Payne v Caerphilly County Borough Council

LORD JUSTICE SCHIEMANN: I will ask Lord Justice Dyson to give the first judgment.

LORD JUSTICE DYSON: On 15 December 2000 Mr Payne made an application ("the application") under paragraph 9 of Schedule 13 to the Environment Act 1995 ("the Act") to the Caerphilly County Borough Council ("the Council") for approval of conditions in relation to two planning permissions. The first of these permissions had been granted to the National Coal Board on 30 March 1955 for proposed development described as "disposal of colliery rubbish". This permission was subject to a number of conditions which are not material for present purposes. The second permission was granted to a Mr Ludlow on 10 August 1961 for proposed development described as "removal of the tip". It, too, was subject to a number of conditions, the first of which was that "this consent shall extend for a period expiring on 31 December 1971". So far as material, the application was in these terms:

The Council's response was contained in a letter dated 19 December 2000, which included the following.

The precise relationship between the application site and the land that was subject of the two planning permissions is not entirely certain. It seems clear, however, that the sites that were the subject of the two permissions were close to each other, and were both situated within the envelope of the application site.

With minor amendments, I gratefully adopt the following summary of the relevant provisions of the Act which was given by the judge at paragraphs 5 to 8 of his judgment.

Mr Jarman QC, has advanced before this court a new point based on the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations (SI 1999 No.293) as amended by amending regulations that came into force on 15 November 2000. I shall refer to the relevant provisions of these regulations when I come to deal with Mr Jarman's submissions.

In short, Mr Payne's case before the judge was that the effect of the Council's response to the letter of 19 December 2000, interpreted in the light of paragraph (13)9 of Schedule 13 to the Act, was that the Council was to be treated as having determined that the conditions to which both the 1955 and the 1961 permissions were subject were those specified in the application of 15 December 2000.

(a) In relation to the 1955 permission the judge allowed Mr Payne's application for judicial review. He granted to Mr Payne a declaration that the Council was deemed to have determined that the 1955 permission was subject to the conditions proposed by him in his application of 15 December 2000. The judge gave permission to the Council to appeal on the ground that it had a realistic prospect of success in an area of uncharted territory.

(b) So far as the 1961 permission was concerned, the judge held that upon its true construction paragraph 9(1) does not apply to mineral planning permissions that are no longer extant, whether because development has not been commenced within the time limit, or because it is subject to a time limit for completion which has expired before the application is made under paragraph 9. Accordingly, the Council was entitled to reject the application in respect of the 1961 permission since it was no longer extant. The judge dismissed Mr Payne's application for judicial review of the decision of 19 December 2000 in so far as it related to the 1961 permission. Mr Payne sought permission from this court to appeal against this part of the judgment. We refused his application. Later in this judgment, I shall explain why I consider that he had no realistic prospect of overturning this part of the judgment.

On behalf of the Council, Mr Jarman submits that the judge was wrong to grant the declaration that he granted in relation to the 1955 permission for two main reasons. First, the application of 15 December 2000 was not a valid application at all, so that paragraph 9 to Schedule 13 to the Act was simply not engaged. The purported application was a nullity as regards the 1955 permission since it did not satisfy paragraph 9(2)(c) and/or (e) in that it included conditions that were not for a proper planning purpose and/or did not relate to the 1955 permission, since the uses mentioned in conditions 2 and 3 were outside the scope of what was contemplated by the 1955 permission, and were calculated to threaten rather than protect the environment. On that account they were not conditions which the Council could have imposed since they were not ones envisaged by paragraph 9.

Mr Jarman's second main submission accepts that the application was a valid application which did engage paragraph 9. But he relies on provisions of the regulations, whose effect he submits on the facts of this case was to disappply paragraph 9(9). I shall come to this in more detail after I have dealt with the other submissions.

Before I deal with Mr Jarman's first main submission, however, I should mention what was advanced as a principal submission before Sullivan J, but which he now relegates to a subsidiary status. This is the contention that the application was invalid because it did not accurately identify the mineral site to which it related as required by paragraph 9(2)(a). In my view this is not a good point. It is true that the plan attached to the application of 15 December 2000 did not identify the mineral site to which the 1955 permission related. But there was contained in the body of the application a reference to the 1955 permission by its date and code number (1722). Attached to the 1955 permission was a plan which showed the extent of the mineral site to which it relates. Paragraph 9(2)(a) requires the application to identify the mineral site to which is relate. Paragraph 1(2)(b) provides that a mineral site is land to which a relevant planning permission relates. Accordingly, the reference in the application to the 1955 permission was sufficient to identify the mineral site to which the application related so far as the 1955 permission was concerned. It identified the mineral site to which the application related as regards the conditions proposed in respect of the 1955 permission as being the land to which the 1955 planning permission related.

On receipt of the application in December 2000 the Council could have been in no doubt as to which part of the application site related to the 1955 permission. It is therefore not surprising that in her reply dated 19 December Mrs Amundsen, the Council Development Control Manager, did not say that she could not accept the application in relation to the 1955 permission because it did not identify the 1955 permission site. On the contrary, she said that the 1955 permission site was "included on the First List as a dormant site". She then went on to say that an application could be made to determine new conditions for the 1955 permission under paragraph 9, but not for the 1961 permission since that permission had not been included on the First List and had ceased to have effect.

It is unfortunate that paragraph 1 of the application of 15 December stated that the mineral site to which "this application relates" was that delineated and edged in red on the attached plan. That land included the sites relating to both the 1955 and 1961 permissions as well as other land. But if the application is read as a whole, and in the light of paragraph 9 of Schedule 13, it is clear that the application also identifies the mineral sites to which the 1955 and 1961 permissions relate. It would have been preferable if Mr Payne had made separate applications in relation to the two permissions; but I am in no doubt that that has been no breach of paragraph 92(a).

I turn to Mr Jarman's first main submission. He points out that the permitted development was the disposal of colliery rubbish, and no more. He says that condition 2 goes outside the scope of such development, because bricks, stone, concrete and builders rubble may derive from non-colliery sources: in other words they need not be colliery rubbish at all. The position is even more stark in relation to condition 3, which is that any of the materials on site may be processed by machinery or otherwise within the confines of the site and exported from the site after processing. The activity envisaged by condition 3 is completely different from the disposal of colliery rubbish by tipping it on the site. At paragraph 35 of his judgment the judge said that he was prepared to accept that:

I respectfully agree with every word of these two paragraphs of his judgment. Sullivan J did not advert specifically to condition 3 because it seems that the main thrust of the arguments in the court below was directed to condition 2 (see paragraph 20 of the judgment).

In my view, it is impossible to characterise the second and third conditions proposed by Mr Payne as so fundamentally changing the nature of the 1955 permission that they were not conditions within the meaning of paragraph 9 at all. It is not without significance that in her letter of 19 December, Mrs Amundsen did not refuse to deal with the application because the terms of the second and third conditions took the application outside the scope of paragraph 9 altogether. In my judgment the court should be slow to strike down as a nullity an application solely on the grounds that it proposes conditions which would extend the use permitted by the planning permission. Mr Jarman accepts that it would be going too far to treat as invalid, and therefore a nullity, an application simply on the grounds that it contains a proposed condition which is outside the scope of a permission. It is, he says, a question of fact and degree.

I agree with Sullivan J that it is only in an extreme case of departure that it may be possible to say that an application is not an application within the meaning of paragraph 9 at all. It is important that there should be a reasonable degree of certainty as to whether what purports to be a paragraph 9 application is indeed such an application, rather than a nullity that can be ignored by the mineral planning authority. Authorities should not be encouraged to take the view that they can simply ignore applications which contain exorbitant conditions to which they take objection. Their function of protecting the environment against applications which contain such conditions can, and ordinarily should, be performed by responding to applications and dealing with them on their merits, and by rejecting conditions which they consider to be objectionable in appropriate cases.

In support of his submission, Mr Jarman referred to R v North Linconshire County Council ex parte Horticultural and Garden Sales (Humberside) Ltd [1997] 76 P&CR 363, 368, where Lightman J said that the two critical features of Schedule 13 of the Act were (a) to secure a definitive list of old, mineral planning permissions continuing to subsist, and (b) to ensure that there are attached to them conditions which adequately protect the environment during the operational period of the site.

I would not quarrel with this summary of the critical features of the schedule. The means chosen by Parliament to achieve the second of these objectives is to vest in mineral planning authorities a wide discretion under paragraph 9(6) to determine the conditions to which each relevant planning permission is to be subject. Parliament could have chosen to control the conditions to which a planning control is subject in a different way. For example, it could have provided that an application shall not be entertained by a mineral planning authority unless the conditions proposed by an applicant meet certain specified criteria. But it did not do so. The observations of Lightman J should not be used to construe the words of paragraph 9 as having a meaning which they plainly do not have, or to treat what on its face is a valid, albeit objectionable, application, as if it were not an application at all.

I turn to Mr Jarman's second main submission. The 1999 regulations came into force on 15 March 1999 to give effect to Council Directive 85/337/EEC as amended by Directive 97/11/EC. These Directives are broadly concerned with environmental impact assessments. The 1999 Regulations were amended by regulations which came into force on 15 November 2000. I shall refer to the regulations in their amended form. So far as material they provide:

It is also necessary to refer to Schedule 2 itself. The heading to the schedule is in these terms:

Mr Jarman submits that the development of colliery rubbish disposal permitted by the 1955 permission falls within the description of "Underground mining" or "Installations for the disposal of waste" in column 1 of the table. It is common ground that the Council has not adopted a screening opinion and the Secretary of State has not made a screening direction to the effect that the ROMP development in question is not an EIA development. Accordingly, Mr Jarman submits, by reason of Regulation 26A(22)(a), paragraph 9 of Schedule 13 to the Act did not have the effect of treating the Council as having determined that the conditions to which the 1955 permission was subject were those contained in the application of 15 December 2000.

In my judgment, this submission must be rejected because disposal of colliery rubbish does not come within either of the two descriptions relied on by Mr Jarman. I do not consider that the tipping of colliery rubbish on a site can properly be described as the "carrying out of development to provide ... underground mining". It is something that is done after underground mining has been carried out and completed. It is wholly artificial to describe the tipping as being an element of, or ancillary to, underground mining. There is a further point. The colliery rubbish whose tipping is permitted by the 1955 permission may not necessarily emanate from the site on which the tipping is to be done at all. Indeed, Mr Payne told us that the mining had ceased on the 1955 permission site in the 1920s, and that the rubbish that has been tipped on it since 1955 is derived from a number of other sites. Once it is seen that there is no link between underground mining on the permission site and the tipping of colliery rubbish on that site, it becomes clear that the tipping of colliery rubbish on that site cannot be part of, or ancillary to, underground mining on that site. The tipping of colliery rubbish from other collieries on the permission site becomes no more part of underground mining on that site than would be the tipping of ordinary waste on it.

Nor I do consider that the disposal of the colliery rubbish is the provision of an installation for the disposal of waste within the meaning of item 11 of the table. No installation for disposal of waste has been provided, and none was proposed to be provided by the application. The reference to disposal by incineration gives a clue to what column 1 of item 11(b) is concerned with. It is concerned with the disposal (ie the reduction or destruction) of waste by means of an installation such as an incinerator. It is not concerned with the simple act of tipping waste on to a site. Item 11(b) should be contrasted with items 11(d) and (e) which are concerned with dumping or tipping. They are in these terms:

For all these reasons I would dismiss the Council's appeal in relation to the 1955 permission. The Council was not entitled simply to reject a valid application under paragraph 9(1) and treat it as of no effect. In the absence of notice of a decision upon the application within three months or such extended time as may be agreed between the parties, the Council was treated as having determined that the conditions were those specified in the application: see paragraph 9(9).

As the judge pointed out, paragraph 9(1) does not refer to extant relevant planning permission: it merely refers to "the relevant planning permissions". Does this mean that an applicant can compel a mineral planning authority to determine conditions in respect of a mineral planning permission which is no longer extant at the time of the application? The judge said no; and I agree with him. At paragraph 23 of the judgment, Sullivan J said this:

Mr Payne also relies on Part 1 to Schedule 5 to the Town and Country Planning Act 1990 which provides:

But these provisions cannot avail Mr Payne for the reasons given by the judge at paragraph 27 of his judgment in these terms:

I cannot improve on what the judge said in that paragraph. In my view Mr Payne's case on the 1961 permission is unarguable. It is for that reason that in my judgment it would have been wrong to grant him permission to appeal.

I would add that, having heard what Schiemann LJ has said, I agree with it.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE SCHIEMANN: I also agree, and only add that in relation to the 1955 permission nothing in the decision of this court is concerned to define further the area of the site which is covered by that permission. In order to discover that one must look back at the terms of the 1955 permission.