Quarries — Minerals — Mining permission — Conditions — Whether claimant entitled to reopen dormant quarries in accordance with original permission — Appeal dismissed
The appellant wished to reopen two quarries for the purpose of extracting sandstone. It claimed to be entitled to do so under the terms of conditions imposed by a 1952 planning permission that had been granted to its predecessor. The respondent mineral planning authority considered that they were entitled to impose new conditions on any future operations since the quarries were deemed to be dormant pursuant to the Environment Act 1995.
The Act introduced new arrangements for regulating the terms under which the extraction of minerals could take place. The review scheme required mineral planning authorities to prepare lists of the mineral sites in their area. The sites were to be designated as “active” if mineral development had been carried out between 22 February 1982 and 6 June 1995, or as “dormant” if no substantial development had taken place during that period, as was the case with the two quarries in question. The respondents duly compiled a list of the sites in their area.
The appellant applied for a declaration that it was entitled to work the quarries in accordance with the 1952 permission. It argued that the respondents’ 1996 list of mineral sites had incorrectly treated the two quarries as separate (dormant) sites. It contended that the 1952 permission had been granted in respect of six quarries, including the two in issue, which should all be treated as an active site. As such, the quarries could still be worked in accordance with the original conditions. The respondents submitted that the 1952 permission comprised four separate planning permissions within a single document, and that they had therefore been right to treat the two quarries as separate mineral sites and to designate them as dormant. The judge dismissed the claim: see [2004] EWHC 1475 (QB). The appellant appealed.
Held: The appeal was dismissed.
The proceedings failed as an abuse of process. Read together, the effect of paras 12(3) and (4) of Schedule 13 to the Act was that, regardless of whether the quarries were treated as a discrete, but dormant, site or as part of a larger composite site, the 1952 permission no longer authorised the carrying out of mineral development. It was not open to the court to make a declaration that purported to permit what parliament had clearly intended to forbid.
The appellant was attempting, in a private law action for declaratory relief, to challenge matters of public law that should properly have been raised, if at all, by an action for judicial review. The 1996 list was intended to be a definitive document upon which the owners of land forming any part of the sites specified within it and members of the public living in the area could rely in arranging their affairs: Earthline Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1599; [2002] 4 PLR 94 and Tarmac Heavy Building Materials UK Ltd v Secretary of State for the Environment, Transport and the Regions (1999) 79 P&CR 260 distinguished.
The court had the power to quash a decision that a group of quarries should be included in a list as a single site or as multiple sites, and to classify a site as dormant rather than active. However, if the scheme was to work as intended, those powers had to be invoked and exercised at an early opportunity. A challenge to the list had to be made before the dates, specified in the list, at which applications were to be made and conditions determined. A challenge by way of judicial review, if brought within the time prescribed by the Civil Procedure Rules, namely three months, would meet that requirement. A challenge in an ordinary civil action following an eight-year interval did not.
David Holgate QC and Tim Buley (instructed by Aaron and Partners, of Chester) appeared for the appellant; Timothy Corner QC and Andrew Fraser-Urquhart (instructed by Nabarro Nathanson, of Sheffield) appeared for the respondents.
Eileen O’Grady, barrister
