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URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/644.html
Cite as: [1999] EWHC Admin 644

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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


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TARMAC MATERIALS LTD

-v-

SECRETARY OF STATE FOR THE ENVIRONMENT

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(Handed Down Transcript of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel: 0171 404 1400
Official Shorthand Writers to the Court)

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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.


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J U D G M E N T
(As Approved by the Court )

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4. Crown Copyright






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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