Mid Suffolk District Council v Clarke

I have before me a preliminary issue in proceedings where Mid Suffolk District Council (“the Council”), as local planning authority, are seeking a planning injunction pursuant to section 187B of the Town and Country Planning Act 1990 against John Edgar Clarke, the defendant. As the claim is presently formulated, the injunction which is sought would require him to cease the use of the land and buildings at Rookery Farm, Woolpit Road, Drinkstone, Suffolk (“the farm”) for the purpose of industrial rendering and/or the deposit or processing of waste.

It is agreed that the activity presently being carried on, namely the rendering of avian offal material, is an industrial use. The activity is taking place in a cooking plant on the farm, which was erected pursuant to a planning permission (Reference 882/98) granted by the Council on 25^th February 1999. The Council contends that the defendant does not have planning permission to use the cooking plant on the farm for an industrial use. The defendant maintains that, on a proper construction of the planning permission granted on 25^th February 1999, he is permitted to use the cooking plant for an industrial use, such as the present use, indeed the submission is to the effect that, so far as use is concerned, the permission granted is unrestricted and unconditional.

The Master ordered that the issue of the proper construction and scope of the planning permission 882/98 should be tried as a preliminary issue. There has been a long and eventful planning history in connection with the farm, but it is not necessary for me to go into every detail, but some parts of it are essential to a proper understanding of the latest episode, of which these proceedings form part.

Prior to September 2001 the defendant used the farm as a swill-fed pig fattening unit, finishing, at any one time, up to approximately 8,000 pigs housed in piggeries at the farm. The pigs were fed on waste material from local food processing factories which was brought to the farm in lorries and boiled on site in a cooking plant. As we shall see, the cooking plant used for this purpose, until planning permission was granted in February 1999 for a replacement cooking plant, formed part of a building, which still remains, but the replacement cooking plant was constructed close by following upon the demolition of some piggeries.

For many years the use of the cooking plant led to numerous complaints by local residents of odour nuisance, leading ultimately to the Council taking injunction proceedings. Those proceedings came on for trial in March 1999 and resulted on 19^th April 1999 in the defendant giving an unqualified undertaking not to cause a public nuisance at the farm after 31^st May 2000.

In the lead-up to the trial of the nuisance action, the defendant applied for planning permission to erect a replacement cooking plant. The supporting letter for the application referred to the litigation and stated that the defendant was: “making a further concerted effort to reduce the conflict [between neighbouring land users] by replacing the existing cooking plant with a new building as detailed in the enclosed application.” The intention was that the replacement cooking plant and its associated filter bed should resolve the problem of odour nuisance from the cooking process.

Permission having been granted, the replacement cooking plant was erected, but the foot and mouth disease outbreak in early 2001 intervened and new regulations prohibited the feeding of swill to pigs. As a result, the defendant ceased his pig fattening operation at the farm, the last pigs leaving in about June 2002. These events have led to the defendant continuing to accept waste material for processing and using the new cooking plant for what is acknowledged to be an industrial process. It is material to note that on this application the court is not concerned with any issue which might arise in connection with this waste disposal activity. Nor is the court concerned to consider any issue in connection with the product of the present operation. The case for the Council is that a material change of use has occurred from the use of the cooking plant in connection with agriculture to its unauthorised industrial use. For clarification, I should emphasise that the change of use does not arise from a different process being undertaken nor, as I have said, from the character of the material being cooked. The industrial use arises because the product from the cooking plant is, save for very small amounts which may be used as fertiliser on the farm, produced for the purpose of being distributed to locations away from the farm.

Although not much turns upon it, it has not always been the defendant’s belief that he had planning permission authorising the cooking plant to be put to industrial use. On 2^nd July 2001 he applied for planning permission to authorise what was acknowledged as a change of use of the cooking plant and ancillary filter bed to a rendering plant. That application was refused on 9^th January 2002. An appeal against the refusal was dismissed by a planning inspector on 1^st April 2003. The inspector concluded that the industrial rendering use was “clearly unacceptable”.

The defendant applied to challenge the inspector’s decision under section 288 of the 1990 Act on the ground that he had incorrectly determined that the lawful use of the farm was confined to:

“use of the cooking plant to produce organic fertiliser as an integral part of an agricultural enterprise involving arable [or] livestock farming”.

He contended that, on a correct interpretation of the planning permission, the use was not so restricted. The section 288 application was subsequently withdrawn, but the defendant has now raised the same issue in these proceedings by way of defence to the injunction which is claimed.

The planning permission (page 84) records the date of the application, 13^th October 1998, the date of registration, 14^th October 1998, and recites an amendment by letter dated 19^th January 1999 “with odour control proposals” and a letter dated 7^th January 1999 and drawing No. 244/01 received on 19^th November 1998. Below the address of the defendant and his agents, the following appears:

“Proposed development and location of the land: DEMOLITION OF EXISTING PIGGERY; ERECTION OF REPLACEMENT COOKING PLANT; CONSTRUCTION OF ANCILLARY FILTER BED. ROOKERY FARM, DRINKSTONE”.

The operative part of the permission commences below this entry. It appears as follows:

“The Council, as local planning authority, hereby give notice that PLANNING PERMISSION HAS BEEN GRANTED in accordance with the application particulars and plans submitted subject to the following conditions:-”

It is necessary only to refer to some of the conditions. Condition 2 required:

“No development shall commence until the following details have been submitted to and approved in writing by the Local Planning Authority.

a)

…

b)

odour abatement technology to be used,

c)

…

d)

…”

Condition 3 provided:

“Within one month of the new cooking plant being first brought into use the existing cooking plant shall cease operation and the cooking equipment shall be removed from the building”.

Mr Albutt, counsel for the defendant, submits that the terms of the permission are to be found in the short summary following the rubric, “the proposed development and location of the land”, which I have set out above. He submits that those words are plain on their face and have a sensible meaning to the reasonable reader. He submits, as a matter of principle, that the public should be able to rely upon the terms of the permission, as he has identified it, on this form of permission and, there being no ambiguity, no extrinsic aids are permissible to elaborate upon or restrict the wide and unrestricted terms of the permission.

In my judgment this argument is fundamentally misconceived. The whole case rests upon a contention that the only material part of the permission comprised the words, “erection of replacement cooking plant”, and that phrase, being capable of being given a sensible meaning, must be taken as having conferred unrestricted use of the cooking plant for any purpose to which it could properly be put. For the purposes of the defence to the injunction, he needed to submit no more than that there was no basis for contending that industrial use of the cooking plant was outwith the grant of permission.

In my judgment, the argument is fundamentally misconceived because Mr Albutt is not looking at the operative part of the grant of planning permission. He is looking only at the summary of the proposed development and its location. It is not legitimate to look at the description of the proposed development and then to assume, in a case where permission has been granted, that the permission extends to the proposed development as there described. In many cases, the proposed development may include, for example, items (a), (b), (c), (d) and permission may only be granted in the operative part of the permission for (a) and (b). Further, Mr Albutt could advance no submission which required the court to ignore the operative part of the permission which contains “the grant”, and its express terms including the statement that permission had been granted “in accordance with the application particulars and plans submitted…”.

The submission is also misconceived because it was said to be based upon the well-known principle that, in construing the planning permission, regard may be had only to the permission itself, including the reasons stated for it and that the permission should not be construed along with the application. The existence of the principle is not in doubt but as Stuart-Smith LJ pointed out in Slough Borough Council v Secretary of State for the Environment and Oury (1995) 70 P&CR 560 at 567:

“There are recognised exceptions to it. The first is where planning permission incorporates by reference the application and accompanying plans, thus enabling those documents to be referred to; Wilson v West Sussex County Council [1963] 2 QB 764, Slough Estates [1971] A.C 958. The exception is in fact more apparent than real, since the incorporation makes the documents incorporated part of the permission. It simply avoids the necessity of the planning authority repeating these matters in the permission.”

In effect, Mr Albutt’s submission relied upon what Stuart-Smith LJ referred to as the second exception, namely where the permission is ambiguous on its face. Thus it was that he submitted, by reference to what did not amount to the operative part of the permission, that the permission was not ambiguous upon its face. In my judgment, had he been correct to identify the limited part of the document to which he referred as the grant of permission, his submission would, in any event, have been wrong. Had the matter turned on it, I would have been inclined to the view that the use of the word “replacement” gave rise to a need for reference to be made, both to what was being replaced and to what was said to represent or comprise the replacement.

In the light of my firm conclusion as to the fundamental submission of the defendant being wrong, it is not necessary to trawl through the planning history starting with permission in respect of building No. 2 on 22^nd June 1972 and the terms of the permission in respect of reserved matters in a letter dated 29^th July 1974 and subsequent changes on site thereafter. In particular, as recent information supplied to the court after the termination of oral argument discloses, a new building was constructed in 1983 to house the cooking plant. Detailed written submissions and an agreed chronology have been prepared which confirm that after December 1983 the cooking plant was housed in a building erected without express planning permission. There is an issue as to whether the erection was lawful or not. But none of this affects the terms of the 1999 permission.

Importantly, on a proper analysis of the documents expressly incorporated into the 1999 permission, namely the application, particulars and plans, the following matters can be determined. The answer to question 13 on the application form, “Please describe the purposes for which the land and/or the buildings are now used or the last use”, is, “Pig farm”. Question 16 required details of the process to be carried on in the case of industrial development, but this was left blank. The drawing to which reference is made showed the whole of Rookery Farm as the application site, as was appropriate on the basis that the new cooking plant was intended as part of a farming operation. This is to be contrasted with the application made in July 2001 for a change of use where the application site was shown as limited to the new cooking plant building and the filter bed together only with a small area surrounding them plus the main access road/track. The letter dated 13^th October 1998, which accompanied the application, stated that the application put forward was as:

“a further concerted effort … to reduce the conflict by replacing the existing cooking plant with a new building as detailed in the enclosed application”.

The conflict referred to, as described in the letter, was “the conflict between the pig fattening unit at Rookery Farm and neighbouring houses and businesses in Woolpit Village”. Other parts of the letter clearly anticipated that the new cooking plant was to be regarded as part of a continuing pig fattening operation to be carried on at the farm. The letter referred to in the permission dated 7^th January 1999 responded to a letter dated 26^th November 1998 containing a question from the Development Control Division. Question 9 sought details of “tallow extraction and handling”. The answer given was that:

“Any excess will be pumped off the cooking vessel to a sealed tank to be located outside the building (exact position yet to be determined) which will have a capacity of 10,000 gallons. Thereafter this material is tankered off-site and is used elsewhere in the animal feed industry”.

This answer gives rise to a proper inference that the only product or by-product which would not be used on site as part of the pig farming operation was tallow, which is entirely consistent with the terms of condition 7 which expressly contemplated that the replacement cooking plant would be used in connection with the preparation of cooked food and its distribution and which expressly contemplates by-products arising from the cooking vessel. In my judgment, condition 7, taken on its own, is a sufficiently clear indication on the face of the permission that the authorised use was cooked food and any by-product from cooked food. In my judgment, the cooked food was to be used in connection with the pig farming operation carried on at the planning site, namely the farm.

By the terms of the letter dated 19^th January 1999 it was stated:

“Rookery Farm already has an established planning track record for this use on site for a period in excess of 20 years … we are not dealing with the principle of development at Rookery Farm but rather that of a replacement for that which already exists”.

The odour control proposals report to which the planning permission refers identified the proposal as for “Pig feed processing plant” and at paragraph 1.1 stated :

“The enclosed report outlines a basic design of a biological filter and ventilation system for the treatment of factory air and process vapour for the proposed new pig feed cooking plant at Rookery Farm”.

I am satisfied that the submission for the Council is correct, namely that it is clear that the planning permission, both sought and granted, was for a building to house a replacement cooking plant as part of a continuing agricultural operation, namely pig rearing, at Rookery Farm. It was not a permission for an industrial rendering plant.

Mr Albutt submitted that, this being a case involving an injunction, the court should determine, with precision, that which was authorised by the grant of planning permission. He submitted that the Council had shifted its position from time to time, in the course of argument, from the permission being restricted to the use of the cooking plant in connection with pig farming and a use of the cooking plant in connection with any agricultural use. In my judgment the terms of the permission, as they are on the face of the permission itself and by reference to the incorporated documents, comprise the grant of permission for the cooking plant in connection with the use of the planning site as a pig farm. As was pointed out in argument, should the defendant desire to use the cooking plant in connection with another agricultural use, it is likely that such a change of use would not amount to a material change of use or that the grant of permission for such a change of use would be likely to be available.

It follows from what I have said that the preliminary issue should be decided in favour of the Council, but it may be necessary for further discussion to take place in connection with the terms of any injunction, or in connection with any further directions or clarification which the parties require.