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TARMAC MATERIALS LTD v. SECRETARY OF STATE FOR ENVIRONMENT [1999] EWHC Admin 644 (6th July, 1999)
IN
THE HIGH COURT OF JUSTICE
QUEEN'S
BENCH DIVISION
(CROWN
OFFICE LIST)
Royal
Courts of Justice
The
Strand
Tuesday
6th July 1999
B
e f o r e:
MR
JUSTICE JACKSON
-
- - - - -
TARMAC
MATERIALS LTD
-v-
SECRETARY
OF STATE FOR THE ENVIRONMENT
-
- - - - -
(Handed
Down Transcript of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel:
0171 404 1400
Official
Shorthand Writers to the Court)
-
- - - - -
1. MR
M KINGSTON QC (MR I DOVE) (Instructed by Wragge & Co., Birmingham, B3 2AS)
appeared on behalf of the Applicant.
2. MR
C KATKOWSKI QC (Instructed by Treasury Solicitors) appeared on behalf of the
First Respondent.
3. MR
B SEFI (Instructed by Buckinghamshire County Council) appeared on behalf of the
Second Respondent.
-
- - - - -
J
U D G M E N T
(As
Approved by the Court
)
-
- - - - -
JUDGMENT
MR
JUSTICE JACKSON:
5. This
judgment is in six parts:
1. Introduction.
2. The
facts.
3. The
present proceedings.
4. The
validity and effect of condition 4 of the 1952 planning permission.
5. The
effect of the section 53 determination and events in 1986.
6. Conclusion.
1.
INTRODUCTION
1.1
This is an application by Tarmac Heavy Building Materials UK Limited
("Tarmac") for an order that the decision of the first respondent ("the
Secretary of State") contained in a letter dated 30th October 1997 ("the
decision letter") be quashed. The decision letter was written by Mr Alan
Langton, an inspector appointed by the Secretary of State to determine Tarmac's
appeal against an enforcement notice issued by the second respondent ("the
County Council").
1.2
Although various companies in the Tarmac group have been involved with the
site the subject of these proceedings, nothing turns upon the distinction
between those companies: see paragraphs 10 to 21 of the decision letter. In
this judgment I shall refer to the applicant and its related companies as
"Tarmac".
2.
THE FACTS
2.1
Ownership.
The Randall family are and have been for many years the freehold owners of
Westhorpe Farm, Little Marlow, Buckinghamshire, to which I shall refer as "the
site". Various companies have held leases of the site or parts of the site,
and have carried on the activities with which this court is concerned.
2.2
Concrete
production.
At some time before 1948 (the precise date is uncertain) the production of
ready mixed concrete started to be carried out on part of the site. Successive
lessees of that part of the site have continued to carry out concrete
production there in subsequent years. The first and second respondents now
seek to bring that activity to an end, in reliance upon an enforcement notice
to which I shall return later in this judgment.
2.3
Mineral
extraction.
A second activity which has been carried out on the site for many years is
mineral extraction. The date when this started is unknown. Mineral extraction
has extended over large areas of the site, leaving three substantial lakes (now
used for recreational purposes) and various backfilled areas. Most of the
minerals had been extracted by the mid 1980's, but some mineral extraction
continued thereafter.
2.4
The
position in 1948.
On 1st July 1948 the modern system of planning control came into force. This
was introduced by the Town and Country Planning Act 1947. During 1948 the
Randall family and their lessees, Marlow Sand and Gravel Ltd, applied for
planning permission under the (then) new Act to excavate sand and gravel from
the site. Nobody made any application for planning permission in respect of
concrete production, which was then being carried on by another lessee, J Smith
& Sons (Walters Ash) Ltd. It is common ground that this was an established
activity on site before the "appointed day" (1st July 1948) and as such did not
require planning permission: see section 23 (2) of the Town and Country
Planning Act 1971. (My own research since the conclusion of argument suggests
that the relevant provision in 1948 was section 12 (5) (a) of the 1947 Act.)
2.5
The
1952 planning permission.
The application launched in 1948 proceeded slowly. On 4th October 1950 it was
superseded by a revised application. On 29th September 1952 the
Buckinghamshire County Council (the second respondent) granted planning
permission for sand and gravel extraction in accordance with the final
application. There were seven conditions attached to the planning permission.
Condition 4 reads as follows:
"The
existing plant and equipment shall not be moved from its present position
without the consent of the Local Planning Authority, and upon the completion of
working shall, together with all buildings, huts or other structures on the
site and all gravel and other materials about the site, except where expressly
permitted to remain by the Local Planning Authority, be removed from the site
and the land covered with sufficient top soil to ensure natural growth and
cultivation."
6. It
should be noted that, although condition 4 is not explicit, it is wide enough
to embrace not only the plant and equipment used for mineral extraction, but
also the batching plant used for concrete production. The plan which was
annexed to the planning permission showed the concrete batching plant by means
of three small rectangles in a discrete area towards the centre of the site.
Thus condition 4, on its wider reading, required a company (different from the
applicants for planning permission) at some future date to discontinue an
activity which it was otherwise entitled to carry on for ever.
2.6
Events
in the early 1980's.
These are set out in paragraphs 5 to 7 of the decision letter. Suffice it to
say that in 1982 Marlow Sand and Gravel Company Ltd left and R. W. Dodds &
Son took over the mineral extraction. In 1983 J. Smith & Sons (Walters
Ash) Ltd left and Blue Mix Concrete (Marlow) Ltd took over the concrete
production.
2.7
The
arrival of Tarmac in 1986.
In 1986 Blue Mix Concrete (Marlow) Ltd left. Tarmac acquired the concrete
batching plant and a lease of that part of the site on which the batching plant
stood. Tarmac noted that the concrete batching plant was some 39 years old and
desired to replace it with more modern plant.
2.8
The
determination under section 53.
By letter dated 14th May 1986 Tarmac sought from the county planning officer
of the Buckinghamshire County Council pursuant to section 53 of the Town and
Country Planning Act 1971 a determination of the question whether planning
permission was required for the replacement of the concrete batching plant. By
letter dated 3rd June 1986 the county planning officer responded to that
request as follows:
"I
hereby determine that your proposals involve development which is permitted by
class VIII of Schedule 1 of the Town and Country Planning General Development
Order 1977.
For
the avoidance of doubt the County Council regards the existing plant, and any
replacement permitted under the General Development Order, as ancillary to the
adjoining sand and gravel workings and permitted under planning permission
number WR/165/48. The plant is therefore subject to condition 4 of that
consent."
2.9
Tarmac's
production of concrete after June 1986.
Pursuant to the County Council's determination of June 1986, Tarmac installed
new concrete batching plant in replacement of the old plant. Tarmac thereafter
used their new plant to produce concrete. Tarmac obtained all aggregate which
was needed for making concrete from outside sources. They made no use of the
sand and gravel extracted from the site immediately surrounding their plant
(see decision letter paragraph 23).
2.10
The
enforcement notice.
The extraction of sand and gravel from the site came to an end on a date which
has not been established, but which was before 19th December 1996. Accordingly
condition 4 of the 1952 planning permission came into operation. The County
Council took the view (quite consistently with their earlier correspondence)
that the condition applied to Tarmac's concrete batching plant, as well as to
the plant on site which had been used in relation to mineral extraction.
Tarmac took a different view and continued to operate its batching plant. On
19th December 1996 the County Council served upon Tarmac an enforcement notice
requiring (in effect) the removal of the concrete batching plant, followed by a
restoration of the land leased by Tarmac to agricultural land.
2.11
The
appeal against the enforcement notice.
Tarmac appealed against the enforcement notice. The Secretary of State
appointed an Inspector, Mr Alan Langton, to conduct an inquiry into the appeal.
The Inspector conducted the inquiry during June and July 1997. He inspected
the site on two occasions. He received oral and documentary evidence. On 30th
October 1997, the Inspector issued the decision letter, in which (subject to
variations which are immaterial for present purposes) he upheld the enforcement
notice.
3.
THE PRESENT PROCEEDINGS
3.1
By its notice of motion dated 25th February 1998 Tarmac seeks an order
quashing the decision letter, essentially on two grounds. First, it is said
that condition 4 of the 1952 planning permission is and always has been
invalid, at least in so far as it embraces the concrete batching plant.
Secondly, it is said that condition 4 has no application to the new plant
installed in 1986 pursuant to the General Development Order 1977 and the
section 53 determination. In respect of both these matters it is said that the
Inspector made errors such that this court should intervene.
4.
THE VALIDITY AND EFFECT OF CONDITION 4 OF THE 1952 PLANNING PERMISSION
4.1
The
statutory power.
The County Council's power to impose conditions was conferred by section 14 of
the 1947 Act. Although this provision was only briefly referred to at the
hearing (during the course of replies), to my mind it is crucial. Section 14
provided as follows:
"(1)
Subject to the provisions of this and the next following section, where
application is made to the local planning authority for permission to develop
land, that authority may grant permission either unconditionally or subject to
such conditions as they think fit, or may refuse permission; ...
(2)
Without prejudice to the generality of the foregoing subsection, conditions may
be imposed on the grant of permission to develop land thereunder -
(a)
for regulating the development or use of any land under the control of the
applicant (whether or not it is land in respect of which the application was
made) or requiring the carrying out of works on any such land, so far as
appears to the local planning authority to be expedient for the purposes of or
in connection with the development authorised by the permission;"
4.2
This provision has survived substantially unscathed in subsequent planning
Acts. It now appears as sections 70 (1) (a) and 72 (1) (a) of the Town and
Country Planning Act 1990. A body of case law has grown up over the last fifty
years as to how the power to impose conditions may be exercised.
4.3
In
Pyx
Granite Co Ltd v Ministry of Housing and Local Government
[1958] 1 QB 554 at 572 Lord Denning said:
"The
principles to be applied are not, I think, in doubt. Although the planning
authorities are given very wide powers to impose "such conditions as they think
fit", nevertheless the law says that those conditions, to be valid, must fairly
and reasonably relate to the permitted development. The planning authority are
not at liberty to use their powers for an ulterior object, however desirable
that object may seem to them to be in the public interest."
7. The
actual decision of the Court of Appeal in
Pyx
Granite
was reversed by the House of Lords: see [1960] AC 260. Lord Denning's
statement of principle, however, was not called into question. Indeed that
statement of principle has been endorsed by the House of Lords on three
subsequent occasions, most recently in
Newbury
District Council v Secretary of State for the Environment
[1981] AC 578.
4.4
In
Newbury
District Council
the second appellant, "ISR", acquired two wartime hangars and sought planning
permission to use them for the storage of synthetic rubber. Planning
permission was granted for a limited period, subject to the condition that the
hangars were removed after ten years. After expiry of the ten years the
council served enforcement notices, requiring the removal of the hangars. ISR
challenged the enforcement notices. The Secretary of State directed a local
inquiry. The inspector concluded that ISR had never needed planning
permission, since storage was an established use when ISR acquired the hangars.
The inspector also concluded that, in any event, the condition requiring
removal was invalid since it did not fairly and reasonably relate to the
development being permitted [viz what was erroneously thought to be a change of
use to storage]. The Secretary of State adopted the inspector's views and
quashed the enforcement notices. The council challenged the Secretary of
State's decision. The Secretary of State's decision was upheld by the
Divisional Court, set aside by the Court of Appeal, but reinstated by the House
of Lords. After this exhaustive analysis by eleven different judges, the
enforcement notices ultimately failed because ISR were entitled to use the
hangars for storage without relying upon any planning permission.
4.5
Although
obiter,
all five members of the House of Lords expressed the further view that if the
planning permission had been operative, then the conclusion of both the
inspector and the Secretary of State that the removal condition was invalid
could not be challenged. This matter was fully argued. Their lordships'
reasoning on the question is set out at some length. For all practical
purposes, this reasoning is binding upon me. Indeed the Encyclopedia of
Planning Law and Practice (Sweet & Maxwell, loose leaf, current release
1999) treats
Newbury
District Council
as the leading case in this field, without even acknowledging that the
invalidity issue was
obiter.
4.6
The House of Lords identified three tests for the validity of a condition
attached to planning permission. (i) The condition must fulfil a planning
purpose. (ii) It must fairly and reasonably relate to the development being
permitted. (iii) The condition must not be unreasonable in the
Wednesbury
sense. The condition in the
Newbury
case satisfied tests (i) and (iii), but failed test (ii). This neatly
illustrates that test (ii) is an
additional
hurdle for conditions which fulfil a desirable planning purpose and which are,
in themselves, perfectly reasonable.
4.7
The
inspector's reasoning.
The inspector's reasoning is set out in paragraphs 31 to 35 of his decision
letter:
“
31. In my view, there can be little doubt that the batching operations should
not be viewed as having ever been ancillary to the mineral working. Extraction
could have proceeded without the plant; the plant could have operated with
materials brought to it as occurred over more recent years.
Hobbs
is authority on this, with support in submitted appeal decisions.
32.
However, your initial suggestion that the batching could be subject to
condition 4 only were it an ancillary activity was not sustained in closing
submissions.
Kingston-upon-Thames
is contrary authority supported in subsequent judgments. The question is not
whether the batching plant in 1952 was lawful - on the evidence it was - nor
whether it was ancillary to the mineral extraction - it was not - but whether
in seeking its removal condition 4 fairly and reasonably related to the
permission then being granted for sand and gravel extraction. Policy guidance
in MPG2 cannot be determinative on this.
33.
The plant was within the 1952 application site. It was shown on the working
areas plan in similar form to the screening plant. The applicant, MSG, and the
plant operators, JS&S, were separate companies but with directors and
shareholders largely or wholly in common. Inasmuch as JS&S occupied part
of the site they were an interested party to the application. There is little
doubt that at the time, and for some years after, the plant received its
aggregates from the quarry. The planning authority were then permitting
substantial mineral extraction which would continue over several decades and be
certain to cause some degree of visual intrusion, to put it no stronger, as
well as noise, dust and traffic
34.
I see nothing inherently unfair if they found those foreseeable harmful
impacts acceptable only when weighed not only against the need for minerals but
also against the eventual benefit of a fully cleared site. The reasons for the
conditions (confirmed later) included ensuring restoration to agriculture and
preserving local amenity. Dismantling a concrete batching plant would not
necessarily result in its destruction as, for example, the demolition of a
masonry building. No objection appears to have been made against implementing
the permission subject to condition 4. In all the particular circumstances, I
conclude that as a matter of fact and degree inclusion of the batching plant
within the remit of condition 4 related fairly and reasonably to the permission
for sand and gravel extraction.
35.
There is no suggestion that condition 4 fails any of the other normal tests
for a valid planning condition, and I conclude that it was validly imposed to
include the batching plant. There has been no express permission to retain
that plant; mineral extraction has ceased; the plant remains. Accordingly,
again as a matter of fact and degree, at some time there has been a breach of
planning control in the terms alleged by the notice, and the appeal fails on
ground (c)”.
4.8
The
parties' contentions.
The inspector's reasoning and conclusion were the subject of detailed scrutiny
at the hearing. Mr Kingston QC for Tarmac submitted that the reasoning was
flawed and that the conclusion could not be supported. Mr Katkowski QC for the
Secretary of State submitted that, on the evidence before him, the inspector
could have decided the matter
either
way; and that the inspector's decision could not be challenged, whichever way
it had gone. Mr Sefi for the County Council submitted that, on the evidence
before him, the inspector could
only
find that condition 4 did fairly and reasonably relate to the permitted
development, and that any alternative conclusion would have been open to
challenge. Thus the full range of possible analyses have been clearly and
helpfully deployed by counsel.
4.9
My
conclusion.
The judge-made rule that a condition must fairly and reasonably relate to the
permitted development derives from the wording of section 14 (2) (a) of the
1947 Act, viz that the condition must "appear to the local planning authority
to be expedient for the purposes of or in connection with the development
authorised by the permission".
4.10
I begin by applying the words of the statute to the facts of the case. It no
doubt appeared "expedient" to the County Council that the concrete making plant
(which had a right to remain there indefinitely under the 1947 Act) should be
removed in due course. There were good environmental reasons for this. But I
do not see how the expediency of eventually removing the concrete making plant
could possibly be "for the purposes of or in connection with the development
being authorised", viz excavation of sand and gravel.
4.11
Lord Denning's helpful formulation of (or perhaps gloss upon) the statutory
requirement in
Pyx
Granite
is now a firmly established part of the law. It does not, however, avail the
County Council. The requirement that the concrete making plant should
eventually be removed did not relate fairly and reasonably, or indeed at all,
to the extraction of sand and gravel from Westhorpe Farm.
4.12
In
Newbury
the House of Lords recognised that only in exceptional cases could a condition
requiring the removal of pre-existing buildings satisfy this requirement,
even
when those buildings were the subject of the planning permission being granted
.
See Viscount Dilhorne (with whom Lord Edmund-Davies agreed) at 600F-G. The
same view is implicit in the speech of Lord Fraser at 609 and in the speech of
Lord Scarman at 620. In the present case, by contrast, condition 4 required
the removal of pre-existing structures, which were
not
the subject of the planning permission being granted. Indeed the condition
required action on the part of a lessee from the Randall family, who was
different from the lessee seeking planning permission to extract sand and
gravel. It may be that in 1952 the two lessees had "directors or shareholders
largely or wholly in common" (decision letter paragraph 33), but this was not
bound to be so always. Condition 4 was one which would bite at some distant
future date, when there may well not be (and as it turned out there was not)
any connection between the lessee extracting minerals and the lessee producing
concrete. The House of Lords' reasoning in
Newbury
reinforces my view that it cannot possibly be said that condition 4 fairly and
reasonably related to the planning permission being granted in 1952.
4.13
I have considerable sympathy with the view which the inspector formed as to
the inherent fairness of condition 4 (see paragraph 34 of the decision letter).
But I disagree with the inspector that these considerations can have any
bearing upon whether condition 4 fairly and reasonably related to the permitted
development. The word "fairly" in Lord Denning's test is used in a different
sense from the inherent unfairness discussed by the inspector.
4.14
Mr Katkowski rightly stressed that it is not for me to trespass into the
territory of the inspector. Matters of weight and matters of planning judgment
are exclusively for the inspector. See
Tesco
Stores Ltd v Secretary of State for the Environment
[1995] 1 WLR 759 at 780 F-C (per Lord Hoffmann). The inspector's decision can
only be said to be
Wednesbury
unreasonable or perverse if it was beyond the range of responses open to a
reasonable decision-maker in his position. See the submission of Mr Pannick QC
in
R
v Ministry of Defence ex parte Smith
[1996] QB 517, which was accepted by the Master of the Rolls at 554 F-G, by
Henry LJ at 563 and by Thorpe LJ at 565A-B. Whilst I accept all these
restrictions on the role of the Court, nevertheless the inspector's conclusion
in paragraph 35 of the decision letter cannot stand. It was not open to the
inspector to find that condition 4 on its wider reading fell within the County
Council's powers under section 14 of the Town and Country Planning Act 1947 or
that it fairly and reasonably related to the development being permitted.
4.15
In these circumstances there could be argument as to whether condition 4 falls
in its entirety, or whether it should be read more narrowly as applying only to
plant on site used for sand and gravel extraction. A condition with this
narrower effect would have been lawful. I do not need to decide this question.
On either approach, condition 4 cannot oblige Tarmac to remove their concrete
making plant from site.
5.
THE EFFECT OF THE SECTION 53 DETERMINATION AND EVENTS IN 1986
5.1
A determination pursuant to section 53 of the Town and Country Planning Act
1971 (the relevant provision which was in force in 1986) is final and
irrevocable. It is as good as, although not the same as, a planning
permission. See the decision of the Court of Appeal in
Wells
v Minister of Housing and Local Government
[1967] 1 WLR 1000. The decision in
Wells
related to section 43 of the Town and Country planning Act 1962. Section 43 of
the 1962 Act is in the same terms as section 53 of the 1971 Act.
5.2
Accordingly, the county planning officer's determination in June 1986 that
Tarmac's installation of replacement plant was permitted by class 8 of schedule
1 to the Town and Country Planning General Development Order 1977 is final and
is binding upon the County Council. Mr Sefi sought to challenge the
correctness of that determination in paragraph 19 of his skeleton argument, but
Mr Katkowski did not associate his client with that challenge. In my judgment
it is not open to either respondent to challenge the determination made
pursuant to section 53.
5.3
The determination made pursuant to section 53 is contained in the first
sentence which is quoted in paragraph 2.8 above.
5.4
The paragraph beginning "For the avoidance of doubt" is not part of the
determination pursuant to section 53. Furthermore, it is agreed by all parties
to this litigation that the paragraph contains an error, namely the assertion
that the concrete making plant was "ancillary to the adjoining sand and gravel
workings". In my judgment that paragraph is not binding upon anybody. The
stipulation by the county planning officer in June 1986 that any replacement
concrete making plant would be subject to condition 4 of the 1952 planning
permission was a stipulation of no legal effect. Indeed (somewhat to my
surprise) the county planning officer appears to take a similar view, since he
is now in private practice and acting as expert witness for Tarmac.
5.5
As a result the events of 1986 neither perpetuate nor give rise to an
obligation upon Tarmac to remove its concrete making plant.
5.6
In view of my earlier findings, it is not necessary to consider Tarmac's
further argument that, even if condition 4 governed the original concrete
making plant, it could not affect the replacement plant installed in 1986.
6.
CONCLUSION
6.1
For the reasons set out above, the inspector erred in law (a) in concluding
that condition 4 of the 1952 planning permission imposed an obligation upon
Tarmac to remove its concrete making plant and (b) in upholding the enforcement
notice (subject to minor variations). Accordingly the decision contained in
the decision letter must be quashed.
6.2
I am grateful to all counsel for guiding me so patiently through the (to them
familiar) labyrinth of planning legislation. I am also grateful for their
clear and helpful submissions.
8. MR
DOVE: My Lord, I appear today on behalf of the applicant. I have discussed the
matter of the order with my learned friends. My Lord, we would ask that an
order is made remitting the matter to the Secretary of State for him to
redetermine, firstly.
MR
JUSTICE JACKSON: Yes?
9. MR
DOVE: And secondly, that the first respondent pay the applicant's costs to be
subject to detailed assessment if not agreed. My Lord, I believe that my
learned friend may have a further application in relation to the matter.
10. MR
KATKOWSKI: My Lord, I cannot and do not resist the order that has been sought.
My Lord, I do have another application to make which is an application for
permission to appeal against my Lord's order. My Lord, I would simply----
11. MR
JUSTICE JACKSON: All I was going to say was these are difficult issues and I
take the view that if you wish to have leave to appeal you should have it.
12. MR
KATKOWSKI: Thank you very much.
13. MR
JUSTICE JACKSON: Mr Dove, you do not want to address me on leave to appeal, do
you?
14. MR
DOVE: My Lord, I have heard the court's view and I do not imagine I am going to
do much good by addressing you.
15. MR
SEFI: My Lord, I would like permission also.
16. MR
JUSTICE JACKSON: Yes. Leave to appeal to both respondents. Is there anything
else?
17. MR
KATKOWSKI: Not that we are aware of, my Lord, thank you very much.
© 1999 Crown Copyright
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