Town and Country Planning Act 1971–Condition attached to permission to tip waste materials–Materials to be approved before tipping–Whether condition void–Tipping a ‘material change of use’–‘Reserved matters’ unusual in permissions for change of use–Condition nevertheless valid–Appeal from Secretary of State’s decision upholding enforcement notice dismissed
This was an
appeal by R A Roberts and H T Roberts, partners in a quarry firm who worked
Manley Quarry, Cheshire, from a decision by the second respondent, the
Secretary of State for the Environment, upholding an enforcement notice served
by the first respondents, the Vale Royal District Council, requiring the
appellants to remove materials which, it was alleged, had been tipped in
contravention of a condition attached to a grant of planning permission.
Alistair
Dawson QC and R J Furber (instructed by Thompson, Quarrell & Megaw, agents
for Oliver & Co, of Ellesmere Port, Cheshire) appeared for the appellants;
H K Woolf (instructed by the Treasury Solicitor) represented the second
respondent; the first respondents took no part in the proceedings.
Giving
judgment, LORD WIDGERY said: This is an appeal under section 246 of the Town
and Country Planning Act 1971 by Robert Alfred Roberts and Harold Thomas
Roberts against an enforcement notice under the Act served by the
partners in a firm controlling a quarry known as Manley Quarry at Manley in
Cheshire.
Permission
under the planning Acts for the tipping of refuse into this quarry was given by
a permission, dated March 2 1960. The permission extends to the proposed
tipping of industrial and builders’ waste material at Manley Quarry and grants
permission subject to conditions, the second condition being: ‘The materials to
be tipped in this area shall be approved by the local planning authority before
tipping commences.’ As required by law,
the council give their reason for imposing the condition, and they put it in
these terms: ‘To prevent nuisance arising from the tipping operations.’ All seems to have gone on happily under that
permission for a number of years, but the matter has now become the subject of
challenge because the enforcement notice alleges that materials have been
tipped into the quarry which are of a kind other than those approved by the
local planning authority. On September 10 1974 we get the enforcement notice
which gives particulars of the condition not complied with, and goes on to
specify the acts required to restore the position as it was prior to the
unauthorised development taking place.
It is a
peculiarity of modern town planning legislation that, although the deposit of
refuse or waste materials on land can be development with all the important
consequences that flow from the Town and Country Planning Act 1971, the nature
of the development which is created by the deposit of refuse or waste materials
is not described as an operation, be it an engineering operation or a waste
disposal operation or whatever. Instead it is described in section 22(3) of the
Act as a material change of use. Thus one has the conception that if waste
material is to be tipped, permission from the planning authority is required on
the footing that the land affected will be subject to a material change of use.
There cannot
be many instances in which a material change of use gives rise to what in
planning jargon are called ‘reserved matters,’ in other words gives rise to
decisions which have to be postponed and given at a future time. By contrast,
the type of development which comes under the description of building
development and engineering operations quite frequently leaves for the future
certain of the detailed decisions which are involved in that planning
application. If one wants particular examples of that, there is section 42
which deals with outline applications and section 24(5) which deals with
conditions affecting the exterior of buildings. These and many other provisions
are examples of the Act accepting that part of the decision giving permission
to planning development must and should be postponed and dealt with after the
main outlines have been settled.
Mr Dawson,
appearing for the appellants today, has drawn our attention to the fact that,
although for other types of development, namely, the operations type, there are
these provisions whereby matters can be reserved and dealt with later, there
are no such provisions in regard to development springing from a material
change of use. It may be, as I have already said, that the explanation of that
is that development consisting in a material change of use does not attract
this kind of reserved decision. But it is the case that so far as that type of
development is concerned no provision has been made for the detailed
administration of a reserved matter. One finds, as Mr Dawson says, that, if
having been given a planning permission with reserved matters, you want to put
in an application to have permission granted for the reserved matter, or if you
want to have a decision by a particular time, or if you want to appeal against
the failure of the local authority to give you an answer on a reserved matter,
you may well find you will be in difficulty because of the absence of these
provisions. From that he asks us to infer that, as a matter of construction of
the Act, it cannot have been intended that a condition of this kind with
reserved matters should apply to change of use developments. Accordingly he
asks us to say that this condition was void because it was postponing the final
decision until a date when the materials were tipped, and he says that if he
can persuade us that the permission is void, that means that the enforcement
notice is bad. If we get to that point, of course we must send the case back to
the Secretary of State to think again.
For my part I
do not draw the fundamental conclusion which is basic to Mr Dawson’s argument.
I do not infer as a matter of construction of the Act or otherwise that change
of use developments are all that different from operation developments.
Certainly I do not find any ground for saying that the condition was void on
the basis relied upon in argument. If that condition is not void, the rest of
Mr Dawson’s argument tumbles to the ground. I would dismiss this appeal.
MICHAEL DAVIES
and GOFF JJ agreed and the appeal was dismissed with costs. Leave to appeal to
the Court of Appeal was refused.
