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 CHANCERY DIVISION
(His Honour Judge Boggis)

		Royal Courts of Justice Strand London WC2
		21st May 2002

1. LORD JUSTICE PETER GIBSON: I will ask Jonathan Parker LJ to give the first judgment.
2. LORD JUSTICE JONATHAN PARKER: This appeal is concerned with the situation which arises where there are two subsisting planning permissions in different terms relating to the same land.
3. On 13 November 1956 Cannock Rural District Council, on behalf of Staffordshire County Council as the local mineral planning authority, granted planning permission under reference CCR/1767 ("the 1956 permission") for the working of clay and associated minerals on a site at Cheslyn Hay, Wolverhampton, known as the Campions Wood site. On 23 February 1987 the Secretary of State for the Environment, on appeal, granted to the National Coal Board Opencast Executive (an agency of the National Coal Board ("the NCB")) planning permission ("the 1987 permission") for the winning and working of coal by opencast methods on a site to the south of Cheslyn Hay known as the Streets Lane site. The area of the Streets Lane site included part of the Campions Wood site, extending to some 6.3ha. The part so included has been referred to in argument and in the judgment below as "the Area of Overlap", and I will so refer to it in this judgment. The appellants, the defendants in the proceedings, are persons interested in the Area of Overlap.
4. The 1956 permission was duly implemented by the carrying out of works of extraction of clay and associated minerals from parts of the Campions Wood site, including part of the Area of Overlap. In the course of these works a seam of coal was encountered, which hindered further extraction of clay. In 1987 the NCB applied for, and was granted, planning permission (that is to say, the 1987 permission) to extract coal by opencast methods from the Streets Lane site, including the Area of Overlap. In 1989 the NCB acquired, by virtue of a Compulsory Rights Order, those parts of the Area of Overlap which it did not already own, and commenced to extract coal by opencast mining from the Area of Overlap. Coaling on the Streets Lane site (including the Area of Overlap) was completed by 1993, and by 1999 the entire site had been fully restored in accordance with conditions to that effect contained in the 1987 permission.
5. On 1 November 1995 the Environment Act 1995 ("the 1995 Act") came into force. Under Schedule 13 to the 1995 Act local mineral planning authorities were required to prepare, by 31 January 1996, a "first list" of mineral sites in their area, including "active Phase 1" sites, that is to say, sites with the benefit of a minerals planning permission granted between 30 June 1948 and 31 March 1969 (disregarding sites in special areas) and which had been worked to "any substantial extent" between 22 February 1982 and 6 June 1995. Staffordshire County Council ("the Council") included in its "first list" as an active Phase I site the Campions Wood site, but excluding the Area of Overlap. The effect of that exclusion, if maintained, would have been that the 1956 permission would cease to be operative in relation to the Area of Overlap. Accordingly in April 1996 application was made on behalf of the appellants for the inclusion of the Area of Overlap in the "first list". The Council rejected that application, on the footing that the grant of the 1987 permission, its implementation, and the restoration of the Streets Lane site (including the Area of Overlap), had rendered the rights granted by the 1956 permission incapable of exercise in the Area of Overlap.
6. This led in due course to the issue by the Council, on 21 August 1996, of the originating summons in the present proceedings. The originating summons joins the appellants as defendants and seeks a declaration that the 1956 permission does not authorise the excavation of clay and other minerals on land the subject of the 1987 permission, that is to say on the Area of Overlap. The originating summons also seeks declaratory relief in relation to the requirements of Schedule 13 of the 1995 Act, but it is accepted that this further relief is consequential on the first declaration sought. By an order dated 14 May 2001 His Honour Judge Boggis QC, sitting in the Chancery Division, Birmingham District Registry, granted the relief sought on the originating summons. He granted the appellants permission to appeal, and they now appeal.
7. I must now turn to the 1956 permission and to the 1987 permission in more detail.
8. The 1956 permission permits the excavation of clay and other minerals, subject to 14 conditions. The reason for the imposition of the conditions is expressed to be: "To safeguard the amenities of the area and to protect the interests of the users of the highway." Condition 2 provides that the permission shall expire when the site is worked out and when the restoration referred to in condition 14 has been carried out (neither of which events has happened). It is common ground that, by virtue of paragraph 1(5) of the Fifth Schedule to the Town and Country Planning Act 1990 ("the 1990 Act"), subject to earlier expiry on the fulfilment of condition 2, the 1996 permission will not expire until 2042. Condition 14 is in the following terms (so far as material):

"When the extraction of the minerals referred to in this permission is discontinued on the site,

...

(b)Waste material shall be replaced in the excavated area and the ground shall be treated so as to avoid any harsh break of gradient and so as to conform as nearly as possible with the contours of the adjoining areas. Soil capable of promoting plant growth shall be spread over the excavated area. The whole of the work to be carried out to the reasonable satisfaction of the Local Planning Authority."

9. The 1987 permission permits (so far as material) "the winning and working of coal by opencast methods, coal preparation and despatch and associated road and service diversions, followed by restoration to agriculture". It is subject to 32 conditions. Condition iii provides that all permitted operations shall be complete not later than 6 years from the date of the permission. Condition xxi provides that the site is to be progressively restored in accordance with a scheme to be agreed with the Council, and it sets out a number of features which are to be included in such a scheme. Subparagraph h. of condition xxi provides that the condition shall not operate so as to provide for the restoration of the Campions Wood site out of the sequence of the general phasing of restoration as illustrated in certain specified drawings. Conditions xxii, xxiii, xxiv and xxvi are in the following terms:

"xxii. an aftercare scheme requiring that such steps as may be necessary to bring each phase of the land restored under condition xxi preceding to the required standard for use for agriculture (ie to restore its physical characteristics so far as it is practicable to do so, to what they were when it was last used for agriculture) shall be submitted for the approval of the Mineral Planning Authority not later than 6 months from the date of this permission;

xxiii. the submitted aftercare scheme shall specify in relation to each phase the steps to be taken, and the periods during which they are to be taken;

xxii. subject to condition xxv following, aftercare of the site shall be carried out in accordance with the aftercare scheme as approved by the Mineral Planning Authority.

...

xxvi. on completion of the restoration of the land, the public rights of way crossing the site which are suspended during the opencast operations shall be reinstated on their original alignments, or such other alignments as may be agreed by the Mineral Planning Authority and to a condition not less serviceable than at the commencement of the operations."

10. The NCB duly complied with all the conditions attached to the 1987 permission. Its mining operations were completed within the stipulated period of 6 years, and following such completion the entirety of the Streets Lane site (including the Area of Overlap) was restored in accordance with a detailed "Restoration Brief" drawn up in consultation with the Council. The NCB also complied with its obligations in relation to the "aftercare" of the site. The process of restoration and aftercare continued from 1991 to 1999.
11. It is agreed for the purposes of the present proceedings that there are deposits of clay and associated minerals in the Area of Overlap which it is practicable and viable to extract. The issue, however, is whether the 1956 permission is still extant in so far as it applies to the Area of Overlap, given what has been done in implementation of the 1987 permission, and in particular the completion of the process of restoration and aftercare in relation to the Area of Overlap.
12. Before turning to the judgment, and to the arguments which have been addressed to us on this appeal (arguments which are substantially the same as those which were addressed to the judge), I refer first to the relevant statutory provisions (all of which are to be found in the 1990 Act), and to the authorities.
13. Section 55(1) of the 1990 Act defines "development" as including mining operations in, on, over or under land. Section 55(4) provides that for the purposes of the 1990 Act mining operations include the removal of material of any description from a mineral-working deposit. Section 57(1) imposes a general requirement for planning permission for the carrying out of any development of land. Section 75(1) of the 1990 Act (the successor to section 33(1) of the Town and Country Planning Act 1971 ("the 1971 Act")), provides as follows:

"Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it."

14. Section 106(1) of the 1990 Act provides that any person interested in an area of land may enter into a "planning obligation" with the local planning authority. In contrast to a planning agreement entered into pursuant to section 52 of the 1971 Act, a "planning obligation" for the purposes of section 106 may be bilateral or unilateral. It may restrict the development or use of the land, or require that it be used in a particular way.
15. I turn next to the authorities.
16. The starting point is Pilkington v The Secretary of State for the Environment [1973] 1 WLR 1527. In Pilkington, an owner of land was granted planning permission (no.756) to build a house on part of it (site "B"). It was a condition of the planning permission that the house should be the only house to be built on the land. The owner duly built the house. Later, he discovered the existence of an earlier planning permission (no.601) to build a house and garage on another part of the same land (site "A"). The earlier permission contemplated that the remainder of the land would be used as a smallholding. The owner started to build a house on site A, but was served with an enforcement notice by the local planning authority alleging a breach of planning control. The owner sought to challenge the enforcement notice, but the Secretary of State decided that when the later permission was implemented, the earlier permission became incapable of implementation. The Divisional Court upheld the Secretary of State's decision. It did so on the footing that the house built on site B had destroyed the smallholding, and that the erection of more than one house on the land had not been sanctioned. The leading judgment was delivered by Lord Widgery CJ, with which Bridge and May LJJ agreed.
17. Referring to permission no.601, Lord Widgery CJ said this (at page 1529D-H):

"When one looks at the relevant plan, it shows that what was then contemplated was a bungalow to be built at the northern end of this strip of land, the end which has been referred to throughout the argument as site A. For convenience in argument, the strip of land has been notionally divided into three plots; site A is the northernmost of the three, and the permission number 601 contemplated the building of a bungalow on site A, and also showed the rest of the entire site as being coloured, and thus within the application which was being made. The reference to a smallholding in the permission in my judgment clearly contemplates that the coloured land, that is to say the entire strip to which I have first referred, is embraced in the application, and that the intention is to use that land as a smallholding.

I fully appreciate the argument put before us by Mr. Dobry that using land as a smallholding does not require planning permission, and it is perfectly true to say that the development which was contemplated in permission 601 was the building work of erecting a bungalow, but it is well known that a decision to allow building work to take place is affected by the setting in which the building will lie, and it is also affected by such considerations as the extent of the curtilage intended to be provided and the use to which other land occupied with the building should be put. Therefore I think it quite wrong to say that permission 601 merely permits the building of a bungalow. It permits the building of a bungalow in the setting contemplated by the application, namely, as a dwelling house upon a smallholding."

18. Referring to permission no.756 (the later permission, which had been implemented), Lord Widgery CJ said this (at page 1530A-C):

"When one looks at the appropriate plan in respect of this development permission, one finds that it was for the erection on a bungalow not on the part of the land which I have called site A, but in the middle of the land on the part which has been referred to as site B. Again it shows the whole curtilage as being associated with the permission. It therefore shows that the bungalow permitted to be built will be in the middle of the whole site, and have the whole site as part of its curtilage, and in case it is necessary to make that point even more vivid, the permission itself contains a condition in these terms: `The bungalow shall be the only dwelling to be erected upon the area of land edged red on the submitted plan.' That certainly drives home the point that the permission comprised in number 756 was for a bungalow on site B, but that the whole of the site to which I originally referred is comprised in the permission in that that bungalow is intended to have the rest of the site as its curtilage."

19. Addressing the issue whether the Secretary of State's decision that permission no.601 was "incapable of implementation", Lord Widgery CJ said this (at pages 1531D-1532G):

"There is, perhaps surprisingly, not very much authority on this point which one would think could often arise in practice, so I venture to start at the beginning with the more elementary principles which arise. In the first place I have no doubt that a landowner is entitled to make any number of applications for planning permission which his fancy dictates, even though the development referred to is quite different when one compares one application to another. It is open to a landowner to test the market by putting in a number of applications and seeing what the attitude of the planning authority is to his proposals.

Equally it seems to me that a planning authority receiving a number of planning applications in respect of the same land is required to deal with them, and to deal with them even though they are mutually inconsistent one with the other. Of course, special cases will arise where one application deliberately and expressly refers to or incorporates another, but we are not concerned with that type of application in the present case.

In the absence of any such complication, I would regard it as the duty of the planning authority to regard each application as a proposal in itself, and to apply its mind to each application, asking itself whether the proposal there contained is consistent with good planning in the factual background against which the application is made.

I do not regard it as part of the duty of the local planning authority itself to relate one planning application or one planning permission to another to see if they are contradictory. Indeed I think it would be unnecessary officiousness if a planning authority did such a thing. They should regard each application as a proposal for a separate and independent development, and they should consider the merits of the application upon that basis. What is the consequence here? The fact that application 756 related to a bungalow central in the site, and the fact that it contemplated only one bungalow on the whole site, and the fact that that permission has now been implemented, means in my judgment that one must look back at permission 601, and see whether in fact that development there contemplated can now be carried out consistently with the development sanctioned in the implemented application number 756.

For this purpose I think one looks to see what is the development authorised in the permission which has been implemented. One looks first of all to see the full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.

Accordingly, one now looks back at permission 601 to see whether the development there contemplated is a practical possibility having regard to what has been done or may be done under number 756. I have no doubt in my mind that it is quite clear that the development contemplated by number 601 cannot now be carried out. As I endeavoured to explain earlier, the development contemplated by number 601 was the building of a bungalow, but the building of a bungalow in a particular site as ancillary to the smallholding which was to occupy the rest of the site. It is not now possible to build a bungalow on number 601 subject to those terms, and it does not follow in the least that if the local planning authority had been asked to give permission for a bungalow on site A that they would have done so if they had known that the remainder of the site was not to be made available for the smallholding which was clearly in contemplation all the way through.

I find that if one looks at the development sanctioned by number 601 and asks oneself whether that can now be carried out having regard to the activities pursuant to permission number 756, it seems to me the answer must be no, and I think that if that is the position the effect is that permission 601 is no longer capable of being implemented.

Whether or not it should be regarded as in suspense and possibly available at a future time should the development carried out pursuant to number 756 be removed is something which I do not feel compelled to express an opinion about. What I am clear about is that it is not now possible to implement number 601 for the reasons I have endeavoured to give."

20. Lord Widgery CJ concluded this part of his judgment by saying (at page 1532H):

"My views on this matter are not based on any election on the part of Mr. Pilkington; they are not based on any abandonment of an earlier permission, and they do not in any way depend on the fact that the building on site A may have been a breach of the condition in number 756. I base my decision on the physical impossibility of carrying out that which was authorised in number 601. I mention this because I do not regard the case as one in which the Secretary of State's decision depends on the condition in number 756."

21. In Pioneer Aggregates (UK) Ltd v The Secretary of State for the Environment [1985] 1 AC 132 HL, the issue before the House of Lords was whether it was possible for a planning permission to be abandoned by conduct. Lord Scarman (with whom the other members of the Appellate Committee agreed) held that there was no such general principle of abandonment in planning law. At page 140F Lord Scarman said this:

"My Lord, on the question of abandonment I find myself in agreement with both courts below that there is no such general rule in the planning law. In certain exceptional situations not covered by legislation, to which I shall refer, the courts have held that a landowner by developing his land can play an important part in bringing to an end or making incapable of implementation a valid planning permission. But I am satisfied that the Court of Appeal in the Slough case erred in law in holding that the doctrine of election between inconsistent rights is to be incorporated into the planning law either as the basis of a general rule of abandonment or (which the courts below were constrained to accept) as an exception to the general rule that the duration of a valid planning permission is governed by the provisions of the planning legislation. I propose now to give my reasons for reaching this conclusion.

Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. The planning law, though a comprehensive code imposed in the public interest, is, of course, based on the land law. Where the code is silent or ambiguous, resort to the principles of the private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.

Parliament has provided a comprehensive code of planning control."

22. Lord Scarman went on to refer to a number provisions of the 1971 Act, including section 33(1) (the forerunner of section 75(1) of the 1990 Act, quoted earlier) which he regarded as being of "crucial importance". After quoting the subsection, Lord Scarman continued at page 141G-H:

"The clear implication is that only the statute or the terms of the planning permission itself can stop the permission enuring for the benefit of the land and of all persons for the time being interested therein."

23. Lord Scarman accordingly concluded (at page 142G-H):

"Viewed as a question of principle, therefore, the introduction into the planning law of a doctrine of abandonment by election of the landowner (or occupier) cannot, in my judgment, be justified."

24. Lord Scarman went on to refer to a number of authorities which, as he put it (at page 143B), "might seem to suggest that there is room in the planning law for a principle, or an exception, allowing the extinguishment of a planning permission by abandonment". In this connection he identified three classes of case. The first concerned existing use, and the second concerned the concept of a "new planning unit". Neither of those classes of case is material for present purposes. The third class of case concerned the situation which arose when there were two planning permissions in respect of the same land. It was in the context of this third class of case that Lord Scarman referred to Pilkington. As to this third class of case Lord Scarman said this (at page 144N):

"The third class of case comes nearer to the facts and law of the present appeal. These cases are concerned not with existing use rights but with two planning permissions in respect of the same land. It is, of course, trite law that any number of planning permissions can validly co-exist for the development of the same land, even though they be mutually inconsistent. In this respect planning permission reveals its true nature - a permission that certain rights of ownership may be exercised but not a requirement that they must be.

But, what happens where there are mutually inconsistent permissions (as they may well be) and one of them is taken up and developed? The answer is not to be found in the legislation. The first reported case appears to have been Ellis v. Worcestershire County Council (1961) 12 P. & C.R. 178, a decision of Mr. Erskine Simes Q.C. to which Lord Widgery C.J. referred with approval in what must now be regarded as the leading case on the point, Pilkington v. Secretary of State for the Environment [1973] 1 W.L.R. 1527.

Mr Erskine Simes, in a passage which Lord Widgery C.J. was later to describe as exactly illustrating the principle, said, at p.183:

`If permission were granted for the erection of a dwelling house on a site showing one acre of land as that to be occupied with the dwelling house, and subsequently permission were applied for and granted for a dwelling house on a different part of the same acre which was again shown as the area to be occupied with the dwelling house, it would, in my judgment, be impossible to construe these two permissions so as to permit the erection of two dwelling houses on the same acre of land. The owner of the land has permission to build on either of the sites, but wherever he places his house it must be occupied with the whole acre.'

Pilkington was a Divisional Court decision. It has been approved by the Court of Appeal in Hoveringham Gravels Ltd. v. Chiltern District Council (1977) 76 L.G.R. 533. Its facts were that the owner of land was granted planning permission to build a bungalow on part of the land, site `B'. It was a condition of the permission that the bungalow should be the only house to be built on the land. He built the bungalow. Later the owner discovered the existence of an earlier permission to build a bungalow and garage on another part of the same land, site `A' That permission contemplated the use of the rest of the land as a smallholding. He began to build the second bungalow, when he was served with an enforcement notice alleging a breach of planning control. The Divisional Court Held that the two permissions could not stand in respect of the same land, once the development sanctioned by the second permission had been carried out. The effect of building on site `B' was to make the development authorised in the earlier permission incapable of implementation. The bungalow built on site `B' had destroyed the smallholding: and the erection of two bungalows on the site had never been sanctioned. This was certainly a common sense decision, and, in my judgment, correct in law. The Pilkington problem is not dealt with in the planning legislation. It was, therefore, necessary for the courts to formulate a rule which would strengthen and support the planning control imposed by the legislation. And this is exactly what the Divisional Court achieved. There is, or need be, no uncertainty arising from the application of the rule. Both planning permissions will be on a public register: examination of their terms combined with an inspection of the land will suffice to reveal whether development has been carried out which renders one or other of the planning permissions incapable of implementation."

25. In Prestige Homes (Southern) Ltd v Secretary of State for the Environment & Anor (1992) 3 PLR 125, outline planning permission was granted in 1983 for the erection of a detached house on a site extending to .07ha. ("the 1983 site"). In 1985 full planning permission was granted for the erection of a house on a much larger site, which incorporated the whole of the 1983 site. A drawing accompanying the 1985 permission showed trees on part of the 1983 site, and a condition attached to the 1985 permission required the retention of existing trees. On application being made by persons interested in the 1983 site for the approval of matters reserved by the 1983 permission, the planning authority declined to deal with the application, taking the view that the 1983 permission could no longer be implemented. An appeal against this deemed refusal was allowed by the Secretary of State, but the inspector's decision was based on design merits only. He did not address the issue of the compatibility of the 1983 permission with the 1985 permission. When the appellants began building operations pursuant to the 1983 permission, the planning authority served an enforcement notice. The appellants appealed to the Secretary of State against the enforcement notice. The inspector, referring to Pilkington, concluded that the correct test was whether either permitted dwelling was so compromised as to preclude implementation reasonably in accordance with the plans approved. Applying that test, the inspector concluded that the 1983 permission was not compatible with the 1985 permission, and that accordingly there had been a breach of planning control. The appellants appealed to the High Court. The appeal was heard by Mr Malcolm Spence QC (sitting as a Deputy High Court judge).
26. Having referred extensively to Pilkington, Mr Spence QC turned to the conclusion of the inspector that he had to consider "whether the setting of either permitted dwelling is compromised so as to preclude implementation reasonably in accordance with the plans as approved": a conclusion that Mr Spence described as lying "at the heart of the present case". Mr Spence QC then turned to the primary submission of counsel for the Secretary of State to the effect that Pilkington established that, where there are two permissions which relate to the same land and the second has been implemented, the first permission cannot be implemented if (a) it is no longer capable of implementation; or (b) it cannot be carried out consistently with development sanctioned and implemented by the second permission.
27. Mr Spence QC continued at page 132E-G:

"In an attempt to put the issue in its most concise form he was submitting that one can look at the matter `either way'; that is to say, either, as in the Pilkington case, to consider whether the permission sought to be implemented second is still capable of implementation or, as in the present case (where the permission sought to be implemented second is, it is not disputed, still capable of implementation, albeit the trees would not be retained), to consider whether the permission implemented first could not have been implemented in its permitted form if the other permission were implemented."

28. Mr Spence QC then expressed his conclusions on counsel for the Secretary of State's submission as follows (at pages 132G-134B):

"I cannot accept Mr Holdsworth's submissions. I uphold the submissions of Mr Horton QC, who appears for the appellants. In my judgment, the doctrine in Pilkington is encapsulated in the words of Lord Widgery at p 1532H:

I base my decision on the physical impossibility of carrying out that which was authorised in number 601.

That sentence is an abbreviation of the approach set out in detail in the three paragraphs on p 1532 beginning with the paragraph commencing `For this purpose'. In these three paragraphs I should like to emphasise the words in the first of them, `one asks oneself whether it is possible to carry out the development proposed in that second permission'; in the second paragraph, `I have no doubt in my mind that it is quite clear that the development contemplated by number 601 cannot now be carried out'; and in the third paragraph, `I think that if that is the position the effect is that permission 601 is no longer capable of being implemented'.

With all that in mind, I cannot read the last sentence before these three paragraphs as meaning what Mr Holdsworth submits in his submission 1(b). In that sentence Lord Widgery was considering whether the permission then to be implemented, namely 601, could be carried out, not whether the permission 756, which had already been implemented, could properly have been carried out. When Lord Widgery said, `consistently with the development sanctioned in the implemented application number 756', he meant to introduce everything which he was just about to deal with in detail in the following three paragraphs, namely whether the permission now to be carried out could be carried out.

It will be noted that Lord Scarman in the Pioneer Aggregates case did not treat the matter differently from Lord Widgery. I draw attention in particular to the first complete sentence on p 145:

The effect of building on side `B' was to make the development authorised in the earlier permission capable of implementation.

At the end of the paragraph he says:

... examination of their terms combined with an inspection of the land will suffice to reveal whether development has been carried out which renders one or other of the planning permissions incapable of implementation.

That is the true doctrine in Pilkington in virtually the same words as those used by Lord Widgery throughout p 1532, and I should add, for the sake of clarity, that both Lord Widgery and Lord Scarman put the rule in this way, having in mind what Mr Erskine Simes had said in Ellis. It cannot properly be assumed that, because of what Mr Erskine Simes said, the true rule is any wider than as put by Lord Widgery or Lord Scarman.

The point of this is that in a case where the permission is, on its facts, incapable of being implemented, any development carried out on the site cannot be in pursuance of that permission. There is no rationale for looking at the matter `the other way round'. In the present case the 1983 (as yet unimplemented) permission is capable of being implemented, albeit the trees would not be retained. It may well be that the implementation of it would have an adverse effect upon the development already carried out under the 1985 permission and be incompatible with that permission, as the inspector has held; but that does not give rise to a basis for holding that in some way the 1983 permission has ceased to be of any efficacy. Unlike the Pilkington permission 601, it is still capable of implementation and there is no physical impossibility of carrying out the development authorised by it, and there is no other basis upon which I can hold that it has ceased to be of any efficacy.

Pilkington does not say that mere incompatibility with another permission already implemented is sufficient to enable one to hold that a permission which is capable of implementation is of no effect. For these reasons, in my judgment, the inspector's approach was not in conformity with the doctrine of Pilkington."

29. Mr Spence QC then went on to consider whether the doctrine established in Pilkington and approved in Pioneer ought to be extended to any extent. He concluded that it should not be extended, for three reasons, which he expressed as follows (at page 134B-D:

"... [F]irst, as I have endeavoured to explain, there is no rationale for treating a permission as of no effect in this context, except in a case where it has become incapable of implementation; second, I note that Lord Widgery preferred to base his judgment upon the impossibility of carrying out the (as yet unimplemented) permission rather than upon mere incompatibility; third, whereas, as Lord Scarman pointed out at p 145C, the planning register would reveal whether one of the permissions was incapable of implementation, it would not necessarily reveal whether an apparently good permission capable of implementation was rendered ineffective by another permission."

30. Mr Spence QC continued at page 134D-E:

"In my view, an extension of the Pilkington doctrine on these lines would make the planning register system entirely unsafe for the use of the public; on the other hand, the local planning authorities are perfectly well protected by the present system. When considering an application in respect of a site where there already exists a permission, if they wish to grant permission, they can readily ensure, if they so desire, by one of the means available to them (eg by a section 106 agreement or by revocation) that the earlier permission shall cease to have effect. In my judgment, there would be no warrant whatever for extending the Pilkington doctrine beyond the rule laid down by Lord Widgery."

31. Accordingly, Mr Spence QC held that the fact that development pursuant to the 1983 permission would involve a breach of the condition in the 1985 permission relating to the retention of trees did not render the 1983 permission invalid.
32. In R v Arfon Borough Council, ex parte Walton Commercial Group Ltd [1997] JPL 237, Buxton J (as he then was) commented that when Lord Widgery CJ referred to "physical impossibility" in the passage from his judgment in Pilkington quoted earlier, he cannot have meant physical impossibility in its narrowest sense since that would have been inconsistent with the more extensive exposition of the relevant principle earlier in his judgment. At the same time, Buxton J accepted that Lord Widgery CJ was emphasising that the question was whether the impossibility was of a physical nature within the ambit of the planning permission, rather than whether it was legally impossible. Following Pilkington, Buxton J identified the issue which arose in Arfon as being whether it was possible to implement the relevant planning permission "in the way in which that planning permission was envisaged when it was granted".
33. In Durham County Council v Secretary of State for the Environment and Tarmac Roadstone Holdings Ltd (1989) 60 P&CR 507 CA, permission was granted in 1947 ("the 1947 permission") for the quarrying of sand and gravel. Among the conditions attached to the 1947 permission was a condition for restoration of the site. In 1957 the rural district council applied for change of use to "controlled tip for refuse". The planning authority granted the application. Once again, a condition for restoration was imposed, in the following terms:

"That any hollows due to subsidence of filled areas shall be levelled up and the final surface of the whole area shall be compacted, soiled and finished to even gradients permitting natural drainage."

34. Tipping continued until 1976, by which time some 42 per cent of the site had been tipped. There is no suggestion in the reported facts of the case or in the judgment of Neill LJ that on completion of tipping the condition for restoration which I have just quoted was not complied with, and it must accordingly be assumed that it was complied with. In 1982 a company in the Tarmac group applied unsuccessfully for permission to extract sand and gravel. At that stage, neither the company nor the planning authority was aware of the 1947 permission. In 1984 the company discovered the 1947 permission, and in 1986 it commenced quarrying. The planning authority served an enforcement notice. The company appealed to the Secretary of State. The Secretary of State accepted the inspector's recommendation that the appeal be allowed, on the basis that the 1947 permission had not been extinguished or brought to an end by the permission for the change of use granted in 1957. The High Court dismissed the planning authority's appeal. The planning authority appealed to the Court of Appeal.
35. In the Court of Appeal, addressing the issue as to the continuing validity of the 1947 permission, Neill LJ (with whom Butler-Sloss and McCowan LJJ agreed) concluded that the correct approach was that which was formulated in Pilkington. Neill LJ continued at page 513:

"The question for consideration in cases involving a permission for operational development is: is it possible to carry out the development covered by the permission on which it is now sought to rely having regard to that which has been done or authorised to be done under the permission which has already been implemented: Or, to use the words of the judge, the question is:

"...whether the development contemplated by the earlier-permission could be carried out consistently with the development sanctioned by the implemented permission.

The decision in Pilkington's case has been approved by the Court of Appeal and also by Lord Scarman in the Pioneer Aggregates case where he said:

[It] was certainly a common-sense decision, and, in my judgment correct in law. The Pilkington problem is not dealt with in the planning legislation. It was, therefore, necessary for the courts to formulate a rule which would strengthen and support the planning control imposed by the legislation, and this is exactly what the Divisional Court achieved. There is, or need be, no uncertainty arising from the application of the rule. Both planning permissions will be on a public register: examination of their terms combined with an inspection of the land will suffice to reveal whether development has been carried out which renders one or other of the planning permissions incapable of implementation.

It will be remembered that it was argued in the alternative on behalf of the council that even if one applied the Pilkington test the 1947 decision can no longer be relied upon. Thus, it was said, it cannot be implemented according to its terms. I am satisfied, however, that this argument also must fail. In the decision letter dated March 14, 1988, the Secretary of State referred to the findings of fact made by the inspector. These findings included a finding that:

the extraction of sand and gravel from areas covered by subsequently tipped material and by natural overburden would be both practicable and viable.

The Secretary of State decided that the 1947 permission for quarrying is still capable of being implemented. The judge came to the conclusion that he could find no error of law by the Secretary of State in his application of the law to the facts of this case or in his decision that the 1947 permission is still capable of being implemented.

I agree with the judge. The Secretary of State applied the Pilkington test to the facts. This was the right test to apply. I can see no error of law or any error in the application of the law to the facts."

36. The Court of Appeal accordingly dismissed the planning authority's appeal.
37. I turn next to the judge's judgment in the instant case.
38. After identifying the issue which arose for decision, the judge summarised the arguments which had been presented to him.
39. For the appellants, the argument before the judge (as in this court) was that once it was conceded by the Council that it was both practical and viable to extract clay from the Area of Overlap, and that this would not offend any condition of the 1956 permission, the Council's case that such extraction was physically impossible must fail.
40. Referring to the argument on behalf of the Council, the judge noted that the Council relied on four factors as demonstrating incompatibility between the 1956 permission and the 1987 permission, viz. (1) the difference in the duration of the respective permissions; (2) the difference in the nature of the minerals to be extracted; (3) the fact that in its successful appeal to the Secretary of State, which led to the grant of the 1987 permission, the Council accepted a restriction on the amount of clay which could be extracted from the Streets Lane site; and (4) "the phased comprehensive and timely restoration provisions of the later consent."
41. The judge then turned to the authorities, starting with Pilkington. On the fourth page of his judgment (page 16 of the appeal bundle) the judge said this:

"I respectfully adopt the approach of Lord Widgery in [Pilkington]. It is necessary to look back at the earlier permission and see whether in fact that development can now physically be carried out consistently with the development sanctioned in the implemented [permission]."

42. I note at this stage that Mr Alan Evans, for the appellants, accepts (indeed avers) that the Pilkington approach of inconsistency in the sense of physical impossibility (as that concept is explained by Lord Widgery CJ) is the correct approach in the instant case, and that the judge in the instant case correctly identified the issue which arose for his decision. Mr Evans submits, however, that having identified the correct approach, the judge failed to follow it.
43. The judge then referred to five other authorities, including Pioneer, Prestige, Arfon and Durham.
44. Referring to Durham, the judge said this (on the fifth page of his judgment, page 17 of the appeal bundle):

"It was held that the extraction of sand from subsequently tipped areas was both practicable and viable. In my judgment, practical and viable here meant that the extraction of sand was not inconsistent with the later change of use to permit tipping." [My emphasis]

45. After referring to the authorities, the judge continued (on the sixth page of his judgment, page 18 of the appeal bundle):

"So the question is whether, in the context of the implementation of the permission for Opencast coal removal and return to agricultural use permitted by the 1987 permission, the mining of clay in the Area of Overlap has been rendered physically impossible.

In my judgment, it has. It is physically impossible to get to the clay without undoing all the work of reinstatement and aftercare that formed such an important part of the Streets Lane 1987 permission. Anyone knowing of the two consents and then going to the site would conclude that the first could not be activated when, pursuant to the second, the site had been restored and the area duly returned to agriculture. In my judgment the impossibility does not arise out of the duration of the permission, or the nature of the mineral extraction or the restriction on clay extraction in the Streets Lane permission. It arises out of the impossibility of carrying out the clay extraction in the context of the later permission.

In my judgment, in coming to this conclusion I am not stepping outside the terms of the later consent. That consent provided in terms for a return of the site to agriculture and, further, it set out the detailed basis for restoration and aftercare which has made it impossible to exercise the earlier permission."

In my judgment the Claimant is entitled to the declaration it seeks."

46. Mr Evans prefaces his submissions by reminding us that a planning permission runs with the land (see section 75(1) of the 1990 Act, quoted earlier). He emphasises that in the instant case it is accepted that the extraction of clay from the Area of Overlap is both practicable and viable, and that it is conceded by the Council, by its inclusion of the remainder of the Campions Wood site apart from the Area of Overlap in its "first list" pursuant to Schedule 13 to the 1995 Act, that the 1956 permission remains extant and permits extraction in the remainder of the Campions Wood site. He reminds us that, as Lord Scarman emphasised in Pioneer, planning control is the creature of statute, and that Parliament has provided a comprehensive planning code. He further reminds us that when granting the 1987 planning permission the Council had, as he put it, ample weapons in its armoury to bring the 1956 permission to an end, e.g. by seeking a planning obligation under section 106 of the 1990 Act or by modifying or revoking the 1956 permission.
47. As to the authorities, Mr Evans submits that it is clear from Lord Widgery CJ's reasoning in Pilkington, and from Lord Scarman's endorsement of that reasoning in Pioneer, that the correct test where there are two inconsistent permissions is not that of inconsistency as between the two permissions, but that of the impossibility of carrying out the relevant development pursuant to one permission given the implementation of the other. He submits that when, in Pioneer, Lord Scarman referred (at page 145A and C) to the earlier permission being "incapable of implementation" he was doing no more than express in different words the "physical impossibility" test applied by Lord Widgery CJ in Pilkington. In particular, Mr Evans submits, relying on Prestige, that the fact that the carrying out of development pursuant to an earlier permission may involve a breach of a condition attached to a later permission is not a ground for holding that the earlier permission is no longer valid. The focus in the instant case, he submits, is on the 1956 permission; and the relevant question is whether, given the implementation of the 1987 permission, it remains physically possible for the 1956 permission to be implemented according to its terms.
48. On the facts, Mr Evans submits that there can be only one answer to that question: nothing that has been done pursuant to the 1987 permission has rendered the 1956 permission "capable of implementation" in the Pilkington sense.
49. In support of that submission, Mr Evans naturally relies heavily on Durham. He submits that there is a direct parallel to be drawn between the facts of Durham and those of the instant case. He submits that the judge failed to deal adequately with Durham in his judgment, and that the judge's equation of practicability and viability with inconsistency (in the passage on the fifth page of his judgment, quoted earlier) demonstrated a misunderstanding of Neill LJ's judgment which led him into error.
50. Mr Evans submits that the ratio of the judge's decision is that the 1956 permission is no longer valid because development carried out pursuant to it would necessarily involve the undoing of the works of restoration carried out by the NCB pursuant to the 1987 permission. He submits that that reasoning is contrary to the authorities, and in particular to Pilkington (as endorsed by the House of Lords in Pioneer).
51. Mr David Park, for the Council, submits that, properly interpreted, both Pilkington and Pioneer recognise that an earlier permission may be rendered invalid if development carried out pursuant to it would involve a substantial breach of a condition attached to a later permission which has been implemented. In support of this submission he relies in particular on Lord Widgery CJ's reference in Pilkington (at page 1532A) to:

" ....seeing whether in fact that development there contemplated can now be carried out consistently with the development sanctioned in the implemented application number 756."

52. Mr Park submits that Mr Spence QC's decision to the contrary in Prestige was based on a misunderstanding of Pilkington and Pioneer, was wrong and should be overruled. He further submits that Buxton J in Arfon proceeded on the footing that the possibility of a breach of a condition in a later permission was a relevant consideration.
53. On the facts, Mr Park stresses the importance which the Council plainly attached to the need for appropriate restoration of the Streets Lane site on completion of the works permitted by the 1987 permission. He submits that restoration works are to be regarded as an integral part of the development itself, and that since a reactivation of the 1956 permission would inevitably lead to the destruction of the restoration works carried out by the NCB on the Area of Overlap, the judge was correct to conclude that the 1956 permission was no longer valid. In support of this submission Mr Park referred us to a report made to a sub-committee of the Council relating to the NCB's application (in the event, its second application) which led to the grant of the 1987 permission, in which considerable emphasis was placed on the environmental impact of the proposed mining operations, with particular reference to the need to avoid importation of waste to infill the site. He also referred us to the inspector's report to the Secretary of State dated 24 September 1986, in which the inspector records that the NCB had indicated that in its view there was no need to import fill (see paragraph 5.81). In paragraph 12.16 of his report, the inspector endorsed the view of the local authorities that it would be wrong to allow the importation of fill, and that if fill was required it should come from within the site. These considerations, Mr Park submits, reinforce the significance of the restoration and aftercare process carried out by the NCB on the Area of Overlap, all of which would be destroyed if extraction were to take place pursuant to the 1956 permission.
54. I accept Mr Evans' submissions.
55. In Pilkington Lord Widgery CJ made it abundantly clear, as I read his judgment, that in considering whether an earlier permission was still valid, it was irrelevant that the carrying out of the permitted development might breach a condition attached to a later permission; rather, the correct test was whether it was physically possible to carry out that development in accordance with the terms of the earlier permission. This is a theme which runs through the entirety of Lord Widgery CJ's exposition on page 1532 of Pilkington (quoted earlier), and at the foot of that page Lord Widgery CJ says in terms that his conclusions:

"... do not in any way depend on the fact that the building on site A may have been a breach of the condition in number 756." [I.e. the later permission].

56. The ratio of the decision in Pilkington, in my judgment, is that development pursuant to the earlier permission could not be carried out in accordance with its terms since the earlier permission contemplated that the remainder of the site would consist of a smallholding, whereas development carried out in implementation of the later permission -- i.e. the building of a house on the centre of the site -- had (to use Lord Scarman's word in Pioneer at page 145A) "destroyed" the smallholding. I respectfully agree with the observations of Buxton J in Arfon on the concept of physical impossibility in the context of Pilkington. It was physically possible to build the bungalow on site A, since that part of the site remained vacant. But it was not possible to carry out the physical development permitted by the earlier permission in a manner which accorded with the terms of that permission. As Lord Widgery CJ said at page 1532D:

"It is not now possible to build a bungalow on [site "A"] subject to those terms." [My emphasis.]

57. I also agree with the conclusion and reasoning of Mr Spence QC in Prestige. In particular, I agree with him that in using the expression "incapable of implementation" in Pioneer (see ibid. page 145A and C) Lord Scarman was doing no more than express the doctrine established in Pilkington in (as Mr Spence put it at page 133E) "virtually the same words". As Mr Spence QC rightly said, the true doctrine in Pilkington is that where there are inconsistent planning permissions the question to be addressed is, to use the words of Lord Scarman at page 145C:

"... whether development has been carried out which renders one or other of the planning permissions incapable of implementation."

58. And that in turn means seeing whether it is still possible to carry out the development authorised by the relevant permission in accordance with the terms of that permission, and not by reference to conditions attached to another permission.
59. Mr Evans' reliance on Durham is, in my judgment, well-placed. On the assumption that the restoration condition in the later permission was complied with (an assumption which, as indicated earlier, is one that in my judgment has to be made), the facts in Durham are on all fours in all material respects with the facts of the instant case. But even if one does not make that assumption, Neill LJ's reasoning in Durham is in my judgment directly applicable in the instant case. Nor can I see any justification for the interpretation placed upon that reasoning by the judge in the instant case, in equating considerations of practicability and viability with that of inconsistency. Neill LJ makes it clear that he was applying the test of whether the earlier permission was still capable of being implemented. I agree with Mr Evans that the judge in the instant case failed adequately to analyse the decision in Durham and to apply it to the facts of the instant case.
60. The ratio of the judge's judgment in the instant case is contained in the second sentence of the penultimate paragraph on the sixth page of his judgment (page 18 of the appeal bundle), which reads as follows:

"It is physically impossible to get to the clay without undoing all the work of reinstatement and aftercare that formed such an important part of the Streets Lane 1987 permission."

61. In my judgment that reasoning is, for the reasons I have given, contrary to the doctrine established by Pilkington and Pioneer and applied in Durham. The fact that development in implementation of the 1956 permission will involve the undoing of the restoration works undertaken by the NCB in compliance with the restoration condition attached to the 1987 permission does not answer the question which the judge correctly posed on the sixth page of his judgment (page 18 of the appeal bundle), viz: Whether, in the context of the implementation of the 1987 permission, the mining of clay in the Area of Overlap has been rendered physically impossible. I agree with Mr Evans that on the facts of the instant case that question must be answered in the negative.
62. I would allow this appeal.
63. LORD JUSTICE LONGMORE: I agree.
64. Mr Park (for Staffordshire County Council) submitted that the true test of whether an earlier planning permission had ceased to be effective after the grant of a second planning permission which had been partly or wholly implemented was whether the first planning permission could be implemented consistently with the second permission. If, therefore, the second planning permission had conditions attached to it, such as the restoration of the land after quarrying had taken place, and if in implementation of the earlier permission it would be necessary to reverse the restoration of the land that had occurred pursuant to the second permission, the first permission must be deemed to be no longer effective.
65. In my judgment it is not open to this court to accept Mr Park's submission in the light of authorities binding on us. The case law begins with Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 with the passages cited by my Lord. The judgment of Lord Widgery CJ in that case was approved by the House of Lords in Pioneer Aggregates (UK) v Secretary of State for the Environment [1985] AC 132 and followed by this court in Durham County Council v Secretary of State for the Environment (1989) 60 P&CR 507. These authorities state that the essential question is whether it is possible to carry out the development authorised by the first permission, having regard to what has been done or has been authorised to be done under the second permission which has been implemented. They do not support a submission that mere inconsistency or incompatibility with a second planning permission means that the first planning permission cannot be implemented.
66. Mr Malcolm Spence QC, sitting as a deputy judge of the Queen's Bench division, expressly rejected the submission now put forward by Mr Park in Prestige Homes (Southern) Ltd v Secretary of State for the Environment [1992] 3 PLR 125. Mr Park submitted that this decision was wrong and we should overrule it. Not only would I decline that invitation, but I would take this opportunity to approve that decision and to say that it should be followed. As Mr Spence QC said at page 134D:

"... the local planning authorities are perfectly well protected by the present system. When considering an application in respect of a site where there already exists a permission, if they wish to grant permission, they can readily ensure, if they so desire, by one of the means available to them (eg by a section 106 agreement or by revocation) that the earlier permission shall cease to have effect."

67. It is true that in Pilkington (at page 1531H), Lord Widgery CJ said:

"I do not regard it as part of the duty of the local planning authority itself to relate one planning application or one planning permission to another to see if they are contradictory. Indeed I think it would be unnecessary officiousness if a planning authority did such a thing."

68. That does not, however, mean that a planning authority would not be well advised in appropriate cases to be aware of earlier permissions when granting a subsequent permission and to consider whether it is sensible that all such permissions should stand together as existing permissions.
69. LORD JUSTICE PETER GIBSON: I also agree that this appeal must be allowed. The judge rightly indicated that he would adopt the approach of Lord Widgery CJ in the Pilkington case. But in echoing what Lord Widgery CJ said ([1973] 1 WLR 1327 at page 1532A), as the judge did when he said that it is necessary to look back at the earlier permission and see whether in fact that development can now physically be carried out consistently with the development sanctioned in the implemented application, the judge would not have adopted Lord Widgery CJ's approach unless he realised what Mr Malcolm Spence QC pointed out in the Prestige case [1992] 3 PLR 125 at 133 that those words were intended to introduce everything which Lord Widgery CJ was about to deal with in detail in the following three paragraphs, that is to say whether the earlier permission could be carried out. The applicable test is one of physical possibility.
70. The judge's treatment of the Durham case fastened on the question posed by the Deputy Judge in that case, which again echoed the words of Lord Widgery CJ at page 1532A relating to consistency with the development sanctioned in the implemented application. But it is clear that this court in Durham treated that as another way of posing the question which it articulated at page 513: "is it possible to carry out the development covered by the permission on which it is now sought to rely having regard to that which has been done, or authorised to be done, under the permission which has already been implemented?" Neill LJ decided the case on the fact that the earlier permission was still capable of being implemented. Mere inconsistency between the two permissions in my judgment is not enough to show that the earlier permission is not capable of being implemented. What must be shown is the physical impossibility of carrying out the development covered by the earlier permission.
71. To be fair to the judge, he did use the language of physical impossibility when he gave the reason for his conclusion in the sentence which my Lord, Jonathan Parker LJ, has cited, when the judge referred to the physical impossibility of getting to the clay without undoing the work of reinstatement and aftercare. But in my judgment that impossibility is not the relevant impossibility to satisfy Lord Widgery CJ's test. It is not the physical impossibility of mining the clay. It is conceded that that is still possible in accordance with the terms of the earlier permission and without offending any condition of the earlier permission. It is the impossibility of carrying out the development permitted by the earlier permission without something else being done first, that is to say undoing what had been required to be done in conformity with the conditions of the later permission. But the conditions attached to the later permission for development do not govern the earlier permission. Lord Widgery CJ in Pilkington expressly stated that he did not base his decision on any breach of the later permission. In the Durham case it would not have been possible to win the sand under the tipped material without undoing what had been done pursuant to the later permission, including the restoration work which we must assume was carried out to comply with the specific condition attached to that permission. In Prestige the fact that the later permission required trees to be retained did not make the implementation of the earlier permission impossible, even though the trees were not being retained. Accordingly, I respectfully disagree with the judge.
72. For these as well as the reasons given by my Lords, I too would allow the appeal, set aside the order of the judge and make the declaration sought in the Appellant's Notice.
Order: Appeal allowed as above with costs summarily assessed at £20,827.25 as agreed. Costs below to be subject to detailed assessment.