Midland Quarry Company Ltd (Plaintiffs v Warwickshire County Council (Defendants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE PARKER,MR. JUSTICE PARK |
| Judgment Date | 24 January 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0123-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0014 |
| Date | 24 January 1985 |
[1985] EWCA Civ J0123-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COVENTRY DISTRICT REGISTRY
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Parker
and
Mr. Justice Park
85/0014
1981 M No. 0575
MR. H. WOLTON QC and MR. C. FAY (instructed by Messrs. Lester Dixon & Jeffcoate, Solicitors, Nuneaton) appeared on behalf of the Plaintiffs (Appellants)
MR. MICHAEL HARRISON QC and MR. ANDREW KELLY (instructed by The Chief Executive, Warwickshire County Council) appeared on behalf of the Defendants (Respondents)
Wednesday 23rd January 1985
Mr. Wolton and Mr. Harrison, the appeal will be dismissed, but we have two other appeals that we have to deal with this afternoon if we possibly can. We will give our reasons for dismissing the appeal, I hope at not too great a length, at 10.30 tomorrow morning. We shall not require the attendance of either leader tomorrow if such attendance will be inconvenient.
MR. HARRISON: I apply for costs, my Lord.
Mr. Wolton?
I have nothing to say to that, my Lord.
Then the appeal will be dismissed with costs.
Thursday 24th January 1985
We dismissed this appeal yesterday for reasons which I am now going to give.
This is an appeal by the plaintiff company from the refusal of Mr. Justice Popplewell to grant them a declaration against the defendant council. The appeal turns upon the construction of a planning permission granted to the company by the council's predecessor as planning authority, the Nuneaton Borough Council, on 14th June 1948. It really turns upon the meaning of one word in its context, the word "refuse". It is not suggested that there are any surrounding circumstances to clear up any ambiguity; nor is it now suggested, as it was before the learned judge, that there is any other document, for instance the application for planning, which can be looked at in aiding the construction of the planning permission. It is a self-contained document; and has to be interpreted in the light simply of commonsense and an understanding of the ordinary meaning of words. Does it give the permission which the company says it gives? Does it entitle the company to the declaration which it seeks?
By their originating summons the plaintiff company seeks a declaration that in consequence of the planning permission (which I shall read in a moment) it is entitled
"to deposit waste material or refuse in that part of a quarry at Tuttle Hill, Nuneaton in the County of Warwick which is defined in the Schedule to the said Planning Permission and further that such waste materials or refuse that can be deposited may be other than that which arises from quarrying operations carried out upon the said land".
Those last words were compendiously referred to in argument as "imported" waste material and refuse.
The planning permission is headed by the name of the planning autority; the heading goes on "Town and Country Planning Acts, 1932 and 1943; Town and Country Planning (General Interim Development) Order, 1946". It then sets out the Scheme, and it recites:
"IN PURSUANCE of their powers under the above- mentioned Acts and Order, the….. Council….. as interim development authority hereby permit the area of land" which is then set out and is referred to in a plan with various colouring upon it—" to be used for the purpose of quarry working, screening and crushing quartzite and diorite dry road stone and works incidental to the quarrying and production of stone, subject to due compliance with the byelaws and general statutory provisions in force in the district and subject also to the conditions specified in the Schedule hereto".
The second paragraph reads:
"AND THE COUNCIL do hereby also permit development by way of the deposit of waste materials or refuse and the construction and use of slurry beds in connection with the quarrying, working, screening and crushing of stone upon or within the areas hereinafter more particularly referred to in the said Schedule".
Except after the words "quarrying" and "working" there is not a comma or any other mark of punctuation in that sentence.
The third paragraph states the reasons:
"THE REASONS for the Council's decision to grant permission for the said development—namely, the quarrying of stone and the deposit of waste materials and the construction and use of slurry beds—subject to compliance with the said conditions, are to preserve the existing amenities, to protect certain public services and to provide for development of the area in conformity with the Council's planning proposals".
Then comes the schedule above referred to. The first condition refers to excavation; the second condition reads:
"Adequate provision shall be made to safeguard the watercourse on the said land and the public sewers and manholes upon the said land, (the position of which is indicated on the said plan by a yellow line) the existing houses and other premises adjoining the land and the Coventry Canal".
The third condition reads:
"So far as practicable all overburden, waste and surplus material shall be back-filled in the quarry, but where it is necessary to extend the existing tips the ame shall be extended within the boundaries of the area of land hatched green, on the said plan to the north- east of the lines marked 'public sewer' and coloured yellow on the said plan, and all overburden, waste and surplus exvacation shall be deposited in an orderly manner and equally distributed, provided that the heap resulting from the deposit shall not exceed 30 feet in height above any part of the surrounding ground level."
The fourth condition refers again to watercourses and public sewers; the fifth condition reads:
"No slurry beds shall be established or used within the area of land edged pink except within the area hatched green on the said plan and to the north- east only of the yellow lines on the said plan".
I need not read the sixth condition, but condition 7 has importance. I reads:
"As soon as the workings cease the quarries shall be left in a tidy condition with reasonably level floors, and the Applicants will afford to the Council all reasonable facilities for using the quarries for the purpose of properly controlled refuse tips".
Condition 7, which I have just read, is the basis of the main ground of Mr. Wolton's appeal on behalf of the company against the judge's refusal to grant the declaration sought. He has sought to put forward in this court a new argument, which was not addressed to the learned judge, that the judge
"failed to give effect to the permission for the deposit or...
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