Respondent purchasing waste-processing plant – Previous owner applying to appellant council to amend condition attached to planning permission to enable generation of electricity – Council’s subcommittee resolving to amend condition – Respondent seeking to generate electricity at site – Council contending specific planning consent required – Judge finding committee’s resolution constituted determination pursuant to section 64 of the Town and Country Planning Act 1990 that no further planning permission required for such use – Council’s appeal dismissed
The respondent (Reprotech) operated a waste-processing plant on a site that it had acquired from ESEL, a company set up by the appellant council to fulfill their functions of waste disposal. The council were the local planning authority and also the waste-disposal authority under the Environmental Protection Act 1990. The council had granted permission to ESEL for the development of the site as a waste-treatment plant and household-waste site, subject to certain conditions (the existing permission). Condition 10 restricted the hours during which it was permissible to operate power-driven machinery. Before selling the site to the respondent, ESEL applied to the council, under section 73 of the Town and Country Planning Act 1990, for planning permission to amend condition 10, and the council’s subcommittee resolved in February 1991 to amend the condition to enable 24-hour use of a turbine for electricity generation at the site.
Reprotech wrote to the council stating its intention to implement the existing permission for electricity generation at the site. The council, however, set out their view that neither the existing permission nor the subsequent variation of the condition permitted the generation of power from waste. The council made it plain that specific planning consent would be required for such a use. Reprotech applied for judicial review of the council’s decision and sought a declaration that the council had made a determination under section 64 of the 1990 Act. Its primary submission was that the application, resolution and decision of the subcommittee in February 1991 was a section 64 determination of the question of whether planning permission was needed for the process of generating power from waste.
The judge held, inter alia, that ESEL had intended to apply for the right to operate an electricity generating plant on the site, and that that was what the subcommittee believed they were permitting. The subcommittee were entitled to make a section 64 determination without the necessity for an expressly-worded, or formal, application to do so, and that was what they implicitly did. The judge accordingly ruled that no further planning permission was required to use the premises for the purpose of electricity generation. The council appealed.
Held: The appeal was dismissed by a majority.
The subcommittee’s resolution was to be construed objectively and in context, to ascertain the author’s intention, in accordance with the principles set out in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57. The resolution was a determination of the section 73 application, but a reasonable applicant would also have understood it to be a determination as to whether generation of electricity would constitute development of the land. Correctly construed, the resolution was a clear indication, in writing, that the subcommittee had concluded that the generation of electricity, as proposed, did not constitute or involve development of the land beyond that already permitted: Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 applied. In the instant case, no useful purpose would have been achieved by ESEL formally applying for a determination under section 64, as that application was wrapped up in, and had been considered by, the subcommittee in relation to the section 73 application.
Timothy Straker QC and Karen Steyn (instructed by Sharpe Pritchard) appeared for the appellants; Anthony Porten QC and Jonathan Clay (instructed by Donne Mileham & Haddock, of Brighton) appeared for the respondent.
Sarah Addenbrooke, barrister
