Sargeant v Essex County Council
| Jurisdiction | England & Wales |
| Judgment Date | 19 August 2009 |
| Neutral Citation | [2009] EWHC 2232 (Admin) |
| Date | 19 August 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1429/2009 |
[2009] EWHC 2232 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin QC
(Sitting as a Deputy High Court Judge)
CO/1429/2009
Mr P Stinchcombe (for judgment, Miss S Hannett) (instructed by Messrs Foskett Marr Gadsby & Head, Epping, Essex, CM16 4BQ) appeared on behalf of the Claimants
Mr R Fookes (instructed by Messrs Eversheds) appeared on behalf of the Interested Party
The Defendants were not represented by counsel
THE DEPUTY JUDGE:
(1) Introduction
1. The Claimants, who are the owners and occupiers of St Osyth Priory, Colchester Road, St Osyth, Essex, apply for judicial review to challenge the purported approval of a restoration scheme for voids left by mineral workings following the review of planning permissions in 2001 on areas of land some of which are leased to them by Cemex UK Operations Ltd, the Interested Party (subject to the limited reservation of mineral rights) and some of which are owned freehold by Cemex. I shall refer to those areas of land individually as follows:
(1) the three areas comprising land at St Osyth (“ the Priory Site”) subject to a planning permission for “the winning and working of sand and gravel and purposes ancillary thereto” granted on 5. 1.1965 under reference TEN/308/64 (“ the 1965 Permission”); and
(2) the area comprising land at Martin's Farm subject to a planning permission for sand and gravel workings granted on 1.9.1960 under reference TEN/3/49 (“ the Martin's Farm Site”) and later subject to a planning permission for the construction of silt ponds dated 14.12.1989 (TEN/334/89) and a certificate of lawful development granted in 2006.
2. The Martin's Farm Site lies to the north of the Priory Site and is separated from it by several other properties although, at some stage, the two sites were connected by a conveyor. They lie at no great distance from each other and are both accessed from the west side of Colchester Road, St Osyth. The intervening properties were, at some stage, also subject to minerals permissions, TEN/290/60 and TEN/79/69. There are two other former mineral sites in close proximity to, or virtually adjacent to, the sites and they cluster in a group around the Colchester Road north west of St Osyth.
3. The Claimants are the long leaseholders of land including the majority of the Priory Site and Cemex is the freehold owner of the mineral sites and is the operator which has been involved in the winning and working of minerals from those sites and has been responsible for restoration. Cemex, then known as Rombus Materials Limited, purchased the freehold of the sites and surrounding land in April 1987 and on 3. 4.1987 granted a Lease of the Property back to Somerset Stuben de Chair for a term of 400 years (“ the Lease”). The Lease excepted and reserved mineral extraction rights to Cemex in respect of the demised premises for 15 years from 3.4.87, with provision for a possible 3 year extension. In September 1999, the Claimants purchased the unexpired residue of the term of the Lease by which time mineral extraction had ceased. At the same time, the Claimants purchased the freehold of the buildings at the Priory and various other areas of land in the vicinity.
4. There are currently proceedings in the Chancery Division between the Claimants and Cemex which involve claims as to trespass and damages which in part are concerned with the outcome of the issues before this Court. I do not propose to describe those proceedings further since they do not directly affect the issues I have to decide. Regardless of the outcome of those proceedings, it is the Claimants who are now largely responsible for the restoration of the Priory Site since they are in possession and control of it as long leaseholders. In addition to their general concerns for the setting of St Osyth Priory and its parkland they are concerned to ensure proper restoration of the Priory Site and are particularly concerned with the use of wet silt, which is said to be difficult and potentially dangerous to use for restoration, and which is said to have been deposited on the Site as part of earlier restoration works.
5. The area in question has been the subject of mineral working for many years although it is of some sensitivity: the buildings at St Osyth Priory are of considerable historic and architectural value, some elements of which are listed, including listing at Grade I, the adjoining parkland (dating from the 18th Century) is also listed and an SSSI and lies adjacent to other land of ecological interest. Further, the Priory is occupied as a family home by some of the Claimants and their children.
6. On 7 July 2001, following an application made some 4 years earlier, under the provisions for the review of old mineral planning permissions in s.96 and Schedule 13 of the Environment Act 1995 (“ the 1995 Act”) the Defendant approved a new set of conditions (“ the ROMP Consent”) for the combined Priory and Martins' Farm sites aggregating permissions TEN/308/64 and TEN/3/49 for these purposes in accordance with para. 1(2)(a) of Schedule 13 to the 1995 Act (“ the ROMP Site”). Both the Priory Site and the Martins' Farm Sites were “active” permissions within the meaning of para. 1(5) of Schedule 13.
7. The challenge concerns Condition 12 of the ROMP Consent, which required a restoration scheme to be submitted and approved in substitution for restoration conditions imposed on the original permissions, and also the subsequent approval by the Defendant of a scheme under that condition on 12.12.08.
8. The ROMP Consent required the closure of the operations on the sites progressively. Condition 1 required extraction to cease by 31.12.05, processing to cease by 31.12.07 and restoration work to be completed by 31.12.08. All that remained after 2008 was the programme for aftercare, approved under Condition 17. As will become apparent, the restoration work was not completed as required by the end of 2008 and remains incomplete today.
9. It appeared to be common ground that, whatever the outcome of these proceedings, and subject to the North East Derbyshire District Council case, below, it is likely that a further planning permission will be necessary to permit the completion of the restoration work. Any enforcement action would inevitably have to consider giving time for compliance with the substance of the restoration requirements after the end date of 31.12.08, after the end date of any timetable which might have been imposed under Condition 12.
10. Permission for Judicial Review is sought on four grounds. Grounds 1 and 3 were refused on paper by Langstaff J on 8.5.09 who directed a rolled-up hearing on Grounds 2 and 4. The Claimants have renewed their application for permission on Ground 1 and, by agreement with the parties, I have treated the hearing as a rolled-up hearing for Grounds 1, 2 and 4 as the most expeditious way of dealing with the application. Ground 3 is not pursued.
11. The Defendant, Essex County Council, the Minerals Planning Authority (“MPA”) does not appear on the substantive issues having indicated by letter dated 2.7.09 that it would submit to judgment on Ground 2 only.
(2) History of the minerals sites
12. It is unnecessary for me for the purposes of this judgment to rehearse the detailed planning history of both sites, save to note that they are of some considerable age, the original permission for Martin's Farm having been granted in 1949. The history, so far as is relevant, is as follows.
(a) The Priory Site and the 1965 Permission
13. Following an application made in May 1961, planning permission was granted for the Priory Site (in reality, 3 sites in close proximity) on 5. 1.1965 (TEN/308/64) for “the winning and working of sand and gravel and purposes ancillary thereto on 88.5 acres of land at St Osyth Priory Estate, St Osyth, Essex”. Various conditions were imposed of which the most relevant are as follows —
“3. The winning and working of minerals shall take place in accordance with an orderly programme of operations as indicated on the plan submitted and as more particularly referred to in a letter to the local planning authority dated 29 May 1964 ref: JCB/ZM6236, in such a manner that the land not required for immediate working can remain for agriculture use.
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5. All loamy topsoil shall be stripped and stored separately and the remainder of the overburden shall be stripped and stored in positions to be agreed with, and to the satisfaction of the local planning authority.
6. On area No 8 and on as much of areas Nos. 4. 5. 6. and 7. as is possible the overburden shall be respread and the topsoil shall be respread over the overburden to the satisfaction of the local planning authority.
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9. Any sections in the worked out aread that remain higher than the level of standing water shall be leveled and graded to the new drainage outlets.
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11. No heaps of overburden or other material shall be left on the site after completion of working; such materials shall be spread over any dry section of the worked out area in accordance with the requirements of condition 9 and used for grading the sides of the excavation in accordance with the requirements of condition 8.
12. At such time as shall be agreed between the operators and local planning authority or in default of agreement as shall be stipulated by the local planning authority the operators shall submit to the local planning authority a...
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