Mining permission — Restoration condition — Construction Whether permission lapsing owing to failure to comply with terms — Whether permission extant so that defendants required to determine new conditions — Claim allowed
The claimant operated a quarry where it had been excavating clay since 1971, pursuant to a planning permission that had been granted in that year. It applied to the defendant local planning authority, pursuant to section 96 of, and para 9 of Schedule 13 to, the Environment Act 1995 for the determination of new conditions relating to the 1971 permission.
The defendants refused that application on the ground that the permission had lapsed and that, therefore, no extant permission existed in respect of which the application could be made. They relied upon a restoration condition attached to the permission, which provided that, before extraction could recommence, the worked-out area should be progressively backfilled “to the level shown on the submitted plan or to a level to be agreed by the local planning authority in accordance with a restoration scheme to be agreed by the local planning authority”. The defendants interpreted that condition as requiring that a restoration scheme should be agreed in either case, whether the claimant was backfilling to the plan level or to a different, agreed level. They maintained that, because of the claimant’s failure to submit a restoration scheme, all subsequent extraction operations had been in breach of the permission, so that it had not been implemented and had lapsed with the passage of time.
The claimant challenged that decision, contending that the permission remained extant and that the defendants had been required to determine the application for conditions.
Held: The claim was allowed.
The restoration condition was to be interpreted as it appeared, that is, without punctuation. It followed that the word “or” encompassed the entirety of the following text. Accordingly, it was not necessary for a restoration scheme to be agreed; backfilling to the level shown on the plan was sufficient. The conditions in the 1971 permission ought not to be judged by modern standards; backfilling to the plan level would have been an acceptable standard of restoration in 1971, and the court was not obliged to construe the condition so as to require local planning authority agreement to a scheme.
Michael Humphries QC and Hereward Phillpot (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the claimant; Anthony Porten QC and James Findlay (instructed by the legal department of Hartlepool Borough Council) appeared for the defendants.
Sally Dobson, barrister