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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Payne v Caerphilly County Borough Council [2003] EWCA Civ 71 (16 January 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/71.html Cite as: [2003] EWCA Civ 71 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE SULLIVAN)
Strand London, WC2 | ||
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
____________________
CLIVE PAYNE | Claimant/Respondent | |
-v- | ||
CAERPHILLY COUNTY BOROUGH COUNCIL | Defendant/Appellant |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR I CLARKE (instructed by Messrs Kenneth Beavis & Co) appeared on behalf of the Defendants
____________________
(APPROVED BY THE COURT)
Crown Copyright ©
Thursday, 16 January 2003
"1. The mineral site to which this application
relates is the land at Nelson Road,
Senghenydd, Caerphilly formerly the tipping
ground of the Universal and Windsor
Collieries, more particularly delineated on
the map or plan enclosed and attached to this
application and edged in red on that map or
plan.
2. The APPLICANT is the owner of the land described above and delineated on the map or plan attached to this application.
3. The "RELEVANT PLANNING PERMISSIONS" relating to the site are as follows -
(a) The permission granted by the Caerphilly Urban District Council to the National Coal Board on the 30th day of MARCH 1955 [Code Number 1722]; and
(b) The permission granted by the Caerphilly Urban District Council to Mr Cyril James Ludlow on the 10th day of August 1961 [Code Number 4240]
4. THE CONDITIONS TO WHICH THE APPLICANT PROPOSES THE PERMISSIONS REFERRED TO SHOULD BE SUBJECT.
PERMISSION (a)
Conditions.
1. Any buildings or works authorised by this permission shall be removed, and any use of the land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2024.
2. The materials to be disposed of on the site shall include colliery rubbish, brick, stone, concrete and builders rubble.
3. Any of the materials on the site may be processed by machinery or otherwise within the confines of the site and exported from the site after processing.
4. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to in this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit.
PERMISSION (b)
Conditions
1. Any buildings or works authorised by this permission shall be removed, and any use of land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2042.
2. The materials or minerals to be removed from the site may be processed by machinery or otherwise within the confines of the site.
3. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit."
A plan was attached to the application which identified the land that was subject to the application. I shall refer to this land as "the application site".
"Section 96 and Schedule 13 para 1 and 2 of the [Environment Act 1995] define a mineral site as being composed of relevant planning permissions ie extant permissions for mineral development. Permissions which were subject to a time limit on the duration of development were specifically excluded from the definition of a relevant permission if the time limit on duration had expired. Therefore the "Ludlow" permission was not included on the First List and has now ceased to have effect (Schedule 13 para 6). Since no appeal was made to include the site on the list within the specified time the County Borough Council now have no authority to include the site even if it was disposed to do so. (R v North Linconshire Council, ex p Horticultural and Garden Products Sales (Humberside) Ltd 1997).
The permission for colliery waste tipping on the site was not subject to any such time limit on duration and was, therefore, included on the First List as a dormant site. An application may be made to determine new conditions for that permission (Schedule 13, para 9) prior to any commencement of works on site. However the permission and new conditions would not authorise removal of spoil only renewed tipping of colliery waste.
I am, therefore, returning your application for determination of conditions."
The statutory framework
"5. Section 96 of, and schedule 13, to the 1995 Act make provision for the review of old mineral permissions. Section 96(6) defines "minerals development" as:
'development consisting of the winning and working of minerals, or involving the depositing of mineral waste.'
6. For the purposes of schedule 13 a 'mineral site' includes land to which a 'relevant planning permission relates' (see paragraphs 1(1) and 1(2)(b). A relevant planning permission:
'means any planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30th June 1948 for minerals development...'
8. The schedule divides mineral sites into active Phase I sites, active Phase II sites and dormant sites. Paragraph 9 of schedule 13 (so far as material) provides as follows:
'9(1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active Phase I or II site, apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject.
(2) An application under this paragraph shall be in writing and shall -
(a) identify the mineral site to which the application relates;
(b) specify the land or minerals comprised in the site of which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest;
(c) identify any relevant planning permissions relating to the items;
(e) set out the conditions to which the applicant proposes the permissions referred to in paragraph (c) above should be subject.
(6) Where the mineral planning authority receive an application under this paragraph in relation to a dormant site or an active Phase I or II site they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subjected.
(7) The conditions imposed by virtue of a determination under sub-paragraph (6) above -
(a) may include any conditions which may be imposed minerals on a grant of planning permission for minerals development;
(b) may be in addition to, or in substitution for, any existing conditions to which the permission in question is subject.
...
(9) Subject to sub-paragraph (10) below, where, within the period of three months from the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any relevant planning permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions.
(10) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month from having received the application give notice to the applicant -
(a) stating that they are of such opinion; and
(b) specifying the further details which they require,
and where the authority so serve such a notice the period of three months referred to in sub-paragraph (9) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice."
Mr Payne's application for judicial review
Summary of the judge's conclusions on the issues
The Council's appeal in relation to the 1955 permission
"... there may be extreme cases where what is proposed by way of condition by an applicant is so plainly outside the ambit of Schedule 13 as to invalidate an application, for example, a suggested condition on a planning permission for mineral working that the erection of six houses be permitted, wholly changing the character of the minerals position. But that is very far from this case."
At paragraph 36 he continued:
"As the claimant pointed out, the 1955 planning permission enabled the deposit of colliery rubbish. That would have included, in addition to mineral waste, such items as bricks, rubble, stone, concrete etc. Then the claim says that his proposed condition 2 did little more than describe, somewhat more accurately, that which had already been tipped upon the site. Whether or not that is so, it is difficult to see that depositing brick, stone, concrete and builder's rubble would, absent any condition limiting the materials that could be deposited, amount to a material change of use from the deposit of colliery rubbish. The proposed condition is not so far outside the scope of the 1955 permission as to invalidate the entire application. The Council's remedy, if it felt that the condition was inappropriately wide, was perfectly simple: it could have imposed its own condition limiting the kind of material to be tipped within the definition of colliery rubbish. For whatever reason it chose not to do so."
"2. In these regulations ... 'ROMP application' means an application to a relevant mineral planning authority to determine the conditions to which a planning permission is to be subject under paragraph -
...
(b) 9(1) of Schedule 13 to the 1995 Act (review of old mineral planning permissions)...
'Schedule 2 development' means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where -
(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development.
26A(1) These Regulations shall apply to -
(a) a ROMP application as they apply to an application for planning permission;
(22) Where it falls to -
(a) a mineral planning authority to determine a Schedule 1 or a Schedule 2 application, ... paragraph 9(9) of Schedule 13 to the 1995 Act ... shall not have effect to treat the authority as having determined the conditions to which any relevant planning permission is to be subject unless either the mineral planning authority has adopted a screening opinion or the Secretary of State has made a screening direction to the effect that the ROMP development in question is not EIA development."
"DESCRIPTIONS OF DEVELOPMENT AND APPLICABLE THRESHOLDS AND CRITERIA FOR THE PURPOSES OF THE DEFINITION OF 'SCHEDULE 2 DEVELOPMENT.'"
Beneath these words appear:
"2. The table below sets out the descriptions of development and applicable thresholds and criteria for the purpose of classifying development as Schedule 2 development."
Beneath these words the table itself is set out. It is divided into two columns. Column 1 is headed "Description of development". Column 2 is headed "Applicable thresholds and criteria". Then immediately below those column headings appear the words:
"The carrying out of development to provide any of the following -"
The entries on which Mr Jarman relies are: "2. Extractive industry"; under column 1 appear the words "(b) Underground mining", and column 2:
"All development except the construction of buildings or other ancillary structures where the new floorspace does not exceed 1,000 square metres."
He also relies on item 11, which is headed "Other projects"; under column 1 appear the words:
"(b) Installations for the disposal of waste (unless included in Schedule 1)"
and under column 2:
"(i) The disposal by incineration; or.
(ii) the area of the development exceeds 0.5 hectare; or
(iii) the installation is to be sited within 100 metres of any controlled waters."
"(d) Sludge-deposition sites;
(e) Storage of scrap iron, including scrap vehicles."
Mr Payne's application for permission to appeal in relation to the 1961 permission
"The statutory code is silent on the point raised by the claimant in respect of the 1961 planning permission, but in seeking to give effect to the intention of Parliament, as evinced by the statutory code considered as a whole, the application of ordinary common sense leads inevitably to the conclusion that Parliament did not intend that paragraph 9(1) should apply to minerals planning permissions that were no longer extant, whether because development had not commenced within a time limit, or because they were subject to a time limit for completion which had expired. The purpose of paragraph 9 is to enable applicants to invite mineral planning authorities to determine the conditions which should be attached to relevant planning permissions so as to reflect modern environmental concerns. There would be no purpose in determining what conditions should be attached to a minerals planning permission that was no longer extant at the time of the application. I acknowledge that MPG 14 has no statutory force, but the advice in paragraph 12 (see above) is, in my view, well-founded. It accords with the views expressed by Keene J, as he then was, in the Oldham case. Those views are not binding upon me, but I find them highly persuasive. It would indeed be 'absurd to require the MPA to determine conditions for a lapsed permission."
"1(1) Every planning permission for development
(a) consisting of the winning and working of minerals; or
(b) involving the depositing of mineral waste,
shall be subject to a condition as to the duration of the development.
...
(5) The condition in the case of planning permission granted or deemed to have been granted before 22nd February 1982 is that the winning and working of minerals or the depositing of mineral waste must cease not later than the expiration of the period of 60 years beginning with that date."
"It is plain that the underlying statutory purpose was to impose an overall time limit on mineral permissions, a time limit that was sufficiently lengthy so as not to require the payment of any compensation to those who had an interest in planning permission which were hitherto unlimited in time. By 1982, when the 1981 Act came into force, the 1961 planning permission had ceased to have effect so as to permit the removal of the tip for over 10 years. It was most certainly not the purpose of the 1981 Act to 'revive' such 'dead' planning permissions and to extend them for a period of 60 years. Section 44A(5) (now to be found in paragraph 1(5) of Schedule 5 to the 1990 Act), subject to later amendments dealing with the depositing of mineral waste) applied to planning permissions for development which were still extant at the time when the 1981 Act came into force, not to those permissions which had ceased to permit minerals development by virtue of time limits, whether relating to commencement or completion, on the date when the Act came into force."