Town and country planning — Mining operations — Planning permission subject to conditions — Alleged breach — Enforcement and stop notices — Enforcement notices quashed or withdrawn — Prohibition in stop notices — Claim for compensation — Preliminary decision of Lands Tribunal — Stopping up or diverting of footpaths — Obtaining means of access — Whether mining operations could have lawfully continued — Whether preliminary decision correct in law — Appeal by way of case stated
Planning permission was granted in 1951, subject to conditions, to work a quarry, Grange Quarry, Pantasaph, Holywell, Clwyd. Under the provisions of the Town and Country Planning Act 1971, that planning permission purported to lapse in April 1979 and its renewal was refused. In March 1979 Welsh Aggregates Ltd, the respondents, were granted a 21-year mining lease of the quarry and mining operations were recommenced on March 28 1979. The appellant planning authority served enforcement notices in April 1979, and these were followed by stop notices prohibiting further mining. In July 1982 the Court of Appeal affirmed a decision that the original planning permission remained valid and that one of the enforcement notices be quashed; the others had been withdrawn.
The respondents claimed compensation under section 177 of the Town and Country Planning Act 1971 for the loss and damage attributable to the prohibitions in the stop notices; the claim was referred to the Lands Tribunal. The tribunal (August 12 1987) gave an interim decision on certain preliminary matters. It found (1) that mining operations would have continued despite the existence of two public footpaths; the respondents had no knowledge of these and if they had, they could have circumvented one of them.
Circumvention of the footpath might have resulted in a breach of one of the 1951 planning conditions, but that could not have been regarded as unlawful until the issue of an enforcement notice; (2) that the respondents would have succeeded in providing another access to the quarry within one year from April 1979; (3) that the respondents would have continued to use an existing access until a new access was provided. The local planning authority appealed those findings by way of a case stated.
Held 1. As the footpaths in issue existed in 1979, their destruction by mining operations would have been unlawful and could have been prevented. The circumvention of one of the footpaths, by carrying out mining operations on both sides of the path, would have been a breach of one of the 1951 planning conditions; it could have been stopped and would have been unlawful whether or not an enforcement notice was served: LTSS Print & Supply Services Ltd v Hackney London Borough Council [1976] QB 663 could not be distinguished. This ground of appeal succeeded.
2. The Lands Tribunal was entitled to find that a necessary alternative means of access would have been found within one year of April 1979.
3. There was no basis for believing that the existing access would not have been available until a new access was provided. These grounds of appeal failed. Quaere whether the question of unlawfulness was in any event relevant to the question of compensation.
Jeremy Sullivan QC and Nicholas Huskinson (instructed by the solicitor to Clwyd County Council) appeared for the appellant local planning authority; Robert Gray QC and Robin Campbell (instructed by the solicitor to Welsh Aggregates Ltd) appeared for the respondent company.