R (Lowther) v Durham County Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR,LORD JUSTICE PILL,SIR MARTIN NOURSE |
| Judgment Date | 24 May 2001 |
| Neutral Citation | [2001] EWCA Civ 781 |
| Docket Number | Case No: C/2000/2471 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2001 |
[2001] EWCA Civ 781
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr. Justice Gibbs
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Phillips, Mr
Lord Justice Pill and
Sir Martin Nourse
Case No: C/2000/2471
Lord Kingsland, QC and Greg Jones (instructed by Richard Buxton for the Appellant)
Neil King, QC and Reuben Taylor (instructed by Durham County Council Legal Services for the First Respondent)
Gregory Stone, QC and Thomas Hill (instructed by Travers Smith Braithwaite for the Second Respondent)
The second respondents have a quarry at Thrislington in Durham. They also have at Thrislington a plant for converting the rock that they quarry into dolime. The relevant process involves heating the crushed rock in kilns. To do this they used to burn petcoke alone. In 1996 they substituted for a proportion of the petcoke used in one of their kilns, a substance known as secondary liquid fuel or SLF. An issue arose as to whether this substitution involved a material change in the use of their land for which they required planning permission. The first respondents are the relevant planning authority. On 10 February 1999 the first respondents, through the Planning Sub-Committee of their Policy and Resources Committee ("the Sub-Committee"), decided that no material change of use was involved so that planning permission was not required. The appellant applied to have that decision quashed on the ground that it was founded on advice as to the law that was unsound. On 21 June 2000 Gibbs J. dismissed her application. She appeals to us from his judgment.
The Primary Legislation
S.57 of the Town and Country Planning Act 1990 provides that, subject to exceptions, planning permission is required for the carrying out of any development of land.
S.55 of this Act provides:
(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining or other operations in, or, over or under the land, or the making of any material change in the use of any buildings or other land.
The Act contains no definition of "material change in the use".
The Facts
The following summary of the material facts repeats, in large measure, the facts set out in the judgment of Gibbs J. They are not disputed.
The applicant is a local resident with an interest in the issues arising from the Sub-Committee's decision. The second respondents Lafarge Redland are joined because they operate the works in respect of which the possible change of use was being considered.
The site to which this application relates is a quarry owned by the second respondents at Thrislington. It is located about nine kilometres south- east of Durham and one kilometre to the west of the A1M road. The nearest centre of population is West Cornforth which is a kilometre to the north- east and there are some other villages a bit further away. The surrounding land is principally agricultural. The quarry site contains a large number of buildings and items of plant used both for lime processing and quarrying. It includes a substantial amount of machinery associated with the latter process, including crushers, wash plants, kilns etc.
The consent for quarrying at the site was first granted in 1947 and, subsequently, consents were granted on a number of occasions including consent for extensive quarrying to the east of the road on which the site was located. The first rotary kiln with ancillary plant was approved in April 1956, a second rotary kiln was approved in April 1960 and a third in November of 1976. The three kilns are generally referred to by the second respondents under the names T1, T2 and T3. These are relevant to the case, in particular, although as the site was developed there were a number of other planning permissions sought and granted.
The works at the site, the Thrislington works, opened in 1958 in order to quarry rock for the production of an end product known as dolomite or dolime. It is a large operation, some two million tons of this substance are quarried each year. Almost all of it is processed on site. It is broken from the quarry by means of drilling and blasting and it is quarried selectively in order to obtain the type of material more suitable to be formed into dolime. It is crushed and then conveyed to the kilns. It is treated in the kilns and the gas emissions created in the process, having been treated, are allowed to escape through a tall chimney some 70 feet high. The end product is used in a variety of specialist ways, apparently important in steel production and the refractory industry.
The production process requires intensive heat. The way in which the heat is applied to the raw limestone during the production process affects the reactivity of the end product. It is desirable to apply heat in a very controlled manner at the correct temperature and for the correct period to ensure the conversion of the limestone into the product known as dolime.
The dolime is produced from two of the three kilns which I have mentioned; kiln T2, having been decommissioned in 1998 for various technical reasons. There are also good reasons why, from the second respondent's point of view, kiln T3 is used in preference to kiln T1.
In the relevant part of the process, namely the use of fuel in the kiln, the stone is fed, having gone through a preheating process, into the upper end of the kiln, which is slightly inclined and which rotates around its long axis. The fuel is burnt at the lower end in a flame, which has to be extremely hot, at least 1800 degrees centigrade and usually in excess of 2000 degrees. The rotation of the kiln moves the stone progressively towards the lower end of it, which is hotter, and it takes some three and a half to five hours to go through the kiln system, in the course of which the material reaches a temperature of 1400 to 1550 centigrade.
The exhaust gases from the system are processed and then the gas is ultimately discharged through the chimney stack. There are monitors in position checking the concentrations of dust, nitrate oxides and the temperature within the cleaned gases. The purpose of this is to enable the kiln operator to take any necessary action to adjust the system so that it is working properly.
As to the fuel used in those processes, petroleum coke, known for short as petcoke, has been used as the only fuel in T1 since 1987 and was used as the only fuel in the decommissioned kiln T2. Petcoke is the by-product of a crude oil process and was, as a by-product, unwanted until a market developed for its use as fuel.
The relevant kiln in this case is T3, where SLF is used. The fuel used most of the time in T3 is a mixture of SLF and petcoke. The kiln is authorised by the Environment Agency to use SLF as a support fuel. It is used as up to 40 per cent of the contribution to the heating process, however, it is more usually used at between 20 to 25 per cent thermal substitution; the reason is that normally there is not enough SLF available to run at 40 per cent on a continuous basis. If no SLF is available at all petcoke is used as the sole fuel. It should be said immediately, because it is important in the case, that SLF consists of blended constituent parts. Each of those constituent parts consists entirely of waste produced from solvents. The blending process is sophisticated and SLF is produced to a sheet specification, checked by analysis at various stages of the process.
From the second respondent's point of view the qualities of SLF make it particularly useful for their burning process in the kiln. The reason is that fuels derived from solvents burn with a shorter and sharper flame and are exceedingly effective as a means of heat transfer. In trials, and in use, the operational advantages of blending SLF with petcoke as a fuel have been convincingly demonstrated. Amongst the advantages are that such a blend is more amenable to computer control and the flow of fuel into the kiln can be more accurately organised; this ensures greater consistency of product. Because of the volatility of the material it burns more quickly and consistently and, among other things, apart from enhancing the product, lengthens the life of the kiln. However, as already indicated, it is used only as a constituent part of the mixture, up to 40 per cent, and indeed can only effectively be put to use in conjunction with petcoke.
The fuel is transported to the quarry site by road in tankers. The sole supplier of the fuel is a company called Solrec which specialises in solvent recovery and is based in Morecambe. Upon arrival at the site the SLF is pumped into one of four storage tanks which have been purpose built. They are located close to the relevant kiln, T3. Transfer of fuel from the storage tank to the kiln is effected through pipes, each tank having a separate pipe leading directly to the kiln supply pump.
The history of planning and other permissions in relation to the specific use of SLF is as follows: on 13 October 1993 an application for planning permission was made for the erection of solvent fuel storage tanks and planning permission was granted in December of 1993. In the course of 1993, prior to that, there had, in conjunction with the Environment Agency or its predecessor, been testing of the use of SLF in the kiln.
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