Applicant extracting minerals from site with planning permission – Boundary change resulting in southern part of site being transferred to administration of Humberside Metropolitan Borough Council (Humberside) – Parties not realising effect of boundary change and failing to ensure permission recorded in Humberside’s list – Whether omission could be rectified – Application dismissed
By a lease for a term of 25 years dated April 28 1981 the applicant company was granted the right to extract minerals from land at Hatfield Moor. The land consisted of a northern and southern section. The applicant had extracted peat from both sections under planning permission granted on April 13 1951, and until April 11994 Doncaster Metropolitan Borough Council (Doncaster) had been the relevant mineral planning authority (MPA) for both sections. However, as a result of a boundary change on April 1 1994 Humberside, the council’s predecessors, became the MPA for the southern section. In accordance with the Environment Act 1995 Humberside duly advertised their list of all the sites within their area which had subsisting planning permission to extract minerals. Doncaster, Humberside and the applicant proceeded on the basis that Doncaster continued to be the MPA for both sections and, as a result, the permission for the southern section was not included on Humberside’s list and the applicant did not apply within the three months prescribed to be included. The applicant’s permission was only listed on Doncaster’s list. In October 1996 the applicant was informed that the permission in respect of the southern site was extinguished. The applicant applied for an order of certiorari to quash the decision of the respondent council. The issue was whether the respondent council or the court could rectify the omission.
Held The application was dismissed.
1. The Environment Act 1995 specifically required that an application to be included on the list was to be made no later than three months after the list had been advertised, and the Act clearly stated that failure to do so would result in the permission becoming extinguished. The language used was consistent with the time limit being mandatory, and therefore a discretionary power on the part of the council to extend the period in which an application could be made could not be read into the Act.
2. The result produced by the Act was not in breach of article 1 of the First Protocol of the European Convention of Human Rights. Although article 1 prohibited a person from being deprived of his possessions, it did not impair the right of a state to enforce laws deemed necessary to control the use of property. The applicant’s omission had occurred by virtue of an unique and unforeseeable event and article 1 did not require the legislature to provide for such a remote mischance.
3. The Act expressly provided for the remedy that an application to be included on the list be made within three months. Once the three months had expired, the duty on the council to include an applicant in the list no longer subsisted. Therefore the court had no power to correct the error by Humberside and order performance of Humberside’s public duty to include the southern site in their list.
Richard Gordon QC and Paul Bowen (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the applicant; Frances Patterson (instructed by the solicitor to North Lincolnshire Council) appeared for the respondents
