Town and Country Planning Act 1971 — Appeal by planning authority from decision of Forbes J holding that Secretary of State should have quashed an enforcement notice served by authority — Planning permission had been given to reopen a limestone quarry subject to a condition that permission would expire unless quarrying operations were begun before a certain date — Enforcement notice alleged a breach of this condition — Evidence that work on an access road to the quarry and some work on the quarry itself had been begun before the expiry date — Effect of Class VIII in Schedule 1 to the Town and Country Planning General Development Order 1977 — Held, upholding decision of Forbes J, that the respondent company was an industrial company carrying out an industrial purpose which required the provision of a private way — The road was on land which was part of the planning unit — The building of the road was incidental to getting the limestone — In the circumstances the 1977 order applied and there was no breach of planning control — Appeal dismissed.
This was an
appeal by Clwyd County Council against a decision of Forbes J in favour of the
respondent company, Welsh Aggregates Ltd, in judicial review proceedings. The
judge decided that an enforcement notice served on the company (with other
notices) should have been quashed by the Secretary of State. The notice related
to land at Pantasaph, near Holywell, Clwyd on which there had been a limestone
quarry.
The particular
notice concerned the carrying out of engineering operations consisting of the
removal of soil and overburden and the formation of an access for vehicular
traffic. The present appeal related to the construction of the access way.
Konrad
Schiemann QC and Jeremy Sullivan QC (instructed by Sharpe, Pritchard & Co,
agents for E R L1 Davies, director of legal and administrative services, Mold)
appeared on behalf of the appellant council; Bernard Marder QC and Brian Ash
(instructed by Clement Jones & Co, of Holywell) represented the respondent
company; Simon Brown (instructed by the Treasury Solicitor) represented the
Secretary of State for Wales.
Giving
judgment, WALLER LJ said: This is an appeal from a judgment of Forbes J
delivered on April 7 1982. It was a reserved judgment and followed a hearing
which lasted some five days. There were a number of difficult issues before the
learned judge and in his judgment he sets them out fully and clearly and it is
a tribute to the care that he has taken that the issues before us were
considerably narrowed.
It is
essential to go to some extent into the history of the matter in order to
understand the nature of the dispute before this court. The land in question is
at a place called Pantasaph in Clwyd. It is owned by the Sisters of Charity.
There is on the land what at one time, in the last century, was a limestone
quarry. In 1951 an application for planning permission to reopen the quarry was
made. This permission was granted subject to certain conditions. The permission
was not used for some time. It is common ground that it was due to expire on
April 1 1979 unless quarrying operations had been begun on the site before that
date. If that happened the lapse of the planning permission would adversely
affect the value of the land.
Application
was made in early 1979 for renewal of that planning permission; it was an
application to the Clwyd County Council. Clwyd refused that application on
March 20, that is to say, 10 days before the planning permission would expire.
By this time Welsh Aggregates Ltd, the respondent company in this appeal, had
become interested in operating the quarry on a commercial basis. They took a
lease of the land and at once took steps to carry out mining operations
thereon.
There was
local trouble. These operations were disrupted by demonstrators and much damage
and loss was caused both to machinery and to equipment. On April 10 and 21
Clwyd served three enforcement notices on the company together with the stop
notices. These effectively stopped any further work on the site. The company
appealed and the Secretary of State ordered a public local inquiry to be held.
By agreement between the parties this was confined to the legal aspect of the
matter; the merits of the planning approval were not to be canvassed. The inspector,
in other words, had to confine himself to deciding precisely what the company
had done and whether what they had done was in breach of planning control. The
three enforcement notices and stop notices which were under consideration were
labelled A, B and C. A related to the carrying out of engineering operations
consisting of ‘(a) the clearing and removal of soil and overburden from that
part of the said land . . . and (b) the formation of an access for the
vehicular traffic along the southern boundary of that part of the said land. .
. .’ The B notice related to the
carrying out of drilling operations and the C notice complained of a breach of
the conditions with regard to the fencing of the top of the quarry. We are
really only concerned in the present appeal with A and only part of it, namely,
the part dealing with the construction of the access way.
The inspector
reported on September 10 1979. The Secretary of State gave his decision on
January 15 1981. He quashed notice B, but so far as A and C were concerned he
wished to hear representations on the merits before coming to any final
conclusion.
Clwyd appealed
under section 246 of the 1971 Town and Country Planning Act against the
decision of the Secretary of State to quash the enforcement notice B and we are
not further concerned with that. That appeal was dismissed.
The company
moved the court for judicial review to compel the Secretary of State to quash
the enforcement notice A without holding any further inquiry. There was also a
writ issued by the company in the Chancery Division claiming declarations
against Clwyd because of the stop notices. That was set down in the Crown
Office List but we are not concerned with it now.
The conclusion
of the learned judge, Forbes J, with regard to the notice A with which we are
concerned, was that the clearing of the overburden from the quarry floor was
incidental to and a necessary premise to the working of the quarry face. That
was accepted by Clwyd’s own expert witness and by the inspector. In the light of
this the judge held that this operation was subsumed in the planning
permission, alternatively should be regarded as part of the operations referred
to in one of the conditions of the permission and accordingly included in the
permission and there is no appeal against that part of the judge’s decision.
Secondly he
came to the conclusion that construction of the roadway from the public road
access point to the quarry was not specifically covered by planning permission.
Nor could permission to construct a roadway be implied from the 1951
permission. However, the learned judge held that the use of the land in
question for the passage of lorries was an integral part of the permission and
was at least not in breach of planning control. In his view the planning
permission was considering the whole site although only part of it was to the
quarry.
Finally the
learned judge considered the Town and Country Planning General Development
Order 1977, which provides that certain activities will be lawful even though
they are not the subject of specific planning permission. He came to the
conclusion that the company was engaged in an industrial process and that the
construction of the access way was within the provisions of Class 8 of that
order and accordingly that there was no breach of planning control. I will
refer hereafter to the terms of the order.
The judge,
having found that work had started before April 1, said that in his judgment
the Secretary of State had no alternative but to quash the enforcement notice A
in its entirety and the judge allowed the appeal. Clwyd now appeal to this
court submitting that the judge was in error in his conclusions.
On the plan
attached to the application for planning permission the total land held by the
appellant is edged red and there are three areas occupying about half of the
whole lined purple, green and hatched red. The remainder has no marking. That
which is surrounded by purple is the old quarry. That which is surrounded by
green is that for which planning permission was in fact given to quarry. The
hatched part was that which was covered by an application for future
development for which planning permission was not granted. The access way was
from the access to the west across the white land to the actual quarry.
The judge found
that the planning application related to the whole site owned or leased by the
applicant. The appellants, Clwyd County Council, submit to us that he was
misled by the case of Burdle v Secretary of State for the Environment
[1972] 1 WLR 1207, but in my view the judge only used that as a help. The
judge said this:
It seems to
me when applying those guidelines that the ‘planning unit’ must be here at
least all such part of the area edged red (which is the ‘unit of ocupation’) as
is required for the purpose of the permitted operations together with any part
of that area whose use is ‘incidental to or ancillary to the achievement of
that purpose’. But this is not all. It seems clear to me from a reading of the
Conditions and Reasons that many references to ‘the site’, in particular those
in Reason 7, are references to the whole of the land edged red. This is because
the term ‘access’ in Reason 7 must have been used in its proper planning sense
as the point at which traffic from and to the site crosses the boundary between
the privately owned land and the public road.
Examination of
the planning application and the planning permission is helpful. The
application was for the Grange Quarry and when looking at the plan that could
only be the land edged red. Included in the application for planning permission
was an application for a new access; it was a brown line on the plan. There was
also a note to the refusal and it read thus: ‘The proposed access on to the
third-class road and coloured brown on the plan accompanied the application
form be refused.’ The note says this:
Ingress to
the site by means of the proposed access as shown on the plan would create
conditions which would be prejudicial to road safety being sited on a blind corner.
(b) The existing access leading to the site and to the west is considered more
suitable than the proposed as shown on the plan.
Although Mr
Schiemann submits that this note simply left it to the applicants to apply for
planning permission I do not accept this. When the planning authority wished
for a further application for planning permission they said so; eg para 5 of
the same note to the planning permission where it was said that there had to be
a submission for approval for any buildings or plant or structures to be
erected on the site. Thus in my opinion the fact that that was stated in that
way indicated that the planning authority were well aware of the access which
ran all the way from the existing old quarry to the new access point.
The judge’s
view that the planning unit must at least cover such part of the area edged red
as is required for the purpose of the permitted operation together with any
part of that area whose use is incidental to or ancillary to the achievement of
that purpose is one with which I agree. He was not deciding that the whole of
the area lined red was necessarily part of the planning unit but he was saying
that such parts as were incidental to or ancillary to the achievement of the
purpose of the operations in the quarry were part of the planning unit. That of
course would include the land immediately adjacent to the track from the old
access to the old quarry which was marked as A to B on the plan. In my opinion
the learned judge in that conclusion was right.
I now come to
the question of the 1977 General Development Order. Article 3 of that order
says this:
(1) Subject to the subsequent provisions of this
order, development of any class specified in Schedule 1 to this order is
permitted by this order and may be undertaken upon land to which this order
applies, without the permission of the local authority or of the Secretary of
State.
Article 3(2)
reads:
Nothing in
this article or in Schedule 1 to this order shall operate so as to permit any
development contrary to a condition imposed in any permission granted or deemed
to be granted under Part III of the Act otherwise than by this order.
That brings me
to Schedule 1 and to Class VIII, which is headed: ‘Development for Industrial
Purposes’, and reads, so far as is relevant:
1.
Development of the following descriptions carried out by an industrial
undertaker on land used . . . for the carrying out of any industrial process,
and for the purposes of such process, or on land used . . . as a dock, harbour
or quay for the purposes of an industrial undertaking:– (i) the provision,
rearrangement or replacement of private ways or private railways, sidings or
conveyors —
so the
provision of private ways would be allowed if it came within Class VIII.
Article 2
defines industrial undertakers as ‘undertakers by whom an industrial process is
carried on . . .’ and industrial process as ‘any process for or incidental to
any of the following purposes, namely: . . . (c) . . . the getting, dressing or
treatment of minerals, being a process carried on in the course of trade or
business . . .’. The industrial process in this case was that of the getting,
dressing or treatment of minerals.
The question
then has to be asked, was the respondent company an industrial undertaker on
land used for the carrying out of industrial processes and for the purposes of
such processes? Mr Schiemann made his
submission in three parts. He submitted that the order could not help because
the road was on land that was not part of the planning unit. I have already
indicated that I agree with the view of the learned judge that it was.
Secondly, that the words of the article are not sufficiently wide to cover this
case. The industrial process is the getting, dressing or treatment of minerals
and building a road cannot be said to be a process incidental to such a
purpose. I do not agree. In this case it would be quite impossible to work a
limestone quarry unless there were the means of disposing of the limestone.
Indeed in the planning application it was said that the means of removing the
limestone would be ‘road haulage’. In my opinion this would clearly be
incidental to the purpose of getting the limestone.
Mr Schiemann’s
final point was that the order does not apply when that which is said to be
covered by the order is the only industrial purpose. Applying that to the facts
of the present case he submitted that it is not possible to use the making of
the road for the purpose of transporting limestone as taking the case within
the order unless there was some getting, dressing or treatment of limestone to
which it was incidental. Therefore, in this case, since the road-making
started, he submitted, before the actual work of quarrying, such road-making
was not covered by the order and was in breach of the planning control.
It is
necessary to examine with some care the facts on this issue. The inspector
summarised the situation in these words (p 44, para 11):
On Thursday
March 29 1979 men and machines entered the site and began work on the widening
and improvement of the access track from Old Post Office Lane to the quarry
entrance and also began clearing the overburden from the quarry floor up to the
quarry face.
He does not
separate out the time in which the two different operations were taking place.
If one looks at the evidence of Mr Priestly, he said that authority was given
to enter the quarry on March 28 1979. He said that he inspected the access to
the quarry from Old Post Office Lane and that it was about 10 to 15 ft wide and
had a hardcore base and was covered in parts with soil and cattle marks. There
was a gateway at each end. When he visited on March 29 he saw machines at work
on the site and said that the access road
the hardcore base with quarry material. At that stage, saving the scraping off
of the soil, the work of recovery from the quarry had already been started.
Mr Wilcox gave
similar evidence and said that there was evidence of hardcore below the top
surface of the access track. That is what was already there. He said that
scalpings (limestone chippings) were spread on the access. They had come also
from the quarry.
In my opinion
the evidence does not show that road construction started before the quarrying
operations. The removal of overburden and the clearing of the quarry floor were
essentially quarrying operations. In dealing with notice B the minister
regarded the shot firing on the 30th as the crucial thing to show that mining
had been started, but one can understand that because what was going on before,
although clearly a quarrying operation in my opinion, might not have been of
sufficient gravity by itself to be decisive of what the minister had there to
decide. There may possibly have been some mud removed from the hardcore base an
hour or so before work was starting at the quarry. However, I do not regard
that as relevant. It is very doubtful whether such removal could be said to be
development; in any event it would be de minimis. However, there was no
finding by the inspector that work on the road started before work at the
quarry. It follows therefore, in my opinion, that at the time that work on the
access road was being done other work was going on in the quarry for the
purpose of getting limestone and the work on the access road. In my judgment,
that comes within the meaning of the article to which I have already referred.
The respondent company was an industrial undertaker; it was on land for the
purpose of carrying out an industrial purpose and for the purposes of such process
the provision of a private way was required. In my judgment, therefore, it was
covered by the General Development Order of 1977 and there was no breach of
planning control by the respondent company in making good that access road
marked on the plan on the line A to B.
In my judgment
there was no breach of planning control and I would dismiss this appeal and
affirm the order of the learned judge.
Agreeing,
DONALDSON LJ said: I, too, would dismiss this appeal and affirm the order of
the learned judge for the reasons that my Lord has given.
LORD LANE CJ:
I agree.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.