Quarry site–Former council refuse tip–Secretary of State entitled to find use for that purpose abandoned despite unchallenged evidence as to sporadic depositing in intervening period–Further filling correctly held to constitute development
This was an
appeal by Mr Leslie Ratcliffe, of Dunsters Farm, Bury, Lancashire, from a
decision of the first respondent, the Secretary of State for the Environment,
dismissing his appeal from a decision of the second respondents, Radcliffe
Borough Council, determining that the filling of Delph Lane Quarry, Ainsworth,
Lancashire, to the level of the contours of the occupying land would constitute
development of the land requiring planning permission.
Mr D G Nowell
(instructed by Temperley, Taylor & Wilkinson, of Middleton) appeared for
the appellant, and Mr H K Woolf (instructed by the Treasury Solicitor)
represented the respondents.
Giving the
first judgment, Bridge J said that the land was a quarry site of three and
three-quarter acres acquired by the appellant in 1970. He wanted to fill in the
quarry and reclaim the land for agricultural purposes. He asked the local
planning authority whether his proposal would mean that he needed planning
permission. Section 53 of the Town and Country Planning Act 1971 was
tailor-made for the determination of that kind of question. The local planning
authority decided the question in the affirmative, and the appellant appealed
to the Secretary of State, whose decision affirmed the local authority’s
decision. The facts were that from 1920 until 1961 the quarry was used by the
local authority for tipping household and other refuse. By reason of section 22
(3) (b) of the Act of 1971, a material change of use would be involved if the
area of land or its level was
follow, that if refuse or waste materials were deposited in a locality such as
a former quarry which had already been used for tipping, so long as the tipping
material did not extend above the level of the land or cover more than the area
of the quarry, then no material change of use of the land would be involved. On
the basis of that proposition, the appellant’s case was argued at a public
inquiry. It was found as a fact by the Secretary of State that, contrary to the
contention of the local planning authority, the authority’s use of the site up
to 1961 had extended over the whole area of the floor of the quarry. The
appellant argued that the established use accruing from the use under the old
Act of 1947 survived to the date of his proposed activities and so involved no
material change of use. On that basis it would not involve development of the
land. The Secretary of State rejected that argument on two grounds. The first
was that, on the evidence, contrary to the inspector’s findings, the tipping
use had been abandoned in 1961, so that the resumption by the appellant would
in any event involve a material change of use. Secondly, the Secretary of State
concluded on the evidence before him that the particular mode of tipping waste
materials, under the circumstances in which the appellant proposed to do it,
would amount to an engineering operation and would therefore constitute
development.
The law on the
subject of abandonment of user in the planning context had been developing over
the years since the legislation first went into the statute book. The early
decision relied upon by the appellant was a case heard in 1958 in the
Divisional Court, Fysons v Buckinghamshire County Council [1958]
1 WLR 634. A great deal of water had flowed under the bridge since that
decision however. The latest case in the Court of Appeal which pronounced upon
the subject was Hartley v Minister of Housing and Local Government
[1970] 1 QB 413. There one found the clearest explanation of the principles to
be applied to resolve any question whether a use of land had been abandoned for
planning purposes. It was clear from that case that once a use had been
abandoned, it could not be resumed without planning permission. Cessation of
use followed by non-use might be merely temporary or might amount to
abandonment. Abandonment depended on the circumstances. If land remained unused
in such circumstances that a reasonable man might conclude that the previous
use had been abandoned, then a tribunal should conclude that it had been
abandoned.
In the present
case, the local authority when they were tipping domestic rubbish into the
quarry had done so under a tenancy from the landowner. This ended in 1961 when
they stopped tipping. At some date in the mid-sixties some lorry-loads of clay
and earth were deposited in the quarry. This was associated with the activities
of a Mr Reddyhough, who proposed to use the land for chicken farming. The
appellant acquired the site in 1970. Before that the evidence showed there had
been some sporadic depositing of waste materials by persons who certainly had
no licence or rights, by trespassers, in fact. The Secretary of State, in
saying that the use for depositing waste materials had been abandoned in 1961,
stated that the ‘lawful use’ was abandoned in 1961. The appellant said the
Secretary of State misdirected himself by using the words ‘lawful use’ in
connection with the abandonment in 1961, and that the use of the words simply
recognised that prior to 1961 the tipping was lawful. He (his Lordship) had no
hesitation in saying that the Secretary of State was entitled to find on the
factual history that the appellant did need planning permission. He was
perfectly entitled to disregard, as having no significance to the real issue of
abandonment, both the small quantity of tipping associated with Mr Reddyhough
and the sporadic tipping by trespassers. He (Bridge J) would go further, and
say that there was evidence upon which the Secretary of State could conclude
that there had been abandonment in 1961. Indeed, he did not see how the
Secretary of State could have reached any other conclusion. The disputed
decision should therefore be confirmed. There was no error in law in the Secretary
of State’s conclusions that the previous tipping use had been abandoned, that
the appellant’s proposal would amount to a material change of use, and that it
was therefore a development which required planning permission. This meant that
it was unnecessary for the court to rule on the more difficult conclusion that
the appellant’s operations amounted to an engineering operation.
LORD WIDGERY
and STOCKER J agreed, and the appeal was accordingly dismissed.
