Earthline Ltd v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 29 January 2002 |
| Neutral Citation | [2002] EWHC 161 (Admin) |
| Docket Number | NO: CO/3475/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2002 |
[2002] EWHC 161 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
NO: CO/3475/01
MR DAVID HOLGATE QC and MR DAVID FORSDICK (instructed by Messrs Lester Aldridge, Alleyn House, Carlton Crescent, Southampton SO15 2EU) appeared on behalf of the Claimant
MR TIM MOULD (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant.
MR TIM STRAKER QC and MR ANDREW TABACHNIK (instructed by West Berkshire Council) appeared on behalf of the Second Defendant
This is a challenge under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to a decision of a Planning Inspector contained in a decision letter dated 24th July 2001 (“the decision letter”). The Inspector dismissed an appeal by the Claimant against the failure of the Second Defendant to determine an application by the Claimant for a variation of a condition attached to an Interim Development Order (“IDO”) permission dated 18th June 1946 by a notice of determination of conditions dated 12th January 1996.
BACKGROUND
On 18th June 1946 Newbury Rural District Council granted permission on an application under an IDO for gravel extraction at the appeal site at Hamstead Marshall, Berkshire (the 1946 permission). The Town and Country Planning Act 1947 came into force on the appointed day, 1st July 1948. By section 77 of the 1947 Act planning permission was deemed to have been granted under Part III of that Act for the same development and subject to the same conditions as in the 1946 permission. Subsequent consolidating Town and Country Planning Acts in 1962 and 1971 maintained that position.
The 1946 permission, in common with many other IDO permissions for mineral working, was subject to very few conditions. In 1976 the Stevens Committee's report “Planning Control over Mineral Working” was published. It recommended that a limit should be placed on the life of minerals permissions so that they could be reviewed by local planning authorities without liability to pay expensive compensation. Local planning authorities should also have power to review old minerals permissions with a view to imposing more stringent modern conditions, or prohibiting working altogether, by making revocation, modification or discontinuance orders. Compensation would be payable upon the making of such orders. The Committee was concerned to strike a balance between the need to impose a limit on the life of (hitherto unlimited) permissions, and the need to pay compensation if the imposition of such a limit would have adverse financial consequences for landowners or those entitled to mineral rights.
It concluded that a limit of 60 years could be imposed on the life of all mineral permissions without the need to pay any compensation. Its reason were as follows:
“(a) it should not in any case be necessary to allow a longer period than 60 years for the amortisation of capital investment, and in many cases a shorter period will be appropriate.
(b) sixty years is an appreciable period in terms of the changing attitudes and needs of society.
(c) normal valuation practice regards a reversion after 60 years as equivalent to being subject to a tenancy in perpetuity; the assessed present value of the right to extract minerals beyond 60 years will be negligible, and the limitation should therefore have no appreciable financial consequences at the time it is imposed.”
The Town and Country Planning (Minerals) Act 1981 (the 1981 Act) was enacted in response to the Stevens Committee's recommendations. Section 3 imposed a duty upon every mineral planning authority to review all mineral workings within its area and make revocation or modification orders, discontinuance orders, or orders prohibiting or suspending resumption of operations, as appropriate.
Section 7 inserted section 44A into the 1971 Act as from 22nd February 1982:
“44A. (1) Every planning permission for development consisting of the winning and working of minerals shall be subject to a condition as to the duration of the development.
(2) Except where a condition is specified under subsection (3) of this section the condition in the case of planning permission granted or deemed to be granted after the date of the commencement of section 7 of the Town and Country Planning (Minerals) Act 1981 is that the development must cease not later than the expiration of the period of sixty years beginning with the date of the permission.
(3) An authority granting planning permission after the date of the commencement of the said section 7 or directing after that date that planning permission shall be deemed to be granted may specify a longer or shorter period than sixty years, and if they do so, the condition is that the development must cease not later than the expiration of a period of the specified length beginning with the date of the permission
(4) A longer or shorter period than sixty years may be prescribed for the purposes of subsections (2) and (3) of this section.
(5) The condition in the case of planning permission granted or deemed to have been granted before the commencement of section 7 of the Town and Country Planning (Minerals) Act 1981 is that the development must cease not later than the expiration of the period of sixty years beginning with the date of the commencement of that section.”
Subsection 44A(5) applied to the 1946 permission, and thereby imposed a condition that gravel extraction at the appeal site must cease not later than 22nd February 2042. This position was preserved when the Town and Country Planning legislation was next consolidated in 1990: see paragraph 90 of Schedule 24 to the 1971 Act and paragraph 3 of Schedule 3 to the Planning (Consequential Provisions) Act 1990. Section 72(5) of the 1990 Act provided that:
“Part 1 of Schedule 5 shall have effect for the purpose of making special provision with respect to the conditions which may be imposed on the grant of planning permission for development consisting of the winning and working of minerals….”
Schedule 5 is headed “Conditions Relating To Mineral Working” and Part 1 of the schedule deals with conditions imposed on grant of permission. Paragraph 1 deals with duration of development:
“1.1 Every planning permission for development
(a) consisting of the winning and working of minerals…
shall be subject to a condition as to the duration of the development.
(2) Except where a condition is specified under sub-paragraph (3) the condition in the case of planning permission granted or deemed to be granted after February 22, 1982 is that the winning and working of minerals … must cease not later than the expiration of the period of 60 years beginning with the date of the permission. (3) An authority granting planning permission after that date or directing after that date that planning permission shall be deemed to be granted may specify a longer or shorter period than 60 years, and if they do so, the condition is that the winning and working of minerals … must cease not later than the expiration of a period of the specified length beginning with the date of the permission…
(5) The condition in the case of planning permission granted or deemed to have been granted before February 22, 1982 is that the winning and working of minerals … must cease not later than the expiration of the period of 60 years beginning with that date.”
Paragraph 4 of Annex C to Mineral Planning Guidance Note 2 (MPG 2) advised that:
“Part 1 of Schedule 5 to the 1990 Act requires all planning permissions for mineral working to be subject to a time limit condition, requiring development to cease not later than the expiration of 60 years or such longer or shorter period as the MPA [Mineral Planning Authority] may specify. The period should be appropriate to the particular circumstances of the case and should take account of the legitimate needs of the operator as well as planning considerations. Permissions existing on February 22, 1982, which are not already time-limited, become time-expired on February 22, 2042. Where a permission for mineral working becomes time expired and workable deposits remain an application for its renewal should be considered in the normal way but it is to be expected that such an application would normally be granted unless there has been a material change of planning circumstances since the expiring permission was granted. Because of the long time scale of some mineral operations careful consideration should be given to the nature and long term relevance of the conditions to be attached.”
Notwithstanding the additional controls introduced by 1981 Act, IDO permissions, such as the 1946 permission, continued to be a source of concern. Paragraph 6 of MPG 8, which explains the provisions of the Planning and Compensation Act 1991 dealing with IDO permissions, is as follows:
“There are essentially four separate problems associated with permissions granted under IDOs:
—Unlike post 1947 Act permissions, there was no requirement to register them, so records are sparse and such as there may be imprecise. This means that planning authorities (and other interested parties e.g. house purchasers) do not know where some permissions exist and where they do know, the details they hold may differ from those held by the person or persons with the benefit of the permission.
—Because they are not registered, long dormant workings can be reactivated without warning.
—Existing workings may be subject to few, if any conditions, governing the operation of the quarry or its...
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