Mwh Associates Ltd v Wrexham County Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Arden,Lord Justice Lloyd Jones |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1884 |
| Date | 28 November 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/11/2455 |
[2012] EWCA Civ 1884
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
LANDS TRIBUNAL
(MR GEORGE BARTLETT QC and MR AJ TROTT)
Lord Justice Pill
Lady Justice Arden
and
Lord Justice Lloyd Jones
Case No: C3/11/2455
Mr Rhodri Price Lewis QC appeared on behalf of the Appellant
Mr Stephen Sauvain QC and Mr Eric Owen appeared on behalf of the Respondent
This is an appeal against a decision of the Upper Tribunal, Lands Tribunal, Mr George Bartlett QC, President, and Mr AJ Trott, dated 19 July 2011, [2011] UKUT 269 LC. MWH Associates Limited ("the appellants") sought compensation from Wrexham County Borough Council ("the council") under section 107 of the Town and Country Planning Act 1990 ("the 1990 Act") by reason of modifications by the council of planning permissions granted by them in 1995 and 1998. Subject to the claim being established, compensation was agreed at a sum representing the depreciation of the value of the land. That was assessed on the basis of loss of effective profit from mineral extraction and landfill.
Section 107 of the 1990 Act provides:
"(1)Subject to section 116, where planning permission is revoked or modified by an order under section 97, then if, on a claim made to the local planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the land or in minerals in, on or under it—
(a) has incurred expenditure in carrying out work which is rendered abortive by the revocation or modification; or
(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification,
the local planning authority shall pay that person compensation in respect of that expenditure, loss or damage."
The background to the reference was stated by the Lands Tribunal:
"1. The claimant in this reference, MWH Associates Limited, is a waste management company that acquired ownership in February 2005 of a substantially excavated quarry known as Hafod Quarry and Landfill Site, Johnstown, near Wrexham, as a site for the disposal of waste. The quarry and areas adjacent to it contain a population of great crested newts (GCN), a European protected species under Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive). Part of the quarry and adjacent areas were designated as a Site of Special Scientific Interest (SSSI) in June 2001 and a Special Area of Conservation (SAC) in December 2004.
2. The quarry had been worked under a planning permission granted in October 1988. The Environment Act 1995 required the periodic review of mineral planning permissions and, where necessary, the imposition of revised planning conditions. The compensating authority, Wrexham County Borough Council (WCBC), as the mineral planning authority (MPA) approved revised conditions in respect of the 1988 permission on 4 September 2006. Condition 4 of the revised conditions required the claimant to submit details showing that no mineral extraction would take place within any area notified as a SSSI/SAC or within any adjacent area where the integrity of the SSSI/SAC s ecological features would be affected.
3. Under the 1995 Act a restriction of working rights under conditions imposed under the review procedure has effect as if a modification order under section 97 of the Town and Country Planning Act 1990 had been made; and under section 107 of the 1990 Act a person interested in the land affected by a modification order is entitled to compensation in respect of any loss or damage which is directly attributable to the modification. The claimant claimed compensation under this provision for expenditure, loss and damage incurred as a result of being unable to win and work minerals from the area of the site affected by the new condition 4 and, as a direct result thereof, for the expenditure, loss and damage incurred as a result of losing void space for landfill.
4. The compensating authority resist the claim for compensation on two principal grounds. They say, firstly, that the claimant did not in fact intend to work the minerals in the land or to use the void space for landfill; and, secondly, that it would in any event have failed to obtain the necessary derogation licence to permit the translocation of the GCN living on the land, so that it could not lawfully have worked the minerals.
5. There is agreement on the amount of the compensation, on the assumption that the council fails in both these contentions, except that the cost of relocation of the GCN is dependent upon the date chosen to assess the size of the GCN population."
The sum claimed, subject to possible variation the variation referred to in paragraph 5, is between £4.2 million and £4.4 million. As appears from that summary there were, in addition to the 1988 mineral permission, permissions for the infilling of the land. The modification order with respect to the mineral permission took effect in September 2006, and modifications with respect to landfill permissions in 2007. The agreed valuation date for present purposes is 4 September 2006. By the mineral modification, no mineral extraction was to take place within an area notified as an SSSI/SAC (Site of Special Scientific Interest and Special Area of Conservation), or in any adjacent area which might affect the integrity of the SSSI/SAC's ecological features. Landfill rights were excluded by the landfill modifications. The issues have been considered on the basis that only a lawful use of the site would be, or would have been made, and should be contemplated.
The tribunal set out in very considerable detail the history of the conduct in relation to the site of the appellants and their predecessors-in-title since the permissions were granted, and also the statutory regimes are fully set out. The issues on the appeal are such that no narrative in such detail is required.
Hafod Quarry is located about five kilometres southwest of Wrexham City Centre, and has an area of about 33 hectares. The site was acquired by MWH's holding company in 2005, following a due diligence report issued by consultants in April 2002. The previous owners were Shropshire Waste Management Limited ("SWML"). The tribunal held that MWH had consistently sought to retain its working rights at the quarry, while recognising that, given the European importance of the site, it was likely that statutory powers would be exercised to reduce the area in which the rights could be exercised. MWH consistently declined the council's requests to agree to surrender those working rights, or to negotiate their elimination. The appellants claim that there has been a real and compensatable loss upon the removal of the working rights has been maintained throughout. The protected status of Great Crested Newts ("GCNs") arises from Habitat Directive 92/43/EEC of 21 May 1992, transposed in Wales by the Conservation (Natural Habitats) Regulations 1994, now replaced by 2010 regulations.
Following action by the European Commission, the National Assembly for Wales ("NAW") designated the claim site as the Johnstown Newts Site SAC in December 2004. The site had been designated an SSSI in 2001. Article 12(1) of the Directive, transposed by regulations 39 and 41, requires Member States to take the requisite measures to establish a system of strict protection for animal species listed in Annex 4 to the Directive, which includes GCNs. Under Article 16(1), transposed in regulation 44, Member States are permitted to derogate from the protection for particular specified purposes and subject to safeguards. It was accepted as being open to MWH to seek a licence from the council, known as a derogation licence, which would permit them to work on the site. In present circumstances, in the absence of such a licence, it would be an offence under regulation 39 to work the site.
The provision relied on by the appellants is in regulation 44(2)(e), though there had been an earlier reliance on 44(2)(c). 44(2)(e) provides that a licence may be issued for reasons including:
"Other imperative reasons of overriding public interest, including those of a social or economic nature, and beneficial consequences of primary importance for the environment."
Reliance is placed by the appellants on the need for landfill facilities in North Wales. That need has been accepted by the NAW, and in the development plan and other policy guidance, as well as in a planning officer's report to the council. Regulation 44(3) provides:
"The appropriate authority shall not grant a licence under this regulation unless they are satisfied (a) that there is no satisfactory alternative, and (b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned and a favourable conservation status in their natural range."
Under Article 1 of the Directive, the conservation status of a species will be taken as "favourable" when "population dynamics data on the species indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitat and the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future and "there is and will probably continue to be a sufficiently large habitat to maintain its populations on a long-term basis."
The appellants' claim had been put to the tribunal as a claim that profits had been lost by reason of the modification orders. At a late stage during counsel's closing speech, the claim was also...
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