England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Boggis)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st February 2001

Wednesday, 21st February 2001

1. LORD JUSTICE PILL: This is an appeal against a decision of His Honour Judge Boggis QC, sitting as a judge of the Queen's Bench Division, made following the trial of a preliminary issue on the 10th February 2000. The judge, by way of paraphrase, defined the issue in the first sentence of his judgment:

"The question in this case is whether the planning permission granted in 1952 for the removal of marl was `implemented' by the removal of top soil from the site".

2. The judge answered the question in the negative, in favour of the Staffordshire County Council. In the key sentence of his judgment, the judge stated that the removal of the top soil "was preparatory to such an extent that it cannot be regarded as an act in accordance with the planning permission". The appellants, who have interests in the development of the site, appeal against that decision.
3. On 11th November 1952 the Local Planning Authority granted permission (492), subject to conditions, for the "extension of the marl-hole, Silverdale Tileries, Quarry Bank, Keele". The conditions included the following:

"3. The working of the minerals shall proceed in accordance with the stages indicated on Plan A attached to this permission unless the Local Planning Authority shall have approved in writing an alternative phasing of operations.

4.The soil of the area of excavation to a depth of 12" shall be removed and separately stored from other materials until required for re-spreading."

4. The reason given for the conditions was "in order to conserve the amenities of the neighbouring area". There were amendments to the plan and to the conditions but these are not relevant to the determination of the preliminary issue. Plan A provided a year-by-year phasing over an eleven year period but only the early years were covered by the relevant planning permission.
5. For the purposes of the preliminary issue, several points have been agreed, or assumed by reference to the respondents' pleaded case.

It is agreed that the top soil was removed from part of the permitted area.

2. No marl or other mineral was extracted from the permitted area.

3.The top soil was not stored separately and was disposed of elsewhere.

4.By 1954, waste had been tipped on the land subject to planning permission and that act was inconsistent with the winning and working of minerals on the land.

5. The stripping of the top soil did not extend to the boundaries of the area over which the planning permission was granted.

6.Some stripping occurred on land stipulated on Plan A for the later stages of development but not subject to the relevant planning permission.

6. I have set these points out fully because of submissions by Mr Purchas QC, for the respondents, based on them.
7. The issue whether the planning permission is extant arises because of subsequent legislation beginning with the Town and Country Planning Act 1968, section 65, which provides that earlier planning permissions "shall be deemed to have been granted subject to a condition that the development must be begun" not later than a specified date. The issue is whether the relevant development had been begun by the removal of the top soil, the relevant date now having long since passed.
8. Section 12 of the 1947 Act provided:

"(2) In this Act, except where the context otherwise requires, the expression `development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."

9. Section 81 of the Act is in Part VIII entitled "Application to special cases". It provided:

"(1) In relation to development consisting of the winning and working of minerals, the provisions of this Act shall have effect subject to such adaptations and modifications as may be prescribed by regulations made under this Act with the consent of the Treasury."

10. The scope of the regulations contemplated was set out in subsections (2) and (3) of section 81. Subsection (5) provided that:

"Regulations made for the purposes of this section shall be of no effect unless they are approved by resolution of each House of Parliament."

11. The Town and Country Planning (Minerals) Regulations 1971 (SI 1971/750) were, as a result, enacted. Regulation 7 provided that:

"Development consisting of mining operations shall be taken to be begun on the earliest date on which any of the mining operations to which the relevant grant of planning permission relates begin to be carried out."

12. Mining operations were stated in Regulation 1(3) to mean:

"The winning and working of minerals other than excepted minerals in, on, or under land whether by surface or underground working."

13. The case for the appellants has been put in a straightforward and persuasive way by Mr Wolton QC for the appellants. The removal of the top soil was a necessary part of the winning and working of the marl. The marl could not be worked unless the overburden was removed. Permission to remove it was necessarily granted by the permission to extend the marl-hole. The removal of top soil began the winning and working of the marl, though it is accepted that the removal of rubble from the land would not have done so. The physical characteristics of the land have been changed and changed permanently.
14. While the existence of the 1971 Regulations provides a different regime for mineral workings, Mr Wolton relies on decisions of the Courts which have involved consideration of whether other forms of development had begun before an expressed or deemed time limit. In Thayer v Secretary of State for the Environment [1991] 3 PLR 104, outline planning permission had been granted to build a house. It was subject to a condition that the development should be begun within five years. The application for that permission had indicated that the proposal involved the construction of a new highway access. Before time had expired, a boundary hedge was removed to provide an opening and an amount of surface earth removed in preparation for a driveway.
15. Purchas LJ stated, at page 110, beginning at C:

"The judgment of Eveleigh LJ in Malvern Hills District Council v Secretary of State for the Environment (1982) 46 P&CR 58 emphasised that the test to be applied is not the `quantum' of the work involved but whether that work was `related to the planning permission involved'. The question to be asked here, which the inspector did not ask, is: `Was the work related to the 1973 permission?' It is accepted, and rightly so, that the onus of establishing this must rest upon the appellant as the person who seeks to prove that `the development has begun within the five- year limit contained in condition (1).'

In the Malvern Hills case the majority of the Court of Appeal held that the accurate marking out of a proposed road with pegs amounted to an `operation' in the course of laying out part of a road and therefore qualified under section 43(2)(d). In his minority judgment Lord Denning MR repeated the approach which he had adopted in Parkes v Secretary of State for the Environment [1978] 1 WLR 1308, namely that `operation' comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself. In this way Lord Denning was able to exclude the laying out of the work with pegs from the ambit of the word `operation'. The physical removal of the hedge and the excavation of soil with a JCB removes this case from the exclusion of section 43(2)(b) even on the basis of Lord Denning's dissenting judgment. The passage from the judgment of Eveleigh LJ in the Malvern Hills case at p 70 is, in my judgment, clear authority for the proposition that the extent of the work is relevant for consideration only on a de minimis basis.

`I therefore do not regard Parkes's case as authority for the proposition that there cannot be an operation within section 43 unless some physical change has already been achieved.

If an oil company constructs a drilling rig for testing purposes, but the drill has not yet pierced the soil, are we to say that it is not carrying on engineering operations?

This conclusion seems to me to accord with the intention of the legislature. Sections 41 and 42 seek to ensure that land will not be held undeveloped for an indefinite period of time in the hands of speculators whose only intention is to sell the land at some future propitious date at the enhanced value that development permission attracts. Section 43 seeks some earnest of intention to develop. The specified operations are not necessarily very extensive. Very little need be done to satisfy the section. That which is done, however, must genuinely be done for the purpose of carrying out the development.'"

16. Watkins LJ, who agreed with Eveleigh LJ in Malvern Hills, stated at page 42 of the report of that case:

"... the pegging out was, in my opinion, on the whole of the accepted facts an unequivocal manifestation of the intention of the builders to begin development within the permitted time..."

17. In United Refineries Ltd v Essex County Council [1978] JPL 110 permission was granted, subject to a time condition, for "use of land for an oil refinery, including railway and pipeline approaches". Issues arose as to whether the expenditure of £30,000 on building an access road and stripping top soil from an area of 5.8 acres before the time limit expired constituted "building and other operations, so that development could be said to have begun". It was a £15 million project. Fox J rejected the argument that the work which had been commenced was de minimis. He also found that the stripping of the top soil was a "building operation", work that would normally be done on erecting a building. It is submitted that if the removal of top soil is a "building operation", as to which I make no finding, the same comes within the expression "winning and working" of minerals. An argument based on the de minimis principle has not been advanced in the present case.
18. Judge Boggis referred to English Clays v Plymouth Corporation [1974] 1 WLR 742 where the present point was considered but was not central to the case. Russell LJ, giving the judgment of the Court stated (at page 746 H):

"It is perhaps not necessary to be dogmatic on the point in this case: but our present view is that to `win' a mineral is to make it available or accessible to be removed from the land, and to `work' a mineral is (at least initially) to remove it from its position in the land: in the present case the china clay is `won' when the overburden is taken away, and `worked' (at least initially) when the water jets remove the china clay together with its mechanically associated other substances from their position in the earth or land to a situation of suspension in water."

19. Mr Wolton submits that, applying the approach in those cases to the mineral regime, it is plain that the removal of the top soil comes within the scope of "winning" the marl. He submits, and I agree on this point, that the judge was correct to find that "if the winning has started but the working has not itself started, the planning consent will still have been implemented", although I would prefer to express the concluding words by using the expression "the winning and working had begun". It was because the point appeared to the appellants to be plain that the judge was requested to rule upon it as a preliminary point.
20. Mr Purchas confronts directly the submission that the removal of the top soil began the winning and working of minerals. It was only preparatory work. He also relies on the conditions attached to the planning consent and the events which followed the removal of the top soil as defeating, he submits, the case that the winning and working of minerals had begun. The burden of establishing that it had begun was on the appellants. Mr Purchas submits first, and contrary to the judge's finding, that the removal was outside the terms of the permission by reason of failure to comply with the phasing requirement in condition 3 or the storing requirement in condition 4.
21. Secondly, it is submitted that the tipping which occurred soon after the removal was not only inconsistent with a condition but inconsistent with winning and working the marl having begun. The appellants have provided no explanation as to why only removal had occurred. There is no contemporary or subsequent evidence that the removal of the top soil was in fact part of the winning and working of the mineral in accordance with the permission or otherwise. There was an obvious alternative explanation for the stripping in that legislation was shortly to be introduced, and was introduced in May 1953, (The Agricultural Land (Removal of Surface Soil Act), ("the 1953 Act") making it an offence to remove surface soil from agricultural land with a view to the sale of that soil. That was the more likely explanation for the removal, it is submitted. Inferences should be drawn and the inference to be drawn in this case was that the onus on the appellants had not been discharged. These submissions were also made to the judge and he accepted them, at least to the extent that he found that subsequent events confirmed his conclusion that the removal of the top soil was not the implementation of the permission.
22. In reply, Mr Wolton submits that since planning permission runs with the land the appellants, who are subsequent purchasers, cannot in law be expected to give explanations for events which occurred almost fifty years ago. They are entitled to a ruling based on the admitted removal of top soil in 1952 or 1953 and the absence of reliance by the respondents on the de minimis principle. If, by the removal of top soil, the winning and working of minerals had begun, subsequent events cannot destroy the right which had accrued. Moreover, consideration of and speculation about the motives of the then owners is irrelevant.
23. I deal first with Mr Purchas's submission that, read with its conditions, the removal of top soil was outside the terms of permission 492. Once it is accepted that stripping had occurred on a substantial part of the land subject to the planning permission, the legal effect, if any, of that action is not defeated either by the fact that the stripping did not coincide with the boundary of the land granted planning permission or by the fact that stripping also occurred on land where planning permission had not been granted. The phasing on plan A did not deprive the action of legal effect. Neither, in my judgment, did the requirement in condition 4 to store the top soil defeat the permission. The failure to do so was a breach of condition and subject to enforcement as such, but it did not deprive the removal, which on any view would have to occur if minerals were to be extracted, of legal effect.
24. There is no doubt that the planning permission empowered the operators to remove the top soil and they did so. Unlike the situation in Oldham MBC and Another v The Secretary of State ex parte Foster [2000] JPL 711 (applying Whitley and Sons v Secretary of State for Wales (1992) 64 P&CR 296), this was not a condition which it was necessary to meet before mining could commence. In Foster, the permission was subject to a condition that

"the applicants shall submit to the local planning authority before March 31st, 1953 a detailed plan and scheme for the continuation of the workings...".

25. The removal of the top soil in this case was authorised by the permission and the condition did not operate until the removal had occurred.
26. I also reject that part of Mr Purchas's submission, as expressed, which though he seeks to put it as an objective approach, depends in my view on a consideration of the then operator's subjective motives and intentions in the 1950s. I agree with the judge that the question must be approached objectively. That approach has been approved in the Court of Session: Inner House in East Dunbartonshire Council v Secretary of State for Scotland [1999] 1 PLR 53. Planning permission had been granted for the residential development of a 44 acre site. The "specific operation" relied on under the relevant Scottish legislation, which was similar in effect to the corresponding English legislation, was the setting out and excavation of an access road. The local authority contended that an operation was not "specified" unless it was carried out with the intention of carrying out or completing the development. Giving the judgment of the Court, Lord Coulsfield stated, at page 60:

"It would be particularly undesirable, in our opinion, to attempt to introduce into the statutory code requirements which were not capable of reasonably precise definition. As was submitted on behalf of the second respondent, the requirement that the specified operation should be undertaken with some sort of intention in regard to the carrying out of the development would be one extremely difficult to define and apply. ... Where the developer has or may have mixed motives and purposes, the application of any tests of genuine intention becomes even more complicated. If there were any such test, it might have been expected that it would, by this time, have been clearly defined by authority. ... the statute prescribes time-limits and the circumstances in which planning permissions are to continue in force beyond those time-limits, and does so without any requirement as to intention. It seems to us therefore that to add a requirement as to intention would clearly go beyond what the statute prescribes."

27. At page 64G Lord Coulsfield stated:

"Having considered all the authorities, it is our conclusion that there is nothing in them that compels us to adopt the approach urged on us on behalf of the appellants. It is, no doubt, natural to feel that it would be unsatisfactory if the person entitled to the benefit of a planning permission could keep it in being by carrying out some work that could be regarded as a mere token or pretence. It seems to us, however, that the solution to that problem, if it is a problem, is more likely to be found by applying an objective approach and considering, first, whether what has been done has been done in accordance with the relevant planning permission, and, second, whether it is material, in the sense of not being de minimis ... In our view, as we have indicated, there is no justification in the terms or in the structure of the legislation for the imposition of an ill-defined requirement that the specified operation should be carried out with some particular intention. In our view, the proper test is an objective one..."

28. I respectfully agree with that approach and the submissions of Mr Purchas on this aspect of the case involve a consideration of motives and intentions which are incompatible with it.
29. I turn to the central point at issue. Mr Wolton submits that the two requirements specified in the second passage cited from the judgment of Lord Coulsfield were met in this case. First, the removal of the top soil was done in accordance with the relevant planning permission. Indeed, it is obvious that marl could be not be extracted without first removing the top soil. Secondly, what has been done is not de minimis.
30. However, I have come to the conclusion that the judge was correct to resolve the preliminary issue in favour of the respondents and for the following reasons:

1. There is a special regime for determining the issue in a mining context. It turns upon the expression "winning and working" of minerals. The expression is not further defined in the legislation so that, in construing it, the Court does not have the advantage of the detailed definition of "specified operations" in section 40 of the Town and Country Planning (Scotland) Act 1972 or of equivalent expression in English legislation.

2. The Court knows only that 12 inches of top soil have been removed and the preliminary point is argued on that basis. If the definition provisionally stated in English Clays is applied to the word "win", it is not known whether the removal of 12 inches of top soil has made the marl available or accessible to be removed from the land. There is no evidence as to the depth at which marl is present or as to the impact of the removal upon the ability to work it.

3. The physical change in the land which has undoubtedly occurred has little relevance to the construction of the expression "winning and working".

4. Topsoil has a special value in the public interest which the law has an interest in protecting. This is illustrated by the 1953 Act and by the imposition in this case of a planning condition requiring the storage of top soil. Planning permission is normally required for its removal, Mr Wolton tells us. Its removal, though a prerequisite to mining, can fairly be seen as a discrete operation. Its removal is capable of being an operation distinct from the winning and working of the minerals which are somewhere beneath it.

5. The removal was in accordance with the planning permission, and there could be no mining unless it occurred but it cannot be seen as an unequivocal act pursuant to the planning permission. It has an ambivalence which distinguishes it from the acts considered sufficient in the cases under the general planning law to constitute development. This ambivalence is illustrated by the special status of top soil in fact and in law, for example, under the 1953 Act.

6. I do not accept the forceful submissions of Mr Purchas on the facts and motives of the 1950s as being determinative of the case. The situations which are capable of arising in circumstances such as the present do however throw some light on how the relevant act, that of removing the top soil, is to be categorised. The removal is capable of being a distinct operation separate from the winning and working of minerals.

31. I am not prepared to find as a proposition of law that, when a mineral permission is granted, the removal of 12 inches of top soil began or was a part of the winning and working of the mineral. On the facts presented to the court, I am not able to hold that the removal of the top soil began or was a part of the operation of winning and working the marl. Accordingly, I would dismiss this appeal.
32. LORD JUSTICE TUCKEY: I agree.
33. LORD JUSTICE KAY: I also agree.
Order: Appeal dismissed. Appellants to pay to the Respondents 85% of the sum of £35,416 which appears on their statement dated 14th February. Permission to appeal to the House of Lords refused. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)