R (Reprotech (Pebsham) Ltd) v East Sussex County Council

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MACKAY OF CLASHFERN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE
Judgment Date28 February 2002
Neutral Citation[2002] UKHL 8
Date28 February 2002
CourtHouse of Lords
Regina
and
East Sussex County Council
(Appellants)
Ex Parte Reprotech (Pebsham) Limited
(Respondents)

and one other action

[2002] UKHL 8

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree that for the reasons he gives this appeal should be allowed.

LORD MACKAY OF CLASHFERN

My Lords,

2

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hoffmann. For the reasons he gives with which I agree I would allow the appeal and dismiss the originating summons and the application for judicial review.

3

I add observations on two matters that were touched on in the argument before your Lordships.

4

Subsection (2) of Section 73 of the Act of 1990 quoted by my noble and learned friend provides "the local planning authority shall consider only the question of the conditions subject to which the planning permission should be granted…."

5

It seems to me that the authority in carrying out this duty will require to have in view the scope of the permission granted in deciding whether different conditions or no conditions should be attached to the permission, and the subsection does not exclude this. In the present case, if the committee had taken the view that generation of electricity was not permitted under the planning permission, they could not sensibly have resolved as they did. But this does not mean that in doing so, they were making a decision under section 64 and still less, if the situation arose today under section 192 of the legislation now in force.

6

I would also wish expressly to agree that where public authorities are fulfilling statutory duties or exercising statutory discretions, the public interest in their activities and the effect on members of the public who are not parties to the particular process which the authority is conducting requires the law to differentiate clearly between such activities and those in which interests only of those directly involved must be considered. I therefore respectfully agree with Lord Hoffmann that the time has come for public law in this area to stand upon its own two feet. If it does so, I believe greater clarity will result than if it is treated as standing upon some less discrete base.

LORD HOFFMANN

My Lords,

7

In 1989 the East Sussex County Council built a waste treatment plant near a landfill site just north of the A259 between Bexhill and St Leonards-on-Sea. It was vested in a company owned by the council called East Sussex Enterprises Ltd ("ESEL"). In 1990 ESEL and the council decided to sell the plant and advertised for tenders.

8

The plant operated by converting as much as possible of the waste into fuel pellets. But some potential purchaser suggested that they might want also to be able to use the waste to generate electricity. They raised the question of whether this would amount to a material change of use that required planning permission.

9

The solicitors for one of the potential purchasers consulted Mr Roy Vandermeer QC. He advised that it would not be a material change of use. The primary use of the site was the treatment of waste. Generating electricity would just be another way of using the treated waste, ancillary to the primary use. On 12 December 1990 the solicitors wrote to the County Planning Officer, setting out the arguments in detail.

10

The County Planning Officer thought that this was right. But neither ESEL nor the interested purchasers made a formal application to the County Council to determine the matter. Such an application could then have been made under section 64 of the Town and Country Planning Act 1990:

"(1) If any person who proposes to carry out any operation on land, or to make any change in the use of land-

(a) wishes to have it determined whether the carrying on of those operations or the making of that change, would constitute or involve development of the land, and

(b) if so, whether an application for planning permission in respect of it is required under this Part…

he may apply to the local planning authority to determine that question.

(2) An application under subsection (1) may be made either as part of an application for planning permission or without any such application.

(3) The provisions of sections 59, 69(1), (2) and (5), 70, 74, 77, 78 and 79 shall, subject to any necessary modifications, apply in relation to any application under this section, and to the determination of it, as they apply in relation to applications for planning permission and to the determination of such applications."

11

Section 64 has since been repealed and replaced by sections 191 and 192 of the 1990 Act, to which I shall refer in due course. As appears from subsection (3), applications under section 64 were largely assimilated to planning applications. Like planning applications, they had to be entered on a register open to public inspection: section 69. Regulation 9(1) of the Town and Country Planning General Development Order 1988 SI 1988 No. 1813 ("the General Development Order") required the application to be in writing and to-

"contain a description of the operations or change of use proposed and be accompanied by plans or drawings sufficient to identify the land to which the application relates and the nature of the operation.

Regulation 9(2) provided that -

"Where the proposal relates to a change of use, a full description shall be given of the proposed use and of any use of land at the date when the application is made.…"

12

By regulation 20(1)(b), a county planning authority was obliged to give the district planning authority at least 14 days "to make recommendations about the manner in which the application shall be determined; and shall take such recommendations into account." And, as in the case of planning applications, the Secretary of State was entitled to call in the application for his own determination: section 77 of the 1990 Act, as applied by section 64(3). The planning authority was required within 8 weeks of receiving the application to give the applicant notice of its determination or notice that the matter has been referred to the Secretary of State: regulation 23 of the General Development Order. If no such notice was given, the applicant was entitled to appeal. If it did determine the application, the county planning authority was also obliged to notify the district authority as soon as reasonably practicable of the terms of its decision.

13

Any prospective purchaser could have made an application under section 64. But - and this is what lies at the heart of this case - no such application was made. Instead, the interested purchaser's solicitors directed their attention to another point. The planning permission under which ESEL built and operated the site contained a condition 10, imposed in the interests of the amenities of the area:

"No power-driven machinery shall be used or operated before 6.00 am or after 10.00 pm on Mondays to Saturdays (inclusive), except in emergencies or for the essential maintenance of the Waste Treatment Plant. There shall be no working of the Waste Treatment Plant on Sundays or Bank Holidays."

14

It is not practical to generate electricity for commercial distribution otherwise than 24 hours a day, 7 days a week. So the purchaser's solicitors asked whether the condition could be suitably amended. ESEL agreed to make an application. On 7 January 1991 it applied to "seek an amendment to Condition No. 10 of the approved planning application". It asked that condition 10 be varied by inserting after "power- driven machinery" the words "(other than a turbine and such other equipment necessary for the generation of electricity)".

15

The application was made under section 73 of the Town and Country Planning Act 1990, headed "Determination of applications to develop land without compliance with conditions previously attached". It provides in subsection (2) that on such an application -

"…the local planning authority shall consider only the question of the conditions subject to which the planning permission should be granted and-

(a) if they decide that planning permission should be granted subject to conditions differing from those to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

16

The application fell to be determined by the County Council as planning authority. On 27 February 1991 it came before the Development Control Sub-Committee, which had delegated authority to deal with it. The committee was assisted by a report from the County Planning Officer, who identified the key issues as-

"i) To consider whether the process of generating power from waste material requires planning consent;

ii) To consider whether the noise emissions from the machinery would have an adverse effect on local residents."

17

His recommendation was that planning permission be granted subject to conditions. In his report, he said that, on the first issue, he was satisfied that no material change of use was involved. On the second, his opinion was that noise could be controlled by a condition that noise levels at night should not exceed 3dB(A) over existing ambient levels.

18

The minutes of the Committee record a resolution -

"subject to a satisfactory noise attenuation scheme which should ensure that night time noise emissions would not exceed 45dB(A) being agreed with the County Planning Officer,...

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