Thomas David (Porthcawl) Ltd v Penybont Rural District Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE STEPHENSON
Judgment Date05 October 1972
Judgment citation (vLex)[1972] EWCA Civ J1005-1
Date05 October 1972

[1972] EWCA Civ J1005-1

In The Supreme Court of Judicature

Court of Appeal

Appeal from order of the Divisional Court of the Queen's Bench Division of the High Court of Justice dated 13th December, 1971.

Before

The Master of the Rolls (Lord Denning)

Lord Justice Edmund Davies

Lord Justice Stephenson

Between:
Thomas David (Porthcawl) Limited
and
The Trustees of Merthyr Mawr Estates
Appellants
and
Penybont Rural District Council
and
Glamorgan County Council
and
The Secretary of State for Wales
Respondents

Mr. DOUGLES FRANK Q.C., and Mr. J. SULLIVAN (instructed by Messrs. Collyer-Bristow & Co., agents for Messrs. Cox & Cameron of Port Talbot) appeared on behalf of the Appellants.

Mr. IAIN GLIDEWELL, Q.C., and Mr. NICHOLAS BRATZA; (instructed by the Solicitor, Department of the Environment) appeared or behalf of the Respondents.

THE MASTER OF THE ROLLS
1

We are here concerned with the excavation of sand and gravel from a stretch of land beside the sea not far from Porthcawl in South Wales. Hard by is the village of Merthyr Mawr. The land is mostly sand dunes covered with grass. It is of scientific interest to geologists. It is owned by the trustees of the Merthyr Mawr Estates, but they have granted a licence to Thomas David (Porthcawl) Ltd. to excavate there. Sand and gravel have been excavated in these parts for many years. Out since the war planning permission has been necessary in 1949 permission was given to excavate a long stretch by the foreshore. But Thomas David (Porthcawl) Ltd. have gone outside the permission. They have excavated two areas coloured pink on a plan. These two areas are about half a mile apart. They are roughly circular an about 200 or 400 yards in diameter respectively Thomas David have never sough" or been given planning permission for those two pink areas.

2

On 17th November 1966 the planning authority, the Glamergan County Council, issued an enforcement notice against Thomas David. But they did not confine it to the two pink areas. They made a plan and marked out a big area triangular surrounded by a red line. It was about a wile long and half a mile wide. It included the two pink areas as small islands within the big area. The enforcement notice served on Thomas David was in these terms (1) You are the occupier of the land delineated on the plan and surrounded by a pink line. That was the big triangular area a mile long to half a mile wide.

3

(3) It appears to the Council that the said land has been developed by the carrying out thereon of engineering operations, namely the extraction of sand and gravel from part of the said land bein that coloured pink. That was the two smaller circular areas, about 200 and 400 yards in diameter, enclosedwithin the big area.

4

"(5) Now therefore the Council hereby require you to take the following steps,

5

(1) Discontinue the extraction and removal of sand and gravel from any part of the said land" that is, from any part of the big area surrounded by the red line.

6

(2) Restore as far as is practicable, the land coloured pink on the said plan to its condition before the said development took place. That is, restore the smaller circular areas.

7

Thomas David challenged the validity of that enforcement notice. They appealed to the Minister. He ordered an inquiry. It was held in October 1970. The Minister gave his decision in May 1971. Now nearly six years have passed since the enforcement notice was served. We are told that this delay was not the fault of Thomas David. But nevertheless Thomas David have meanwhile all through these six years been excavating sand and gravel on as- extended scale from parts within the big area surrounded by the red line. The Inspector found that, on the planning merits the excavation should be stomped. He said"only in circumstances of fire national need would extraction be justified at the obvious expense of the degradation and spoliation of such an attractive coastal area of peaceful scenic beauty, and of such special scientific interest. The inordinate delay in hearin the appeal has resulted in considerable avoidable inroads into the "- eastern area in particular, and in operations in depth which are seriously prejudicial to the amenities of the locality and most undesirable."

8

At the hearin it became clear that there was no point in restoring the excavations to the state in which they were before. There is no need to fill them up. It is much better for natureto take its course and let them be overgrown with grass.

9

So the question remained only as to the requirement that the company were to "discontinue the extraction and removal of sand and gravel" from the big area surrounded by a red line on the plans. The Minister upheld the enforcement notice. Thomas David appealed to the Divisional Court on two points of law which they have taken again before us.

10

The first point is the extent of the land covered by the enforcement notice. It was all the big triangular area, one mile long and half a mile wide, surrounded on the plan by a red line. Thomas David said that was wrong. The enforcement notice, they said, should hove been contined to the small areas coloured pink which were patches within the big area. Those were the two areas which had actually been worked by Thomas David us to the time in 1960 when the enforcement notice was served. Thomas David needed that there might be ancillary 'work included, but that it was wrong to issue a notice for a great big area, much of which had never been worked.

11

On this point I think the important question is what is the planning unit? That is what we said in G. Percy Frentham Ltd. v. Gloucestershire County Council 1966 1 All. E.R. 701 and it was applied recently in Britt v. Secretary of State 1972 1 W.L.R. 1207. In this case I think the planning unit is not confined to the two small areas actually worked. It extends to the whole area which may be regarded as suitable for excavation by the developers - if they can get planning permission for it. In this case it is sufficiently designated by the big area surrounded by the red line. I say this for these reasons:- (l) -The company has a licence which covers not only this big area but also a considerable area beyond it. (2) the company, at the hearingbefore the Inspector, claimed that they had a right to excavate on all the big area surrounded by the red line. (3) The company have themselves, since the enforcement notice, extended their operations far beyond the small areas coloured pink and have encroached considerably into the big area surrounded by the red line. It is true that the red line is only a very rough and ready line. It is only a line on a map. There are no fences. There is no curtilege. It may include some parts which are not workable such as those called the Pools. But that does not matter. The whole area is the planning unit. Suppose there...

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