Condition in planning permission for oil refinery requiring works to be commenced by a specified date satisfied by soil stripping and by construction of an access road, albeit one in part at least of a temporary nature–Expenditure of £30,000-odd out of a contemplated contract cost of perhaps £15,000,000 not to be brushed aside as de minimis
This was a
claim by United Refineries Ltd against the Essex County Council for a
declaration that construction of an oil refinery at Canvey Island, Essex, had
been commenced by January 1 1969 in fulfilment of a condition imposed by the
Minister of Housing and Local Government in a letter of December 14 1965
allowing a planning appeal and granting permission for the development.
G Dobry QC, G
Lightman and R Carnwath (instructed by Linklaters & Paines) appeared for
the plaintiffs, and J Harman QC and Miss E Appleby (instructed by Sharpe,
Pritchard & Co) represented the defendants.
Giving
judgment, Fox J said that by an application dated July 29 1964 the plaintiffs
applied to Canvey Island District Council for permission under the Town and
Country Planning Act 1962 for the development of 262 acres of land on Canvey
Island. The purpose of the application was for ‘use of land for an oil
refinery, including railway and pipeline approaches.’ The plaintiffs appealed, and on December 14
1965 the Minister of Housing and Local Government issued a decision letter
allowing the appeal and granting permission for construction of the refinery,
including ancillary offices and the railway and pipeline approaches. The
permission was made subject to six conditions, of which two were presently
relevant. By condition (b), the siting, design and external appearance of the
buildings and the means of access were to be such ‘as may be agreed with the
local authority (account being taken of the need to keep land across the north
part of the appeal site free of buildings so as not to prejudice proposals for
the construction of a proposed new road between A13 and Canvey Road), or, in
default of agreement, as shall be determined by the minister.’ Condition (f) read: ‘The building and other
operations hereby permitted shall be commenced not later than January 1
1969.’ By an application of May 17 1966
the plaintiffs submitted to the district council a number of detailed proposals
in pursuance of condition (b), showing among other matters a connection between
the external refinery road and a proposed roundabout to be constructed at the
junction of the proposed Canvey approach road and classified road B1014. The
proposals were approved by the district council on October 4 1966 with certain
conditions, one of which was that access to the site was to be taken from the
roundabout, except that until the roundabout was constructed and made available
for use access might be obtained at another point shown on the plans.
After
discussion with officers of the Essex County Council, the plaintiffs’
contractors in March 1967 began construction of an access road and the
stripping of topsoil in preparation for the erection of buildings. About this
time, too, plans were submitted showing the siting of the buildings, their
design and external appearance. By August 1967 the access road had been
constructed along the line proposed to a length of 3,400 ft and to an average
width of 24 ft, the cost being £27,000. Furthermore, the topsoil had been
stripped from areas shown on the plans as the location of administrative
buildings, measuring in aggregate 5.8 acres, and this part of the work had cost
£3,200. The defendants, Essex County Council, now said, nevertheless, that none
of this work had to do in any substantial sense with the development of the
land; it was all entirely preliminary, and the ‘building and other operations .
. . permitted’ therefore could not be said to have been ‘commenced’ by January
1 1969. Alternatively the defendants said that what work had by then been
commenced was de minimis and that on its true construction the condition
in the letter of December 14 1965 required a start to be made on the main
building work and other substantial aspects of the proposed development. He
(his Lordship) rejected both these arguments. Work costing a total of
£30,000-odd might be only a small part of a project which on completion could
cost in the region of £15,000,000, but was by no means de minimis. As
for the argument that what had been done was merely preliminary, both the items
of work concerned were items for which permission had been given, and in his
(Fox J’s) judgment they could not be dismissed as preliminary only. The road
might have a temporary quality, but it was in accordance with plans that had
been approved, and the final development would occur when the roundabout was
completed. As for the stripping of the topsoil, that seemed to him to be a
building operation, work that would normally be done in erecting a building,
and it had been commenced by the specified date. The word ‘commence’ must be
taken in its ordinary meaning, and there was a distinction between starting
before a particular date and completing by such date; here, the only condition
attached was that development should commence before the date in question, and
development had so commenced. Accordingly there would be a declaration in the
terms sought.
The
plaintiffs were awarded costs.
