Order preventing resumption of quarrying — Whether Secretary of State required to review order or hear appeal
Land was used for quarrying until 1961.
In 1977 planning permission was granted for, inter alia, the repair of
plant and commercial vehicles. The council, in pursuance of their powers under
para 3 of Schedule 9 to the Town and Country Planning Act 1990, made a
prohibition order in December 1991 preventing the resumption of quarrying. At
an inquiry in September 1992, evidence was given of renewed interest in the
resumption of quarrying. The inspector, in seeking to determine under para 3
whether on the evidence available, the winning and working of minerals to any
substantial extent at Ewenny Quarry was unlikely, took into consideration the
evidence of the renewed interest; that evidence was not available before the
date of the prohibition order. The Secretary of State for Wales refused to
confirm the order; he was satisfied that since the order was made there was an
interest by a number of firms in resuming quarrying. The council’s application
challenging that decision on the ground that the Secretary of State was not
permitted to consider evidence after the date of the order, was dismissed. On
appeal, the court was asked to determine the following questions: (1) when the
Secretary of State has caused an inquiry
Schedule 9 to the Act, is his function to review the decision of the mineral
planning authority (‘MPA’) or is it to hear the appeal against that decision de
novo; (2) should the Secretary of State consider the matter by reference
only to the position at the date when the order was made by the MPA, or can he
consider the position as at the date of his own decision; and (3) whether he
was unreasonable and had given clear reasons.
The Secretary of State’s function is to
treat the inquiry as an appeal and consider all matters de novo. If he
were limited to reviewing the decision of the MPA it would be unduly
restrictive and might cause great unfairness if objectors were not given an
opportunity of putting relevant material before the MPA: see p43F. The
Secretary of State is entitled to consider matters arising as they exist at the
date of the order unless there is no other tenable construction: see p44D. The
Secretary of State had not adopted the wrong test in deciding what was
‘unlikely’ and he was not Wednesbury unreasonable. He had given clear
reasons: see p45D.
Appeal against the decision of Macpherson
J
This was an appeal brought by Mid
Glamorgan County Council from an order made by Macpherson J (on December 15
1993) refusing to quash the decision of the Secretary of State for Wales, who
had upheld a prohibition order made by the council.
(instructed by the solicitor to Mid Glamorgan County Council) appeared for the
appellants.
Treasury Solicitor) appeared for the first respondent, the Secretary of State
for Wales.
(Southerndown)Ltd, did not appear and were not represented.
BALCOMBE LJ: This appeal by Mid Glamorgan County
Council (‘the council’) from an order of Macpherson J made on December 15 1993
raises a short point on the construction of those provisions of the Town and
Country Planning Act 1990 (‘the Act’) which are concerned with the prohibition
of resumption of mineral working.
Ewenny Quarry (‘the quarry’) is a
limestone quarry near Bridgend. Quarrying took place there from the end of the
19th century. The last formal planning permission for such operations was on
October 2 1953 and quarrying ceased in 1961. Thereafter the quarry was used for
other activities, including the repair of plant and commercial vehicles, for
which planning permission was granted in 1977. By 1991 the council had decided
to prevent the resumption of quarrying at some inactive sites and on December
17 1991 made an order (‘the order’) prohibiting the resumption
to the powers conferred by para 3 of Schedule 9 to the Act, of which the
relevant provisions are:
3. (1) Where it appears to the mineral
planning authority–
(a) that
development of land–
(i)ii consisting of the winning and working of
minerals; or
(ii)i involving the depositing of mineral waste, has
occurred; but
(b) the
winning and working or depositing has permanently ceased, the mineral planning
authority may by order
(i)ii prohibit the resumption of the winning and
working or the depositing; and
(ii)i impose, in relation to the site, any such
requirement as is specified in sub-paragraph (3).
(2) The mineral planning authority may
assume that the winning and working or the depositing has permanently ceased
only when–
(a) no
winning and working or depositing has occurred, to any substantial extent, at
the site for a period of at least two years; and
(b) it
appears to the mineral planning authority, on the evidence available to them at
the time when they make the order, that resumption of the winning and working
or the depositing to any substantial extent at the site is unlikely …
4. (1) An order under paragraph 3 shall not
take effect unless it is confirmed by the Secretary of State, either without
modification or subject to such modifications as he considers expedient.
(2) Where a mineral planning authority
submit such an order to the Secretary of State for his confirmation under this
paragraph, the authority shall serve notice of the order–
(a) on
any person who is an owner or occupier of any of the land to which the order
relates, and
(b) on
any other person who in their opinion will be affected by it.
(3) The notice shall specify the period
within which any person on whom the notice is served may require the Secretary
of State to give him an opportunity of appearing before, and being heard by, a
person appointed by the Secretary of State for that purpose.
(4) If within that period such a person
so requires, before the Secretary of State confirms the order he shall give
such an opportunity both to him and to the mineral planning authority.
Notices of objection were received,
including one from the second respondent, Jenkins Garages (Southerndown) Ltd,
which is the owner and occupier of the quarry. Accordingly, the first
respondent, the Secretary of State for Wales, appointed Mr G Sloan (‘the
inspector’) to hold a public local inquiry to hear objections to the order. The
inquiry was held by the inspector on September 9 and 10 1992. At the inquiry
the council, the second respondent and other objectors were represented and
gave evidence. Four individual supporters of the order also gave evidence. The
evidence before the inspector included evidence that, after the date that the
council made the order, renewed interest had been shown in the resumption of
quarrying at the quarry.
On October 5 1992 the inspector made a
long and careful report to the
firstly whether the winning and working
of mineral at Ewenny Quarry has occurred to any substantial extent within a
period of at least 2 years before the Order was made and secondly whether on
the evidence available, the winning and working of mineral to any substantial
extent at Ewenny Quarry was unlikely.
He answered the first question in the
negative, but the second also in the negative and in so doing gave weight,
against the objections of the council, to the evidence of renewed interest in
the working of the quarry after the date of the order. He indicated that he
would have come to the same conclusion even without the new evidence. He
recommended to the Secretary of State that the order be not confirmed.
The Secretary of State accepted this
recommendation by his decision letter of April 29 1993 addressed to the county
secretary and solicitor of the council. Para 5 of the letter is in the
following terms:
Your Authority submitted that the
Secretary of State’s role in considering this application was limited to a
review of its decision to see whether it was a reasonable conclusion to reach
on the evidence available at the time the Order was made. The Secretary of
State does not accept this view. He considers that a Prohibition Order should
be regarded as analogous to a Compulsory Purchase Order where he has regard to
all the relevant evidence before him at the time the decision is made. Thus he
considered that in deciding whether or not to confirm the Order he should take
into account all the evidence regarding the recent negotiations concerning the
quarry. Nevertheless, the Secretary of State has first considered the evidence
that was before your Authority at the date when the Order was made and he has
then gone on to consider the significance of the evidence relating to the
period after that date.
After making further reference to the
inspector’s report, the letter stated that the Secretary of State had concluded
that he could not be satisfied that, at the date of the order, it was more
likely that the resumption of mineral working would not take place than that it
would. He also agreed with the inspector that the events which had taken place
since the order was made showed that there was a continuing interest by a
number of firms in use of material from the quarry. He accepted the inspector’s
recommendation and refused to confirm the order.
The council then brought proceedings for
judicial review to quash the Secretary of State’s decision refusing to confirm
the order. That application came before Macpherson J on December 15 1993, who
refused to quash the decision of the Secretary of State. The judge also refused
leave to appeal, but leave was subsequently granted by Mann LJ on February 24
1994.
The issues on this appeal are:
(1) When the Secretary of State has
caused an inquiry to be held in relation to the making of a prohibition order
under para 3 of Schedule 9 to the Act, is his function to review the decision
of the mineral planning authority (‘the MPA’) or is it (where appropriate) to
hear an appeal against that decision?
(2) Should the Secretary of State
consider the matter by reference only to the position at the date when the
order was made by the MPA or can he consider the position as at the date of his
own decision?
(3) Was the decision of the Secretary of
State unreasonable?
(4) Did the Secretary of State give
proper, intelligible and adequate reasons for his decision.
1. The function of the Secretary
of State
The provisions now contained in para 3 of
Schedule 9 to the Act are derived from section 51A of the Town and Country
Planning Act 1971 as introduced by section 10 of the Town and Country Planning
(Minerals) Act 1981, with effect from May 19 1986. They form a discrete and
self-contained code. I do not find it helpful in construing these provisions so
as to determine the function of the Secretary of State to compare them with
other, and different, provisions. Thus, section 78 of the Act gives a right to
appeal to the Secretary of State against the planning decisions of a local
planning authority or their failure to take such decisions, while section 79
provides that on such an appeal the Secretary of State ‘may deal with the
application as if it had been made to him in the first instance’. Section 226 of
the Act, which deals with the compulsory acquisition of land for development
and other planning purposes provides that a local authority may acquire land
compulsorily for such purposes ‘on being authorised to do so by the Secretary
of State’ and then incorporates the provisions of the Acquisition of Land Act
1981.
So I turn to consider the specific
provisions of para 3 of Schedule 9. The following points are significant:
(1) There is no requirement on the MPA to
give notice of their intention to the land owner or occupier, or to anyone
else, before making the order. There is equally no obligation on the MPA to
entertain representations by the land owner or others. That this omission is
not accidental, but is deliberate, can be seen by a comparison with the
provisions of Schedule 11 to the Act. Under these provisions the level of
compensation payable for the making of a prohibition order may be modified, ie
lessened, if the MPA carried out special consultations about the making and
terms of an order before they made it. Special consultations are defined as
consultation with any person who has an interest in the land affected, or the
minerals in, on or under it: see paras 6, 8(c) and 12 of Schedule 11. The
object of these provisions seems reasonably clear. The MPA may take the view
that if the land owner were to know of their intention to make a prohibition
order he might immediately resume working the minerals and thus preclude the
existence of the precondition under para 3(2)(a). He might either, or as well,
take other steps towards providing evidence, to be available at the time when
the MPA made the order, that resumption of the working was likely. If the MPA
take this view they need not warn the land owner of their intention, but at the
price of being potentially liable to pay more by way of compensation than if
they had given him prior notice. (In the present case special consultations did
take place between the council and the second respondent in July 1991.)
(2) The MPA cannot make a prohibition
order unless satisfied that no winning or working of minerals has occurred, to
any substantial extent, at the site for a period of at least two years: para
3(2)(a). This must mean the period of two years ending with the making of the
order: it cannot be open to the MPA to choose any period of two years, however
distant, when the winning and working of minerals had ceased; in any event this
meaning is clear from the use of the words ‘resumption of the winning
and working’ in para 3(2)(b) (emphasis supplied).
(3) The MPA can only base their
assumption on the likelihood of the resumption of the winning and working of
material ‘on the evidence available to them at the time they make the order’.
It is not easy to understand the object of this provision. Clearly the MPA
cannot base any assumption on material which has not yet come into existence.
In my judgment, the provision must be intended to ensure that the MPA acts on
some form of evidence–even if not evidence in the strict legal sense, since
they are not obliged to hold an inquiry–but they must not make an assumption
without some evidence to justify it.
(4) A prohibition order requires
confirmation by the Secretary of State. He may make such modifications to the
order as he considers expedient.
(5) It is at this stage that notice must
be served on the owner and occupier of the land and any other person affected
by the order. This may be the first they know of the order.
(6) These persons are then given the
opportunity to demand an inquiry, at which they are entitled to appear and be
heard. There is nothing in the provision which in any way limits the nature of
the material which the objectors to (or supporters of) the order may put before
the inspector holding the inquiry. There is no provision equivalent to para
3(2)(b).
In my judgment, it is not possible to
deduce from this framework that the function of the Secretary of State is only
to review the decision of the MPA, in the sense of saying whether or not it was
properly open to the MPA, on the material before them at the time, to make the
prohibition order. Such a limited function would be unduly restrictive and
might cause great unfairness to the land owner or other objectors, who (if
there was no special consultation) will not have had the opportunity to put
material, which may be highly relevant, before the MPA. In my judgment, the
function of the Secretary of State is to treat the inquiry as an appeal and to
consider all matters de novo, subject only to the possible limitation,
which I consider under the next issue.
2. The date by reference to
which the Secretary of State is to consider the position
Again in reliance on the words of para
3(2)(b) the council submit that, even if the function of the Secretary of State
is to consider all matters de novo, the matters to be considered require
determination only of the factual and evidential position at the date when the
MPA made the order. They make the valid point that if the Secretary of State is
not so limited, then any order can in theory be defeated by the land owner
taking steps to resume working after the date of the order and before the
inquiry or taking steps in that period to establish the likelihood of a
resumption of working. This
planning law at p495 and his note in the Encyclopedia of Planning Law and
Practice, para P102.15. At first sight it has some attraction, but closer
analysis indicates the flaws in this construction. As Macpherson J said:
In reaching his decision [the Secretary
of State] would, in my judgment, be blinkered were he to be bound to ignore
fresh evidence … of anything which occurred at any time after the date of the
order supporting the conclusion that it is probable, or improbable, that
quarrying activities will be resumed.
As Mr Richard Drabble for the Secretary
of State said, since the decision of the MPA under para 3(2)(b) is predictive,
it can be confirmed or denied by subsequent events. He gave the following
illustration. It could be that the only market for stone from a quarry is for
road works in the area. At the time the MPA make their order there is no
evidence that any such roadworks are in prospect. Then in the interval before
the confirmation of the order, a contract is let for a new Severn Bridge with
its ancillary road works, for which stone from the quarry will be required. In
those circumstances the Secretary of State would be shutting his eyes to
reality if he were to hold that resumption of working at the quarry was
unlikely.
Since the relevant provisions are silent
on the point, I would not construe them so as to limit the evidence which the
Secretary of State is entitled to consider to matters as they existed at the
date of the order unless there were no other tenable construction. For the
reasons I have set out above, the wider construction is not only tenable but
may well be necessary to do justice in some cases.
There is, however, one matter which
concerns me. Our attention was drawn to Circular 2/87 entitled Awards of
Costs Incurred in Planning and Compulsory Purchase Order Proceedings issued
by the Department of the Environment and the Welsh Office. The following are
extracts from that circular:
Costs in respect of compulsory purchase
and analogous orders
General principles
30. There is a distinction between cases
where appellants take the initiative, such as in applying for planning
permission or undertaking development allegedly without planning permission,
and cases where objectors are defending their rights or interests which are the
subject of a compulsory purchase order. If a statutory objector to such an
order is successful an award of costs will be made unless there are exceptional
reasons for not doing so …
Analogous orders and proposals
33. The Secretary of State normally
awards costs to successful objectors to orders and proposals which he regards
as analogous to compulsory purchase orders. In general he will consider an
order or proposal to be analogous to a compulsory purchase order if its making
or confirmation takes away from the objector some right or interest in land for
which the statute gives him a right to compensation. Some examples of orders
and proposals which are considered to be analogous to compulsory purchase
orders are set out in the Appendix…
Appendix
ORDERS ANALOGOUS TO COMPULSORY
PURCHASE ORDERS
…
(v) Orders
under section 51A of the 1971 Act inserted by section 10 of the 1981 Act
prohibiting the resumption of winning or working of minerals
Mr Anthony Porten QC, for the council,
submitted that a construction of Schedule 9 which permits the Secretary of
State to take into account events after the date of the order, combined with
this policy as to costs, could act as so strong a disincentive to MPA’s to make
such orders that they will never do so. They would, to put it colloquially, ‘be
on a hiding to nothing’. That, however, is not a reason for giving Schedule 9 a
construction it will not properly bear; it may be a reason for questioning the
practice of the Secretary of State as to costs if it were to be applied without
proper regard to the circumstances in which he refused to confirm a prohibition
order.
3. Irrationality
Mr Porten addressed to us a careful
argument designed to establish: (a) that the Secretary of State had adopted the
wrong test in deciding what was ‘unlikely’; and (b) that he based his
conclusion on a material finding of fact (that quarrying would be the most
advantageous use of the land) where there was no evidence to support such a
finding. I intend no disrespect to Mr Porten if I say that I am unpersuaded by
his argument and can do no better than repeat the words of Macpherson J:
… only if the decision is improperly
reached, or is Wednesbury unreasonable, can the court act to quash the
Secretary of State’s decision.
I suppose that it can be said that the
material relied upon both by the inspector and by the Secretary of State was
not the weightiest of material. But I cannot accept that the decision, based as
it was upon the evidence of genuine interest in the minerals from third
parties, can be said to be one which no reasonable Secretary of State could
have reached. And in reaching his decision both upon the evidence available at
the date of the order (paras 7 and 8), and with the addition of the later evidence
(para 9) the Secretary of State applied the correct test and reached a
conclusion which was justified. He had to deal with future probability and the
likelihood of future resumption of mineral workings; and even in the absence of
express evidence of plans to resume or need for these minerals (both of which
matters he considered) the Secretary of State cannot be faulted in his
decision-making process or in the decision reached.
4. Adequacy of the reasons given
There is nothing in this point.
I would dismiss this appeal.
ROCH LJ: I, too, would dismiss this appeal for
the reasons Balcombe LJ has given.
SAVILLE LJ: I agree.
Appeal dismissed with costs. Leave to
appeal was refused.
