Lafarge Redland Aggregates Ltd v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 09 January 2004 |
| Date | 09 January 2004 |
| Docket Number | No 42 |
| Court | Court of Session (Inner House - First Division) |
First Division
Lord President (Cullen), Lord Marnoch, Lord Weir
Town and country planning - Listing of old planning permissions for minerals developments - Whether planning authority erred in law in omitting part of site from list - Town and Country Planning (Scotland) Act 1997 (cap 8), sched 9
Words and phrases - 'The land to which a relevant planning permission relates' - Town and Country Planning (Scotland) Act 1997 (cap 8), sched 9
Schedule 9 to the Town and Country Planning (Scotland) Act 1997 requires planning authorities to prepare and advertise a list of sites in their area for which planning permission for minerals development was granted between 1948 and 1982. The owner of a site which appears on the list may apply to the planning authority for determination of the conditions to which the relevant planning permission is to be subject, and where no such application is made, the relevant planning permission ceases to have effect. Where a site is not included in the list, the owner may apply for it to be added. Section 66(1) of the Town and Country Planning (Scotland) Act 1969 provided that every planning permission granted before the commencement of that section was deemed to have been granted subject to a condition that the development must be begun not later than 8 December 1979.
In March 1965 a company applied to the planning authority for permission to develop minerals at Rodel, Isle of Harris. A site plan submitted with the application showed an area of about 600 hectares, but there was no specification of location, nature or extent of any extraction of minerals. The application stated that further investigations were required to determine at which precise point the operations should start. Various details of the operations were said to be 'not yet known'. The planning authority granted permission in principle, subject to the conditions that before any work began full details of the proposed operation be submitted for their approval, and that rehabilitation of the ground be undertaken after any investigations. The details required were 'eg mode and direction of working, the precise location of the working face, plant, buildings etc, the arrangements for prevention of contamination of water sources, the proposed road accesses, measures for the preservation of amenity such as rehabilitation of the ground.' In June 1965 the company submitted a map 'of our proposed workings' showing an 'area of immediate development' on two parts of the 600 hectares and an 'area for possible future development' on a further part. The planning authority approved the proposed workings, and quarrying took place from 1965 to 1968. In 1997 the appellants applied to the planning authority for their interests in the 600 hectares to be included in the statutory list. The application was refused on the ground that planning permission had never been granted, because the matters reserved by the original 'outline permission' had not been submitted or approved. The appellants appealed to the Secretary of State for Scotland, and a public local inquiry was held. The reporters concluded that full planning permission had only been granted in relation to the three areas shown on the map submitted in June 1965, and the first respondents decided accordingly. The appellants appealed to the Court of Session. They argued that planning permission had been granted in respect of the whole 600 hectares, although the approval of further details remained in the discretion of the planning authority, and that since development had begun before 8 December 1979, the whole site should be entered on the list. The first respondents argued that planning permission had been granted subject to a suspensive condition, which had only been purified in respect of the three areas shown on the map. Only those areas were 'land to which a relevant planning permission relates', as required by sched 9. The third respondents argued that the planning permission granted in March 1965 had only been granted in principle, and did not permit any defined minerals development. The permission granted in June 1965 crystallised the three areas within which development was permitted, and only they should be entered on the list.
Held that: (1) 'the land to which a relevant planning permission relates' means the land in respect of which specific development has been authorised, and the only land which satisfied that description was the three areas shown on the map submitted in June 1965 (paras 51, 56, 70); (2) planning permission in principle had been validly granted in March 1965 in relation to the whole 600 hectare site, so that the planning authority would not thereafter be entitled to refuse approval of a specific development as a matter of principle (para 44); (3) authority was granted in June 1965 for minerals development solely within the three areas shown on the map, and that crystallised the scope of what was permitted, and did not leave it open to the developers to make successive applications (paras 45, 48); (4) in any event, any further application would be separate from the application made in June 1965, and development would have had to be begun before 8 December 1979 (para49); and appeal refused.
Opinion (per Lord Marnoch) that, had it been necessary so to hold, a 'relevant planning permission' for the purposes of sched 9 of the 1997 Act meant full and final planning permission independent of any further approval of the planning authority (para 56).
LAFARGE AGGREGATES LTD, Roneval Quarries Ltd and Rodel Crofting Lands Ltd appealed against a decision of the Scottish Ministers to include only parts of a site at Rodel, Isle of Harris, on the statutory list of sites for which planning permission for minerals development was granted between 1948 and 1982. The Scottish Ministers, the planning authority (Comhairle nan Eilean Siar) and Scottish Natural Heritage were called as respondents.
The full facts and averments of the parties are sufficiently set forth in the opinions of their Lordships.
Cases referred to:
Inverclyde District Council v Secretary of State for ScotlandSC 1980 SC 363
Lafarge Redland Aggregates Ltd v Scottish MinistersSC 2001 SC 298
Oakimber v Elmbridge Borough Council and Surrey County Council (1991) 62 P & CR 594
R v North Lincolnshire Council, ex p Horticultural and Garden Sales (Humberside) Ltd (1997) P & CR 363
R v Oldham Metropolitan Borough Council and another, ex p Foster [2000] Env LR 395
R v Secretary of State for the Environment, ex p Bilton Industrial Properties Ltd (1975) 21 P & CR 154
Russell (Alexander) Ltd v Secretary of State for Scotland 1984 SLT 81
Whitley & Sons v Secretary of State for the Environment and Clywdd County Council (1992) 64 P & CR 296
The cause called before the First Division, comprising the Lord President (Cullen), Lord Marnoch and Lord Weir for a hearing on the summar roll, on 25, 26, 27 and 28 November and 2, 3, 4 and 5 December 2003.
At advising on 9 January 2004 -
LORD PRESIDENT (CULLEN ) -[1] This is an appeal against a decision of the Scottish Ministers that certain areas should be included as a dormant phase I site in the list of minerals kept by the second respondents in terms of para 3 of sched 9 to the Town and Country Planning (Scotland) Act 1997 ('the 1997 Act'). The Scottish Ministers accepted the findings, and agreed with the reasoning and conclusions, of the reporters who had conducted a public inquiry, and adopted them for the purposes of their own decision. In the hearing of this appeal only the appellants, the Scottish Ministers (as first respondents) and Scottish Natural Heritage (as third respondents) were represented.
[2] For some years it had been recognised that there was a need for the regular review of old permissions relating to mineral working. Following an examination of the operation of the Town and Country Planning (Minerals) Act 1981 (cap 36) provision was made by the Planning and Compensation Act 1991 (cap 34) in regard to mining consents which had originally been granted between 1943 and 1948 under General Interim Development Orders, referred to as 'old mining permissions'. Holders of such permissions were required to register them with the planning authority and to submit a scheme of operating and restoration conditions for its approval. Provision was thereafter made by sec 96 of, and sched 13 to, the Environment Act 1995 (cap 25) ('the 1995 Act') in regard to the review of planning permissions for minerals development which had been granted between 1948 and 1982. According to para 6 in the introduction to circular 34/1996, which provided guidance in regard to the 1995 Act, the object of this legislation was not only to protect the environment and amenity but also to provide equal treatment between sites and mineral operators. The provisions which had been made by the Planning and Compensation Act 1991 were replaced by sched 14 to the 1995 Act. As was observed by Lightman J in R v North Lincolnshire Council, ex p Horticultural and Garden Sales (Humberside) Ltd (at p 366), these changes arose out of a recognised need to have a definitive list of all extant mineral planning permissions and to update the conditions on which such permissions had been granted.
[3] In due course the provisions of the 1995 Act were replaced by sec 74 of, and scheds 8 and 9 to, the Town and Country Planning (Scotland) Act 1997. In the present case the court is concerned with the latter of these schedules, which relates to the review of old mineral planning permissions granted between 1948 and 1982.
[4] Under sched 9 ('the schedule') the planning authority has a duty to prepare, advertise and give notice of the first list of mineral sites in their area (paras 3(1) and (2), 5(2) and (3) and 8(1) and (2)). For present purposes it is sufficient to say that a 'mineral site' is defined as 'the land to which...
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