COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MOORE-BICK)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE GAGE
| STANCLIFFE STONE COMPANY LIMITED
|- and -
|PEAK DISTRICT NATIONAL PARK AUTHORITY
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Corner QC & Mr Andrew Fraser-Urquhart (instructed by Messrs Nabarro Nathanson, 1 South Quay, Victoria Quays, Sheffield S2 5SY) for the Respondent
Crown Copyright ©
Lord Justice Chadwick :
The schedule 13 review scheme
"(a) in a case where it appears to the mineral planning authority to be expedient to treat as a single site the aggregate of the land to which any two or more relevant planning permissions relate, the aggregate of the land to which those permissions relate; and
(b) in any other case, the land to which a relevant planning permission relates."
And "relevant planning permission" means any planning permission granted after 30 June 1948 for minerals development.
"'dormant site' means a Phase I or Phase II site in, on or under which no minerals developments has been carried out to any substantial extent at any time in the period beginning on 22nd February 1982 and ending with 6th June 1995 otherwise than by virtue of a planning permission which is not a relevant planning permission relating to the site."
6 June 1995 was the date on which the amendments to the Environment Bill which now form section 96 of, and schedules 13 and 14 to, the 1995 Act were first published.
"(1) Subject to paragraph 8(11) above, where no application under paragraph 9 above in respect of an active Phase I site . . . has been served on the mineral planning authority by the date specified in the first . . . list as the date by which applications under that paragraph in respect of that site are to be made . . . each relevant planning permission relating to the site shall cease to have effect . . . on the day following the last date on which such application may be made.
. . .
(3) . . . no relevant planning permission which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless
(a) an application has been made under paragraph 9 above in respect of that site; and
(b) that permission has effect in accordance with sub-paragraph (6) of that paragraph.
(4) A relevant planning permission which relates to a Phase I or II site not included in the first list shall cease to have effect, except insofar it imposes any restoration or aftercare condition, on the day following the last date on which an application under sub-paragraph (1) of paragraph 6 above may be made in respect of that site unless an application has been made under that sub-paragraph by that date . . ."
Paragraph 9(6), as I have said, provides that, where an application is made to the authority under paragraph 9 in relation to a dormant site and the authority determines the conditions to which the relevant planning permission relating to that site is to be subject, the permission has effect thereafter subject to those conditions.
"(1) Any person who is the owner of any land . . . may, if that land is not a mineral site included in the first list and does not form part of any mineral site included in that list, apply to the mineral planning authority for that land . . . to be included in that list.
(2) An application under sub-paragraph (1) above shall be made no later than the day upon which expires the period of three months from the day when the first list was first advertised in accordance with paragraph 5 above.
(3) Where the mineral planning authority consider that
(a) the land . . . is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application; or
. . .
(4) On acceding . . . to an application made under sub-paragraph (1) above, the mineral planning authority shall amend the first list . . .
. . . "
The paragraph includes provision for an appeal to the Secretary of State from the authority's refusal of an application under sub-paragraph (1).
The list of mineral sites prepared by the authority
" I have had sight of the 2nd draft of the proposed 'guidance Notes' and I wrote to Mr Ashbourne at your Department on 19 and 21 July. At that time I expressed concern that the Act would fail to tackle this problem of old consents effectively. Unfortunately, our fears are being justified already I write to up-date you on developments at Endcliffe Quarry on Stanton Moor (which was quoted as example No 4 in my letter of 212 July).
This gritstone quarry is covered by a Minister's Consent of 6 February 1952 (copy attached reference 1898/9/20). This consent covered 4 quarries widely scattered across Stanton Moor location plan attached. Endcliffe and Lees Cross Quarries have been 'dormant' for at least 30 years (as far as we can establish at present). The sites are extremely prominent, are now substantially covered by trees, are a useful wildlife habitat, and are reached by totally inadequate steep, narrow, access roads, through either Rowsley or Stanton Lees and Darley Bridge.
For many years the Board has sought voluntary revocation, modification, or other negotiations with the successive leaseholders, but without success. In June 1995 the leases were assigned to Stancliffe Stone Company. On 8 August 1995, machine work and tree felling commenced at Endcliffe Quarry to reopen the overgrown access road apparently in readiness for either quarrying (or possibly quarry was for tipping there is an excess waste problem at their other site at Dale View Quarry, currently subject to Enforcement Action).
While the Board will strictly enforce whatever degree of control it currently has under the 1952 consent, the case highlights problems with the potential operation of the Environment Act . . .
. . .
2. Definition of 'Site' for Environment Act purposes
Para 2(b) of Schedule 13 defines a mineral site as ' .. the land to which a relevant planning permission relates'. On a literal interpretation this would seem that a multi-site permission, or one covering a large area, has to be treated as a single site for Environmental Act purposes. The latest draft guidance advises that if part of such a site is active, then the whole site should be treated as active. A physical barrier or physical separation by distance did not appear to be a reason for separate treatment.
I would strongly request that this part of the draft guidance is reconsidered so that long dormant physically separated, and clearly defined, parts of a large site can be subject to strict environmental and traffic controls through a working scheme without the risk of a compensation claim for restricting working rights.
I trust you will seriously and urgently consider these points prior to publishing the Guidance Note."
"In all cases, the mpa should have regard to what constitutes a sensible planning unit (having regard to the original intent of the planning permission or permissions where known) and whether unworked land comprised in one permission forms part of the mineral reserves for the operation undertaken on the worked land comprised in another permission. Where the unworked land forms part of such reserves, it should be regarded as part and parcel of the same site and should not be separately classified as a dormant site. In any event, where land covered by a single permission is separated by a physical barrier it is not open to the mpa to treat it as more than one site, although different working programmes and different conditions may be applied to different areas of land within the same site "
"[The Director of Planning] mentions the possible resumption of work at Endcliffe Quarry. The Act defines dormant sites retrospectively as those where there has been no substantial working between 22 February 1982 and 6 June 1995. Any dormant quarry which reopened after 6 June 1995 will not lawfully be able to carry on working after the new provisions have been commenced until full modern planning conditions have been approved by the mineral planning authority (mpa). The mpa will be able to enforce against unlawful working in the normal way. No work undertaken by an operator in the months between 6 June 1995 and commencement will count for the purposes of any classification of a site as dormant. We hope to commence the mineral planning provisions in the Act on 1 November.
. . .
I am confident that the new requirement introduced by the Act will enable significant improvements to be made to these old minerals permissions whether 'active' or 'dormant' to safeguard the environment and protect local amenity."
A copy of that letter was sent on to the authority's Director of Planning. He could have been forgiven for thinking that the Department, at least, was encouraging the authority to treat Endcliffe Quarry as a dormant site, notwithstanding the fact that the permission of 6 February 1952 (a copy of which had been sent to the Department) covered other quarries.
"Once the list has been published:
- If a site has been inadvertently omitted, a land or mineral owner has three months to apply for its inclusion (otherwise the consent will lapse).
- There is a right of appeal against a refusal to include a site.
- An owner can apply (within 3 months) to postpone the date by which a scheme for an active site has to be submitted (in cases where existing conditions are considered satisfactory).
- There is no right of appeal against the actual classification of a site as 'dormant' or 'active'.
- For dormant sites no mineral extraction can restart after 1 November 1995 until a scheme of new conditions has been submitted and approved. No compensation is payable for any new conditions imposed.
- If no scheme is submitted for an active site by the specified date then the permission will cease to have effect (except for the restoration and aftercare requirements)."
It is not suggested that that was not an accurate summary of the position. The notice set out a number of the statutory definitions; including, in particular, the definitions of "Mineral Site" ("The land to which a relevant planning permission relates") and "Dormant Site" ("A site in, on or under which no minerals development has been carried out to any substantial extent at any time in the period beginning 22 February 1982 . . .").
". . . there may be borderline cases where an owner or operator might object if a site is classified as dormant. There is no right of appeal against an mpa's classification. Where therefore it is clear to the mpa that there could be a difference of opinion as to whether a site is to be classified as dormant, they should discuss the issues with the owners and operators of the site and should take into account all material evidence and representations before reaching their decision as to whether to classify the site as dormant in the first list of sites. Equally, owners and operators who are in any doubt as to whether or not their site will be classified as dormant should consult the mpa at the earliest opportunity. Mpas are reminded of their duty to act reasonably on the basis of the factual evidence in reaching their decision. In borderline cases where, after consultation with the land and relevant mineral owners, a mpa decide to classify a site as dormant against the owners representations they should give reasons for their decision in writing:"
There is no evidence that any consultation took place in the present case. But it may be that there was no difference of opinion as to the dormant status of Endcliffe and Lees Cross Quarries (on the facts) if those quarries were treated (together) as a separate site; and it does not seem to have occurred to Stancliffe (at the least) at that time that those quarries might be treated (with the other four quarries for which permission had been granted by the 1952 letter) as part of a larger single site.
"A site is only included in the list if the land has the benefit of a 'relevant planning permission' for mineral working granted before 22 February 1982. The list classifies each site as either 'dormant' or 'active Phase I'.
Where a site is classified as 'dormant', no development consisting of the winning and working of minerals or involving the depositing of mineral waste may lawfully be carried out until new planning conditions have been submitted to, and approved by, the Board.
. . .
If you are the owner . . . of a site where there is a valid relevant planning permission for mineral working and you believe that land has been incorrectly omitted from the list, you may apply to the Board by 26 April 1996 for the land to be included in the list as an additional site, or as an additional part of a site already included in the list. If you do not do so, all relevant planning permissions for mineral working relating to that land will cease to have effect . . . "
"M3902 Dale View/Palmers Pilhough, Stanton Moor Gritstone quarrying/tipping
M601b Birchover/Stanton Park Gritstone
M5696a Dungeon and Barton Hill Quarries Gritstone"
That list of dormant sites included the entry:
"M5695 Lees Cross/Endcliffe, Stanton Lees Gritstone"
Stancliffe's applications for the determination of conditions
"1898/9/20 06.02.52 Mineral extraction/Quarry waste
NP/WED/690 20.08.90 Tip stabilisation"
Pursuant to that application conditions were determined by the authority on 30 April 1997.
"We have been instructed by Stancliffe Stone Company Ltd to submit to your Authority a scheme of operations and planning conditions to permit the re-commencement of mineral extraction operations at the above sites as required by the Environment Act 1995. Both quarries are registered as 'dormant' and are subject of a valid planning permission 1898/9/20 issued on 6 February 1952."
The letter continued:
"As this is an application for the re-opening of a dormant quarry, registered under the Environment Act 1995, no planning application fee is required."
The only planning permission listed under paragraph 1.6 of the Application Form was:
"1898/9/20 6 February 1952"
The challenge to dormant status
"Also attached, for your information, is the recently received opinion of Timothy Straker QC of 4-5 Gray's Inn Square. You will see from this emphatic opinion that the Mineral Planning Authority have acted improperly in classifying Endcliffe and Lees Cross a dormant quarry. It is active, phase 1."
"23. A 'mineral site' is defined by paragraph 1 of schedule 13 as 'the land to which a relevant planning permission relates'. The relevant planning permission is that single permission granted by the Minister on 6 February 1952, which granted consent for the working of a number of quarries. . . .
. . .
25 It is clear that the consent issued by the Minister on 6 February 1952 for the working of several quarries is a single planning permission having regard to the following factors:
- The express wording of the Minister's Decision Letter, which constitutes the planning permission, and which conspicuously identifies the permission as a single consent . . .;
- The single reference number given by the Minister to the planning permission [1898/9/20];
- The first condition attached to the planning permission which indicated that working at all the quarries for which permission was given should proceed from existing working faces;
- The express wording of the planning application, which has become by reference part of the permission, and which conspicuously identifies that a single planning application was made . . .
27. The 'mineral site' is thus of all the land permitted by that consent in 1952 to be developed for mineral extraction, including the quarry at Endcliffe and Lees Cross. There is no power to disaggregate the land to which a relevant planning permission relates in order to create more than one minerals site.
28. The Schedule states that a mineral site which is a Phase I site is active if it is not a dormant site. A dormant site is defined as a Phase I site in, on or under which no minerals development has been carried out between 22 February 1982 and 6 June 1995 (paragraph 1(1)).
. . .
30. Minerals development was carried on to a substantial extent at Dungeon, Barton Hill, Stanton Park and Dale View quarries in the relevant period, ie on part of the mineral site granted planning permission in 1952. As a result of the work undertaken to the quarries in that period the mineral site constituted by the 1952 permission must have been an active site. It is irrelevant that no work was carried out at Endcliffe and Lees Cross quarry during the relevant period. The Defendant should therefore have declared the whole mineral site, including Endcliffe and Lees Cross quarry, as an active site when it published its List of Mineral Sites."
It can be seen that the challenge was based on the grounds foreseen by the Director of Planning in his letter to the Department of 14 August 1995.
". . . the status of the quarry is of fundamental importance in the determination of conditions for the site, and the Authority will therefore take its own advice from counsel on the issue. . . . "
Whether, and if so when, the authority received advice from counsel on the question whether Endcliffe and Lees Cross Quarries had properly been included as dormant quarries in the list prepared in January 1996 does not appear from the documents now before the Court. But it is clear that advice had not been received by the date, 29 March 2004, when these proceedings were commenced by the issue of a claim form under CPR Pt 8.
The letter dated 6 February 1952
"We hereby make formal application for permission to quarry the areas shown on the enclosed plans, and which we enumerate as under:
No. 1. Dungeons & Barton Hill Quarries.
2. Stanton Park Quarry.
3. Endcliffe & Lees Cross Quarry.
4. Palmer's Pilhough Quarry.
5. Pringle Wood Quarry.
6. Stanton Quarry. (late Halls).
Present workings at these quarries are shown on the plans, marked BROWN, with land required for future development shown in BLUE, and the boundaries of the quarries, which include all reservations for future development, edged in RED. Tipping areas at the quarries are shown in GREEN, on the plans."
The letter goes on to explain that the quarries were occupied by the applicant's subsidiary companies and that they had been worked for the production of sandstone for over 100 years. The uses of the stone are then set out; and the letter continues:
"Although Sandstone is fairly generally found, the reason for the different locations of the quarries, is explained by the fact that at each different quarry, the texture, hardness, fineness, and colour of stone obtained, is entirely different, and it is only by the production of the various qualities, that we can fill the requirements for which the stone is used. No particular quarry can produce all the different qualities of stone, which we are called upon to supply."
It is, I think, fair to say that the thrust of the letter is that quarrying at the various quarries listed is carried on as a single commercial enterprise (albeit through three separate subsidiary companies). But, for my part, I do not think that the application provides any real assistance on the question whether the applicant was seeking a single planning permission or separate planning permissions in respect of the six areas enumerated. In particular, I do not think that the opening words "We hereby make formal application for permission to quarry . . ." can fairly be said to identify "conspicuously" that the applicant seeks a single permission. I doubt that the applicant gave any thought to the point; or that it was seen as a point of any importance at that time.
"Dungeon and Stanton Park quarries are immediately north-east of Birchover, while Lees and Endcliffe quarries are just over a mile north-east of Birchover, and Palmer's Pilhough quarry is about a mile and a half north-east."
There are set out a number of features which may be seen as reasons for the conditions which the Minister then goes on to impose. The operative paragraph is in these terms:
"In the exercise of his powers under the [Town and Country Planning Act 1947 and the Town and Country Planning General Development Order 1950] the Minister accordingly grants permission for the winning and working of sandstone in the area shown horizontally hatched and shown edged by a bold black line on the accompanying plans numbered 1 to 4 subject to the following conditions: . . . "
There follow nine enumerated conditions. Of those, three numbered (1), (8) and (9) - have general application. Of the others, the conditions numbered (2), (3) and (4) relate only to Dungeon and Barton Hill Quarries; the conditions numbered (5) and (6) relate only to Endcliffe and Lees Cross Quarries; and the condition (7) relates only to Palmer's Pilhough Quarry. The letter concludes with the statement that:
"This letter is issued as the Minister's formal decision on your Company's application."
"18 Two factors seem to me to be of . . . significance. The first is that although the applicant needed to work several quarries to satisfy a variety of different commercial requirements, there is nothing to suggest that the six quarries formed part of a single unit for commercial or operational purposes. I can well see that in some cases a single scheme may require the development of several parcels of land some of which may be quite widely separated from others. One example given . . . was the construction of a new university which might well involve the use of sites for halls of residence, laboratories and playing fields all at some distance from each other. It would not be surprising for there to be a single grant of planning permission covering the whole development precisely because the scheme could be regarded as an integral whole. The same might be true for many industrial developments. In this case, by contrast, there is no evidence of an integrated operation, as is evidenced by the fact that two of the sites, Pringle Wood Quarry and Stanton Quarry, were withdrawn because the applicant had no immediate plans to work them.
19. The second factor is the way in which the separate sites were identified and described both in the application and the permission. Consistently with the fact that no single integrated development was being proposed, the applicant submitted separate plans for each of the six sites for which permission was being sought. Similarly, when permission was granted it was granted in relation to four specific sites each separately identified by reference to its own plan. Although this is not of itself determinative, it does tend to support the conclusion that the applicant and the minister were both considering each site separately. That view is reinforced by the fact that where two quarries were adjacent or separated by a road and clearly formed one economic unit, as in the case of Dungeon and Barton Hill and Endcliffe and Lees Cross, they were treated as a single unit, both for the purposes of the applications and the permission."
"In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd  2 AC 803, 815-816. I respectfully think that it was unrealistic of Kay LJ to think that he was able to sharpen the test to produce only one right answer. In my opinion the commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law."
"The period within which proceedings seeking judicial review must be made is much more limited than that which applies to civil actions based on private rights for the very good reason that decisions of public bodies which may affect the interests of a wide range of people must be secure and should not be open to question long after the event. In the present case the claimant seeks by way of declaration to challenge the correctness of a decision by the Authority in relation to the listing of Endcliffe and Lees Cross quarries that was taken and published over eight years ago. Moreover, as I have already indicated, it has in the meantime been acted upon and accepted as correct. In my judgment it is far too late to challenge that decision now. Even if I were persuaded that the Authority had erred in drawing up the list of mineral sites in its area, I do not think it would be appropriate for the court to exercise its discretion in favour of granting relief by way of declaration."
". . . being an attempt to raise in an action for declaratory relief matters solely of public law which ought to have been dealt with by action for judicial review. The Court cannot proceed on the basis that no prejudice would be caused in the event that an extension of time for an application for judicial review was permitted."
To my mind, that issue lies at the heart of the present appeal. The issue had been raised before the judge as appears from paragraphs 39 to 44 of his judgment and, although he rejected the phrase "abuse of process" as an apt description of the claim in this case, it is clear that he had that issue in his mind when he made the observations which he did in paragraph 45 of his judgment.
"The . . . presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty."
"Secondly (or perhaps this is simply another way of expressing the same point), the issue in the present case is essentially one of construction, not one of fact in relation to which the court would normally expect to make a finding based on evidence. The presumption is concerned with the proof of facts, not with the meaning to be attached to documents that are before the court. The claimant is seeking to rely on the presumption to enable the list to be read as if it had been drafted in the way it ought to have been drafted. That is a fundamentally different exercise from that which the court had to undertake in the Calder Gravel case. In my view the presumption of regularity as described in that case provides no basis for giving the list a meaning contrary to that which it naturally bears."
In my view the judge was plainly correct to take the view that he did on this point.
"Because it is open to any person who is an owner or tenant of any part of the site . . . to apply for postponement of a review date or for the determination of new conditions, it is possible for there to be more than one application in respect of the same site. The Act provides that each eligible person may make only one application for postponement or determination of conditions. However, if there is more than one person eligible to apply and each makes a separate application, the mpa must treat all the applications as a single application served on the date when the latest application was made, and must notify each applicant of receipt of the applications and their determination accordingly. Where the mpa have already determined an application, then no further applications may be made by any person."
The effect, therefore, of the determination of conditions by the authority, on an application by any person who is the owner of any land which forms part of the single composite site to determine the conditions to which the relevant planning conditions relating to that site is to be subject, is that no further application to determine conditions can be made by any person who is the owner of other land which forms part of the same single site.
Lord Justice Buxton:
Lord Justice Gage: