Owner claiming registration of old mining permission with unchanged conditions because fresh conditions imposed by council had been determined too late – Owner seeking judicial review nearly three years after determination – Whether good reason shown for extending time-limit prescribed by RSC Ord 53
The owners of a stone quarry near Bath had the benefit of an “old mining permission”, as defined in section 22 of the Planning and Compensation Act 1991, which they had caused to be registered under that section on January 13 1993. On November 22 1993 the owners applied to the respondent council under para 2 of Schedule 2 to the 1991 Act, for the determination by the council of the conditions to be attached to the permission. At that time the owners were unaware that, by para 2(6) (the deeming provision), if no notice of determination was given within three months of the application, or within such extended period as may be agreed in writing, the permission would be treated as being subject to the conditions set out in their application.
Over the following 12 months various periods of postponement were agreed. On March 1 1995 the council’s environment committee determined a set of conditions different to those set out in the application. On March 8 1995 these were notified to the owners, who found them unfavourable. Having taken certain steps towards lodging an appeal, the owners learned of the deeming provision and entered into long correspondence on whether or not written agreements on postponement had been in force at all material times. On January 12 1998 the owners’ solicitors warned the council in writing that they would apply for judicial review unless the conditions annexed to the 1993 application were registered within 14 days. On January 26 1998 the owners filed a motion claiming, inter alia, an order that the council effect the required registration.
On February 24 1998 leave for judicial review was granted on paper, whereupon the council applied to set aside the leave so granted on the ground that the proceedings had been commenced outside the three-month time-limit prescribed by RSC Ord 53 r 4, and that there was no good reason for extending that period.
Held The grant of leave should stand.
1. The owners could not contend that, because the duty to register was a continuing one, the ground for their application first arose when the council failed to act upon the 1998 ultimatum. The case of London & Clydeside Estates v Aberdeen District Council [1980] 1 EGLR 11 was disinguishable because the substantive act or decision at the base of the present complaint occurred at the very latest on notification of the adverse determination in 1995: see R v Department of Transport, ex parte Presvac Engineering Ltd (1992) 4 AdminLR 121; R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd, unreported October 14 1997.
2. However, despite the lengthy delay, there was good reason for extending the three-month period. In the likely event of the council seeking to enforce the 1995 conditions by the issue of an enforcement notice, the owners would be entitled to appeal to the Secretary of State under section 174 of the Town and Country Planning Act 1990 and, in doing so, would inevitably raise the very same issue as presently before the court, namely whether the deeming provision had in fact come into operation before the purported determination. The refusal of leave would accordingly run counter to the underlying policy of the 1991 Act, which was to establish the status and scope of old mining permissions at the earliest opportunity.
Christopher Katkowski (instructed by Burges Salmon, of Bristol) appeared for the applicant; Nigel Giffin (instructed by the solicitor to Somerset County Council) appeared for the respondents.
