Staffordshire County Council v NGR Land developments Ltd and Dr Nigel Roberts
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE LONGMORE |
| Judgment Date | 21 May 2002 |
| Neutral Citation | [2002] EWCA Civ 856 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 2002 |
[2002] EWCA Civ 856
Lord Justice Peter Gibson
Lord Justice Jonathan Parker
Lord Justice Longmore
IN THE SUPREME COURT OF JUDICATURE A3/2001/1174
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(His Honour Judge Boggis)
Royal Courts of Justice
Strand
London WC2
MR ALAN EVANS (Instructed by Mace & Jones, Drury House, 19 Water Street, Liverpool, Merseyside L2 ORP) appeared on behalf of the Appellants.
MR DAVID PARK (Instructed by Staffordshire County Council, County Buildings, Martin Street, Stafford ST16 2LH) appeared on behalf of the Respondent.
Tuesday, 21st May 2002
I will ask Jonathan Parker LJ to give the first judgment.
This appeal is concerned with the situation which arises where there are two subsisting planning permissions in different terms relating to the same land.
On 13 November 1956 Cannock Rural District Council, on behalf of Staffordshire County Council as the local mineral planning authority, granted planning permission under reference CCR/1767 ("the 1956 permission") for the working of clay and associated minerals on a site at Cheslyn Hay, Wolverhampton, known as the Campions Wood site. On 23 February 1987 the Secretary of State for the Environment, on appeal, granted to the National Coal Board Opencast Executive (an agency of the National Coal Board ("the NCB")) planning permission ("the 1987 permission") for the winning and working of coal by opencast methods on a site to the south of Cheslyn Hay known as the Streets Lane site. The area of the Streets Lane site included part of the Campions Wood site, extending to some 6.3ha. The part so included has been referred to in argument and in the judgment below as "the Area of Overlap", and I will so refer to it in this judgment. The appellants, the defendants in the proceedings, are persons interested in the Area of Overlap.
The 1956 permission was duly implemented by the carrying out of works of extraction of clay and associated minerals from parts of the Campions Wood site, including part of the Area of Overlap. In the course of these works a seam of coal was encountered, which hindered further extraction of clay. In 1987 the NCB applied for, and was granted, planning permission (that is to say, the 1987 permission) to extract coal by opencast methods from the Streets Lane site, including the Area of Overlap. In 1989 the NCB acquired, by virtue of a Compulsory Rights Order, those parts of the Area of Overlap which it did not already own, and commenced to extract coal by opencast mining from the Area of Overlap. Coaling on the Streets Lane site (including the Area of Overlap) was completed by 1993, and by 1999 the entire site had been fully restored in accordance with conditions to that effect contained in the 1987 permission.
On 1 November 1995 the Environment Act 1995 ("the 1995 Act") came into force. Under Schedule 13 to the 1995 Act local mineral planning authorities were required to prepare, by 31 January 1996, a "first list" of mineral sites in their area, including "active Phase 1" sites, that is to say, sites with the benefit of a minerals planning permission granted between 30 June 1948 and 31 March 1969 (disregarding sites in special areas) and which had been worked to "any substantial extent" between 22 February 1982 and 6 June 1995. Staffordshire County Council ("the Council") included in its "first list" as an active Phase I site the Campions Wood site, but excluding the Area of Overlap. The effect of that exclusion, if maintained, would have been that the 1956 permission would cease to be operative in relation to the Area of Overlap. Accordingly in April 1996 application was made on behalf of the appellants for the inclusion of the Area of Overlap in the "first list". The Council rejected that application, on the footing that the grant of the 1987 permission, its implementation, and the restoration of the Streets Lane site (including the Area of Overlap), had rendered the rights granted by the 1956 permission incapable of exercise in the Area of Overlap.
This led in due course to the issue by the Council, on 21 August 1996, of the originating summons in the present proceedings. The originating summons joins the appellants as defendants and seeks a declaration that the 1956 permission does not authorise the excavation of clay and other minerals on land the subject of the 1987 permission, that is to say on the Area of Overlap. The originating summons also seeks declaratory relief in relation to the requirements of Schedule 13 of the 1995 Act, but it is accepted that this further relief is consequential on the first declaration sought. By an order dated 14 May 2001 His Honour Judge Boggis QC, sitting in the Chancery Division, Birmingham District Registry, granted the relief sought on the originating summons. He granted the appellants permission to appeal, and they now appeal.
I must now turn to the 1956 permission and to the 1987 permission in more detail.
The 1956 permission permits the excavation of clay and other minerals, subject to 14 conditions. The reason for the imposition of the conditions is expressed to be: "To safeguard the amenities of the area and to protect the interests of the users of the highway." Condition 2 provides that the permission shall expire when the site is worked out and when the restoration referred to in condition 14 has been carried out (neither of which events has happened). It is common ground that, by virtue of paragraph 1(5) of the Fifth Schedule to the Town and Country Planning Act 1990 ("the 1990 Act"), subject to earlier expiry on the fulfilment of condition 2, the 1996 permission will not expire until 2042. Condition 14 is in the following terms (so far as material):
"When the extraction of the minerals referred to in this permission is discontinued on the site,
…
(b)Waste material shall be replaced in the excavated area and the ground shall be treated so as to avoid any harsh break of gradient and so as to conform as nearly as possible with the contours of the adjoining areas. Soil capable of promoting plant growth shall be spread over the excavated area. The whole of the work to be carried out to the reasonable satisfaction of the Local Planning Authority."
The 1987 permission permits (so far as material) "the winning and working of coal by opencast methods, coal preparation and despatch and associated road and service diversions, followed by restoration to agriculture". It is subject to 32 conditions. Condition iii provides that all permitted operations shall be complete not later than 6 years from the date of the permission. Condition xxi provides that the site is to be progressively restored in accordance with a scheme to be agreed with the Council, and it sets out a number of features which are to be included in such a scheme. Subparagraph h. of condition xxi provides that the condition shall not operate so as to provide for the restoration of the Campions Wood site out of the sequence of the general phasing of restoration as illustrated in certain specified drawings. Conditions xxii, xxiii, xxiv and xxvi are in the following terms:
"xxii. an aftercare scheme requiring that such steps as may be necessary to bring each phase of the land restored under condition xxi preceding to the required standard for use for agriculture (ie to restore its physical characteristics so far as it is practicable to do so, to what they were when it was last used for agriculture) shall be submitted for the approval of the Mineral Planning Authority not later than 6 months from the date of this permission;
xxiii. the submitted aftercare scheme shall specify in relation to each phase the steps to be taken, and the periods during which they are to be taken;
xxii. subject to condition xxv following, aftercare of the site shall be carried out in accordance with the aftercare scheme as approved by the Mineral Planning Authority.
…
xxvi. on completion of the restoration of the land, the public rights of way crossing the site which are suspended during the opencast operations shall be reinstated on their original alignments, or such other alignments as may be agreed by the Mineral Planning Authority and to a condition not less serviceable than at the commencement of the operations."
The NCB duly complied with all the conditions attached to the 1987 permission. Its mining operations were completed within the stipulated period of 6 years, and following such completion the entirety of the Streets Lane site (including the Area of Overlap) was restored in accordance with a detailed "Restoration Brief" drawn up in consultation with the Council. The NCB also complied with its obligations in relation to the "aftercare" of the site. The process of restoration and aftercare continued from 1991 to 1999.
It is agreed for the purposes of the present proceedings that there are deposits of clay and associated minerals in the Area of Overlap which it is practicable and viable to extract. The issue, however, is whether the 1956 permission is still extant in so far as it applies to the Area of Overlap, given what has been done in implementation of the 1987 permission, and in particular the completion of the process of restoration and aftercare in relation to the Area of Overlap.
Before turning to the judgment, and to the arguments which have been addressed to us on this appeal (arguments which are substantially the same as those which were addressed to the judge), I refer first to the relevant statutory provisions (all of...
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