detail. Perhaps the most
significant common feature of the various procedures is the involvement of
public authority, local and central, when questions as to duration,
modification, revocation, or termination of planning permission arise. And, of
course, the procedures involve notice to persons interested as well as to the
applicant and/or landowner.
Orders can
also be made by a local planning authority for the discontinuance of a use of
land or for the removal of buildings under section 51. The Secretary of State
must confirm any such order made, and again there is provision for publicity.
Section 52
enables a local planning authority to enter into an agreement with a landowner
restricting or regulating the development or use of land. The agreement is
registrable.
Indeed, the
permissions and orders to which I have briefly referred are, with one
exception, either registered in a register maintained under the planning
legislation, or registrable as local land charges under the Local Land Charges
Act 1975. The exception is a notice (‘completion notice’) under section 44 of
the Act of 1971 setting a time-limit after which, subject to confirmation by
the minister, a planning permission shall cease to have effect. Such notices
are, however, the subject of a specific, though optional, inquiry of the local
authority contained in the officially approved form of inquiry used in
connection with searches of the local land charges register.
Finally, it is
necessary to refer to the recent amendment to the Act of 1971, namely the Town
and Country Planning (Minerals) Act 1981. Section 7 provides that there shall
be introduced into the Act of 1971 a new section 44A setting a limit to the
duration of a planning permission to work minerals. Section 10 is directly in
point. It introduces into the Act of 1971 a new section 51A under which the
mineral planning authority, if it appears that the working of minerals has
permanently ceased on any land, may prohibit its resumption. If such a
prohibition is contravened, a criminal offence is committed. These provisions
are not yet in force. But they strongly reinforce the view of the law relating
to planning control as being a comprehensive code, and they show clearly that
the problem of the future of planning permission for the working of minerals
where mining operations have permanently ceased is left to public authority,
and that subject to the usual safeguards such permission can be effectively
terminated by order under the new section 51A.
Viewed as a
question of principle, therefore, the introduction into the planning law of a
doctrine of abandonment by election of the landowner (or occupier) cannot, in
my judgment, be justified. It would lead to uncertainty and confusion in the
law, and there is no need for it. There is nothing in the legislation to
encourage the view that the courts should import into the planning law such a
rule — recognised though it is in many branches of the private law (eg the law
of easements, the commercial law, and the law of trade-marks) as Megarry J in
his learned, though obiter, discussion of the principle has shown in Slough
Estates Ltd v Slough Borough Council (No 2) [1969] 2 Ch 305.
There is,
however, quite apart from the Slough case a number of reported judicial
decisions which, upon first sight and before analysis, might seem to suggest
that there is room in the planning law for a principle, or an exception,
allowing the extinguishment of a planning permission by abandonment.
Three classes
of case can be identified. The first class is concerned not with planning
permission but with existing use. In Hartley v Minister of Housing
and Local Government [1970] 1 QB 413 the Court of Appeal (Lord Denning MR,
Widgery and Cross LJJ) held that the minister as the tribunal of fact was
entitled to find on the evidence that the resumption of a car sales use on a
site where previously there had been two uses, namely car sales and a
petrol-filling station, was after a cessation of the car sales use for some four
years a material change of use and so properly the subject of an enforcement
notice. The minister, the court held, was entitled to find as a fact that the
previous use had ceased, having been abandoned by the owner or occupier of the
land. This was not a case of abandoning a planning permission. There was in
fact no existing use of the land for car sales because the use had ceased years
ago. An existing use, which has been deliberately ended before a resumption
arises, is not existing at the date of resumption: accordingly, the resumption
was a material change of use, and so required planning permission. The issue
was one of fact, as Widgery LJ emphasised in his judgment. And it had nothing
whatever to do with the extinguishment of a planning permission. Widgery LJ in
the course of his judgment made a significant comment, at p 422:
When the car
sales use ceased in 1961 there could be no question of a material change of use
on which an enforcement notice could be founded in reliance on that fact alone.
The use no
longer existing, the change back four years later was the material change of
use on which the notice could be founded.
The second
class of case has been described as that of the ‘new planning unit’ — a term
coined by Widgery LJ in Petticoat Lane Rentals Ltd v Secretary of
State for the Environment [1971] 1 WLR 1112. This line of cases was
discussed in Newbury District Council v Secretary of State for the
Environment [1981] AC 578 (by Viscount Dilhorne, at pp 598-599 and by
myself, at pp 616-617). I will not repeat what was then said. Two comments,
however, should be made. First, the cases are, without exception, cases where
existing use rights were lost by reason of a new development sanctioned by a
planning permission. There is no case, so far as I am aware, in which a
previous planning permission has been lost by reason of subsequent development
save in circumstances giving rise to the third class of case, which I shall
discuss in a moment. In the class of case now under discussion the existing use
right disappears because the character of the planning unit has been altered by
the physical fact of the new development. As Lord Parker CJ remarked in the
first of the cases, Prossor v Minister of Housing and Local
Government (1968) 67 LGR 109, at p 113:
The planning
history of this site, as it were, seems to me to begin afresh . . . with the
grant of this permission . . . which was taken up and used [emphasis
supplied].
Secondly, it
is clear that where the evidence fails to establish the creation by development
actually carried out on the land of a new planning unit the grant of planning
permission does not preclude a landowner from relying on an existing use right.
Indeed, as Newbury’s case itself shows, existing use rights are hardy
beasts with a great capacity for survival.
The third
class of case comes nearer to the facts and law of the present appeal. These
cases are concerned not with existing use rights but with two planning
permissions in respect of the same land. It is, of course, trite law that any
number of planning permissions can validly co-exist for the development of the
same land, even though they be mutually inconsistent. In this respect planning
permission reveals its true nature — a permission that certain rights of
ownership may be exercised but not a requirement that they must be.
But, what
happens where there are mutually inconsistent permissions (as there may well
be) and one of them is taken up and developed?
The answer is not to be found in the legislation. The first reported
case appears to have been Ellis v Worcestershire County Council
(1961) 12 P & CR 178, a decision of Mr Erskine Simes QC to which Lord
Widgery CJ referred with approval in what must now be regarded as the leading
case on the point, Pilkington v Secretary of State for the
Environment [1973] 1 WLR 1527.
Mr Erskine
Simes said, at p 183 in a passage which Lord Widgery CJ was later to describe
as exactly illustrating the principle:
If permission
were granted for the erecton of a dwelling-house on a site showing one acre of
land as that to be occupied with the dwelling-house, and subsequently
permission were applied for and granted for a dwelling-house on a different
part of the same acre which was again shown as the area to be occupied with the
dwelling-house, it would, in my judgment, be impossible to construe these two
permissions so as to permit the erection of two dwelling-houses on the same
acre of land. The owner of the land has permission to build on either of the
sites, but wherever he places his house it must be occupied with the whole
acre.
Pilkington was a Divisional Court decision. It has been approved by the Court
of Appeal in Hoveringham Gravels Ltd v Chiltern District Council
(1977) 76 LGR 533. Its facts were that the owner of land was granted planning
permission to build a bungalow on part of the land, site ‘B’. It was a
condition of the permission that the bungalow should be the only house to be
built on the land. He built the bungalow. Later the owner discovered the existence
of an earlier permission to build a bungalow and garage on another part of the
same land, site ‘A’. That permission contemplated the use of the rest of the
land as a smallholding. He began to build the second bungalow, when he was
served with an enforcement notice alleging a breach of planning control. The
Divisional Court held that the two permissions could not stand in respect of
the same land, once the development sanctioned by the second permission had
been carried out. The effect of building on site ‘B’ was to make the
development authorised in the earlier permission incapable of implementation.
The bungalow built on site ‘B’ had destroyed the smallholding: and the erection
of two bungalows on the site had never been sanctioned. This was certainly a
commonsense 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.
My Lords, I
find nothing in any of these cases to cast doubt on the view of principle to
which a study of the legislation has led me. Indeed, Pilkington’s case
[1973] 1 WLR 1527 may be contrasted with the Slough case [1971] AC 958
in that it reveals the proper exercise of the judicial function in a field of
codified law. It is a decision supporting and strengthening the planning
control imposed by Parliament in contrast with the Court of Appeal’s decision
in the Slough case, which renders control uncertain, is likely to cause
confusion, and which to that extent works to undermine the intention of
Parliament.
Strangely and
ironically, it would appear that the Slough case could have been decided
along Pilkington lines. For, assuming the validity of the 1945 planning
permission in the Slough case, several acres of the estate which in the 1944-45
plan had been included as a car park were covered with factory buildings
constructed pursuant to a subsequent planning permission. Under the Pilkington
rule the subsequent development would have sufficed to make the outline plan
approved in 1945 incapable of implementation. Lastly, it will be observed that
the Pilkington situation resembles the ‘new planning unit’ class of case
in that a permitted development which has been carried out has so altered the
character of the land that its planning history now begins with the new
development.
For these
reasons I would answer the first question in the appeal in the negative. There
is no principle in the planning law that a valid permission capable of being
implemented according to its terms can be abandoned.
The Second
Question — Completion of Permitted Development
I turn now to
the second of the two main questions in the appeal. The board submits that upon
the true construction of the terms of the 1950 permission as extended by the
1962 permission the permitted development to the north of Heathcote Lane has
been completed and cannot be resumed without a fresh planning permission. It is
recognised that the area of land to which the 1950 permission related comprised
more than the appeal site in that the permission related to areas to the north
and south respectively of Heathcote Lane and was drafted so as to grant
permission to work minerals in both areas. It is said, however, that it was a
permission for two separate developments and that, upon the cesser by Hartshead
of mining operations north of the lane together with the restoration of the
land to the satisfaction of the board, the development was completed so that a
resumption now in that area would be a new development requiring fresh planning
permission. Particular reliance is placed on conditions 3 and 4 of the
permission (the two conditions which I have earlier set out) whereby it was
provided that on the completion of quarrying on the northern site waste
material should be deposited in the quarry on the northern land and mineral
stocks should be stored on the northern land. The suggestion is that these
conditions indicate either a completion of the authorised development of the
northern land before the commencement of a separate development south of the
lane or, at the very least, two separate developments whether contemporaneous
or successive.
My Lords, I do
not so read the permission. In terms it relates to the whole area of land south
and north of the lane. It is a permission to mine and work minerals in that
area. It contains detailed conditions as to method of working and as to
restoration work after quarrying. The permission plainly envisages the
continued use of the northern land for mineral working even after quarrying in
that area has ceased; for the northern land is to be used at all times both
during and after quarrying north of the lane for the deposit of waste material
and for the processing and storage of minerals, from whatever part of the land
to which the permission relates they are won. The permission, as I read its
terms, contemplated an authorised development of the land south and north of
the lane treated as one planning unit.
I reject,
therefore, the submission that the permission was for two separate developments
and that one of them was complete when Hartshead ceased operations in 1966. I
suspect that in 1966 the board confused the commercial termination of
Hartshead’s operations with the completion of the development permitted by the
1950 permission as extended in 1962. A commercial decision to terminate
operations upon land where there is a valid planning permission for such
operations cannot by itself extinguish the planning permission unless the terms
of the permission provide that such shall be the effect of the termination. To give
such effect to a commercial decision in the absence of terms to that effect in
the planning permission would be to fly in the face of section 33(1) of the
Town and Country Planning Act 1971 which lays down that, save where the
permission so provides, the grant of planning permission enures for the benefit
of the land and of all persons for the time being interested in the land.
For these
reasons I would dismiss the appeal with costs.
LORDS FRASER
OF TULLYBELTON, ROSKILL, BRIDGE OF HARWICH and BRANDON OF OAKBROOK expressed
agreement with the speech of Lord Scarman and did not add any further
observations.
Appeal
dismissed with costs.
