Pioneer Aggregates (U.K.) Ltd v Secretary of State for the Environment

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton,Lord Scarman,Lord Roskill,Lord Bridge of Harwich,Lord Brandon of Oakbrook
Judgment Date24 May 1984
Judgment citation (vLex)[1984] UKHL J0524-1

[1984] UKHL J0524-1

House of Lords

Lord Fraser of Tullybelton

Lord Scarman

Lord Roskill

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Pioneer Aggregates (U.K.) Limited
(Respondents)
and
Secretary of State for the Environment and Others
(Appellants) (England)
Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it and, for the reasons stated in it, I would dismiss this appeal.

Lord Scarman

My Lords,

2

In this appeal two questions fall to be considered by the House. The first is a question of legal principle: whether a planning permission for the development of land can be abandoned by act of a party entitled to its benefit. Abandonment, it is said, has the effect that thereafter no person can lawfully resume the hitherto permitted development without obtaining a fresh planning permission. The local planning authority, appellant in this appeal, submits that abandonment effective to terminate a planning permission is recognised by law. The respondent, the owner of land to which the permission in dispute relates, submits that no such abandonment is recognised by law.

3

If the answer to the question of principle be in the affirmative, it will become necessary to consider whether upon the facts of the case the permission was abandoned. If it were, the appeal (on this premise) would succeed. But if the question of principle should be answered in the negative, the appeal must be dismissed unless the House is prepared to accept the appellant's alternative contention, which raises the second question: namely, has the development, which was permitted by the relevant planning permission, been completed? It is conceded, correctly, that, if what was then permitted has been completed, a resumption of the same type of operations would be not the resumption of the earlier development but a new development requiring a fresh planning permission. The first question is of importance in the planning law. If, however, the second question be answered in the affirmative, the appeal would have to be allowed irrespective of the answer to the first. The second question depends upon the proper construction of the terms of the relevant planning permission, and upon their application to the facts of the case.

4

My Lords, I propose first to outline such of the facts as are necessary to determine the two main questions, and secondly to consider those two questions. The subsidiary issue as to whether the permission has been abandoned will not arise unless in law it is possible to abandon it.

5

The Facts

6

For a full statement of the facts I would refer to the admirable judgment of Glidewell J. before whom the appeal came from the enforcement notice after being dismissed by the Secretary of State.

7

The Peak Park Joint Planning Board, the appellant, is the local planning authority for the part of Derbyshire which includes the area of land with which the appeal is concerned. Pioneer Aggregates (U.K.) Ltd., the respondent, is the owner of the land. By an enforcement notice dated 25 February 1980 the Board required Pioneer to remedy what in the notice was alleged to be a breach of planning control, namely development of the land by certain mining operations. Pioneer admits the operations but contends that they constituted no breach of planning control. The case is really a test case. Pioneer is not mining on the site. It knew that the local planning authority took the view that to resume mining on the site would be a breach of planning control. It fired one blast to remove some stone so as to bring the difference of opinion to a head. Pioneer has done nothing further save to exercise its rights of appeal against the enforcement notice.

8

The site to which the notice relates is an area of some 25 acres within the Peak District National Park. It is to the north of a lane leading to the hamlet of Heathcote. I shall refer to this area as the northern or the appeal site. There is on the appeal site an existing limestone quarry and attendant plant and buildings. But until the test firing of February 1980 there had been no quarrying or other mining operations since 1966.

9

The history of mining on the appeal site, so far as presently relevant, can be shortly stated. On 31 October 1950 the then Minister of Town and Country Planning (to whom at the time application for planning permission to work minerals had to be made) granted Hartshead Quarries Ltd. permission for the mining and working of limestone on an area of land which included the appeal site. This area included, additionally to the appeal site, a larger piece of land on the south side of Heathcote Lane and separated from the appeal site by the lane. The permission allowed for the construction of a tunnel under the lane. The reason for the tunnel (which, however, was never constructed, though a detailed permission was granted in 1955) becomes clear from a study of the conditions imposed for the disposal of waste material. So long as mining was confined to the appeal site, waste material was to be tipped on to a spoil bank. If and when mining was extended to the area south of the lane, the waste material was to be brought across (or under) the lane and tipped in the quarry made by the excavations on the northern site. Since they bear on the second question, it will be convenient at this stage to quote in full two of the conditions subject to which permission was granted:

"3. On the completion of quarrying in the area north of the highway tipping of waste material on the said spoil bank shall cease and all waste material shall be deposited within the excavations formed by quarrying in that area to a level surface. 4. On the conclusion of quarrying in the area north of the road all mineral stocks shall be stored in that area."

10

It is clear from these two conditions that quarrying on the land to the south of the lane was envisaged as (allowably) continuing after conclusion of quarrying to the north, but that, if it did, waste material should no longer be deposited on the spoil bank but in the northern quarry and mineral stocks were to be stored on the northern site.

11

On 9 November 1962 a further permission was granted extending the area of excavation and of tipping subject to conditions. Nothing turns on this permission, which is to be read merely as an extension of the 1950 permission subject to certain conditions.

12

Hartshead extracted limestone from the appeal site from 1950 to 1966. On 15 September 1966 they wrote to the Board a letter in which they gave notice that they would cease quarrying not later than 31 December of that year. They had confined their operations to the appeal site, although they had acquired the land, or, at the very least, the mineral rights in the land to the south of the lane. Their letter dealt with all the land covered by the planning permission, i.e. the land both to the south and the north of the lane. It indicated clearly their intention to cease quarrying and to vacate all the land and to remove their plant and buildings. The Board relies on this letter and the subsequent course of negotiations to establish their case that Hartshead, by electing to treat the 1950 permission (together with its 1962 extension) as at an end, abandoned it.

13

I pass over the negotiations which followed upon Hartshead's ceasing from mining operations save only to mention that they negotiated with the Board a satisfactory solution to the restoration problem. On the 6 January 1967 the Board wrote to Hartshead informing them that the restoration conditions had been met to its satisfaction. The Board did not insist on a full compliance - probably because it believed that Hartshead's departure marked the finish of mining operations on the land to which the permission related.

14

In 1978, Pioneer became interested in the area covered by the permission of 31 October 1950 as extended by that of 9 November 1962. It asked whether planning permission to quarry was needed. By letter dated 29 January 1979 the Board took the two points which now fall to be decided by the House. The Board said:

"In relation to the entire quarry (one Planning Unit) for which planning permission was granted by letter dated 31 October 1950, as extended by the permission of 9 November 1962, planning permission for the site has been abandoned."

15

The letter is ambiguous. It is not clear whether it refers to all the land covered by the 1950 permission or only to the land north of the lane (the appeal site). I read it as alleging that planning permission in relation to all the land to which the 1950 permission related had been abandoned. Whether that be right or wrong, the letter certainly did go on to deal explicitly with the appeal site and in relation to that site made the second, alternative point upon which the appellant relies in the appeal. The Board said:

"In addition and in the alternative, the north-west area having been completed to the written satisfaction of the planning authority pursuant to the third condition [of the 1950 permission], cannot now be opened up without a new express permission."

16

The First Question - Abandonment

17

If the Board is right, a valid planning permission can be abandoned by the conduct of a landowner or occupier of land; and the effect of the party's conduct will be to bind all persons interested in the land now or hereafter whether or not they have notice of the abandonment. The planning permission would be entered in a public register: but not so its abandonment. Nor would it be possible by inspection of the land to discover whether the permission had been abandoned, for the absence of implementation of a planning permission is no evidence that a valid permission does not exist. It is perhaps not surprising that no trace of any such rule can be found in the planning legislation. If...

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