QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CLIVE PAYNE|
|CAERPHILLY COUNTY BOROUGH COUNCIL|
Smith Bernal Reporting Limited,
190 Fleet Street,
London EC4A 2AG
Telephone No: 020-7421 4040
Fax No: 020-7831 8838
Official Shorthand Writers to the Court)
MR JARMAN (instructed by the Legal Department of Caerphilly County Court) appeared on behalf of the Defendant.
Crown Copyright ©
"1. The mineral site to which this application relates is the land at Nelson Road, Senghenydd, Caerphilly formerly the tipping ground of the Universal and Windsor Collieries, more particularly delineated on the map or plan enclosed and attached to this application and edged in red on that map or plan.
2. The APPLICANT is the owner of the land described above and delineated on the map or plan attached to this application.
3. The 'RELEVANT PLANNING PERMISSIONS' relating to the site are as follows-
(a) The permission granted by the Caerphilly Urban District Council to the National Coal Board on the 30th day of MARCH 1955 [Code Number 1722]; and
(b) The permission granted by the Caerphilly Urban District Council to Mr Cyril James Ludlow on the 10th day of August 1961 [Code Number 4240].
4:THE CONDITIONS TO WHICH THE APPLICANT PROPOSES THE PERMISSIONS REFERRED TO SHOULD BE SUBJECT.
1. Any buildings or works authorised by this permission shall be removed, and any use of the land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2024.
2. The materials to be disposed of on the site shall include colliery rubbish, brick, stone, concrete and builders rubble.
3. Any of the materials on the site may be processed by machinery or otherwise within the confines of the site and exported from the site after processing.
4. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to in this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit.
1. Any buildings or works authorised by this permission shall be removed, and any use of land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2042.
2. The materials or minerals to be removed from the site may be processed by machinery or otherwise within the confines of the site.
3. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit."
"Section 96 and Schedule 13 para 1 and 2 of the [the Environment Act 1995] define a mineral site as being composed of relevant planning permissions ie extant permissions for mineral development. Permissions which were subject to a time limit on the duration of development were specifically excluded from the definition of a relevant permission if the time limit on duration had expired. Therefore the 'Ludlow' permission was not included on the First list and has now ceased to have effect (Schedule 13 para 6). Since no appeal was made to include the site on the list within the specified time the County Borough Council now have no authority to include the site even if it was disposed to do so. (R v North Lincolnshire Council, ex p Horticultural and Garden Products Sales (Humberside) Ltd 1997).
The permission for colliery waste tipping on the site was not subject to any such time limit on duration and was, therefore, included on the First List as a dormant site. An application may be made to determine new conditions for that permission (Schedule 13, para 9) prior to any recommencement of works on site. However the permission and new conditions would not authorise removal of spoil only renewed tipping of colliery waste.
I am, therefore, returning your application for determination of conditions."
The statutory framework
"development consisting of the winning and working of minerals, or involving the depositing of mineral waste."
"means any planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30th June 1948 for minerals development..."
"9(1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active Phase I or II site, apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject.
(2) An application under this paragraph shall be in writing and shall-
(a) identify the mineral site to which the application relates;
(b) specify the land or minerals comprised in the site of which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest;
(c) identify any relevant planning permissions relating to the site;
(d) identify, and give an address for, each other person that the applicant knows or, after reasonable inquiry, has cause to believe to be an owner of any land, or entitled to any interest in any mineral, comprised in the site;
(e) set out the conditions to which the applicant proposes the permissions referred to in paragraph (c) above should be subject; and
(f) be accompanied by the appropriate certificate (within the meaning of sub-paragraph (3)...below).
(6) Where the mineral planning authority receive an application under this paragraph in relation to a dormant site... they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subject.
(7) The conditions imposed by virtue of a determination under sub-paragraph (6) above-
(a) may include any conditions which may be imposed minerals on a grant of planning permission for minerals development;
(b) may be in addition to, or in substitution for, any existing conditions to which the permission in question is subject.
(9) Subject to sub-paragraph (10) below, where, within the period of three months from the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any relevant planning permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions.
(10) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month having from having received the application give notice to the applicant-
(a) stating that they are of such opinion; and
(b) specifying the further details which they require,
and where the authority to serve such a notice the period of three months referred to in sub-paragraph (9) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice."
"The carrying out of mining operations on land constitutes the carrying out of development of land and accordingly requires planning permission: see section 57 of the Town and Country Planning Act 1990 ('the 1990 Act'). This has long been the law. But only since the Town and Country Planning Act 1947 ('the 1947 Act') has there been an obligation on the part of planning authorities to keep registers of the grants of mineral planning permission and the quality and completeness of the registers so kept (in particular during the early years after 1947) often left much to be desired. In 1991 the dual need was recognised to have a definitive list of all extant mineral planning permissions and to update the conditions on which such permissions were granted. The legislative means of achieving these objects were the Planning and Compensation Act 1991 ('the 1991 Act')."
"[It] very much follows the pattern set by the 1991 Act in respect of mineral planning permissions..."
"This argument seems to me to misunderstand the role of the first list. It is a list of mineral sites, not a definitive list of relevant planning permissions. It is right that, at the stage of compiling the first list, the MPA has to consider whether a relevant planning permission or permissions exist in respect of a given site, but it need not identify those permissions in the list, merely whether the site is an active Phase I site, an active Phase II site or a dormant site... When an owner subsequently makes an application for determination of conditions under paragraph 9, he is required at that stage to identify 'any relevant planning permissions' relating to the site...
It is in that context that the undoubted duty of the MPA under paragraph 9(6) to determine conditions has to be seen. It is a duty to determine the conditions to which 'each relevant planning permission relating to the site is to be subject.' It has to be remembered that there may be more than one permission relating to the site. The MPA may not have identified them all when compiling the list. If an owner applies under paragraph 9 in respect of a site on the list, he can identify a permission or permissions additional to whatever the MPA had in mind when it included the site in the list. If this situation arises, the MPA must be entitled to consider whether such additional permissions are still valid or not. That continuing validity is part of the concept of a 'relevant planning permission', since it would be absurd to require a site to be included on the list merely because of a lapsed permission. But in the same way, it would be absurd to require the MPA to determine conditions for a lapsed permission. The MPA is entitled to consider the validity of any permission alleged in a paragraph 9 application to be a 'relevant planning permission' and to do so at that stage when it is dealing with that application."
"a 'mineral site' is defined by reference to 'relevant planning permission'. 'Relevant planning permission' means any extant planning permission other than an IDO or GDO permission for 'minerals development' which was granted after 13th June 1948. In this context 'minerals development' means development consisting of the winning and working of minerals involving the depositing of mineral waste. Permissions for development consisting of the winning and working of minerals granted prior to 1st April 1969 where the development permitted had not been done before 1st January 1968, and which had not been implemented on or before 1st April 1979 cease to have effect on 2nd April 1979 and should not be taken into account. Similarly permissions which have been revoked; permissions which are no longer capable of being implemented; permissions subject to a time period regarding commencement of the development which have not been begun before the time limit expired; permissions subject to a time limit on the duration of the development and that time limit has expired; and sites which have been worked out and restored should also be discounted."
The claimant's submissions
"1(1) Every planning permission for development[-
(a) consisting of the winning and working of minerals; or
(b) involving the depositing of mineral waste,] shall be subject to a condition as to the duration of the development.
(5) The condition in the case of planning permission granted or deemed to have been granted before 22nd February 1982 is that the [winning and working of minerals or the depositing of mineral waste] must cease not later than the expiration of the period of 60 years begining with that date."
The defendant's submissions
"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."
(see the speech of Lord Scarman at pages 140 to 141 of Pioneer Aggregates United Kingdom Limited v the Secretary of State for the Environment (1985) AC 132.) But where the Code is "silent or ambiguous" the courts have to resolve the difficulty.
"Every planning permission for development consisting of the winning and working of minerals shall be subject to a condition as to the duration of the development.
(5) The condition in the case of planning permission granted or deemed to have been granted before the commencement of section 7 of the Town and Country Planning (Minerals) Act 1981 is that the development must cease not later than the expiration of the period of sixty years beginning with the date of the commencement of that section."
"The working of the tip shall be carried out in a systematic manner in accordance with the scheme of working to be submitted to and approved by the Local Planning Authority in writing before the commencement of any work."
"... the levels to which excavations shall be carried out and the programming of such works."
MR JUSTICE SULLIVAN: Yes, now what order are you suggesting I make? One thought occurs to me that Mr Payne it is this, the council is a public body I have no reason to doubt that if I give a declaration in the terms set out in my judgment the council will simply abide by the law. If it does not then I can always put liberty to apply in case there was some problem about it, but if it is a public body like the council I would not normally go around making mandatory orders saying "they must do this or they must do that" because I would simply expect them to obey the law as declared by the Court. Subject of course to any appeal to the court. Subject to that. Would you be content with that?
THE APPLICANT: I would be.
MR JUSTICE SULLIVAN: Mr Jarman do you think that is an appropriate course for me to take.
MR JARMAN: I do, yes.
MR JUSTICE SULLIVAN: I do not think any more detailed declaration is necessary. There is no point in identyfying precise terms. I hope it is sufficiently clear from the terms of the judgment. The order of the court is that I grant declaratory relief in terms of the judgment. Anything else then, Mr Payne?
MR PAYNE: There tare two matters which I need to fetch up now. One is the part of my claim that refers to the losses that have been occasioned to me by the council's refusal to recognise this 1955 permission and the other is that of costs. I assume these will be dealt with at a later inquiry.
MR JUSTICE SULLIVAN: I can deal with costs now. So far as the claim for damages is concerned, I am reluctant to say that should go for further inquiry because that, as it were, is appropriate where one is satisfied that someone is definitely entitled to damages. I am not at all satisfied you are even if the council has made an error. I think I would require that to be dealt with in much more and argued out in much more detail. You do have real problems there I am afraid. It is not that I am afraid it just simply is the fact of the matter. I am thinking about how to deal with that. Do you have any suggestions Mr Jarman?
MR JARMAN: I would suggest that the matter is dealt with now. That I certainly would be our submission that there is no private law remedy in this regard. Your Lordship may, or may not, know that before these proceedings were brought Mr Payne did bring proceedings in the local County Court, including a claim for damages and there was a long running battle about whether the County Court had jurisdiction. Mr Payne claimed they did we claimed they did not. In the end it was decided in our favour. That is the long way of saying that the council do wish to see an end to this matter. It has been hanging over everybody's heads for some time. We say there is clearly no private law right to damages here ^^.
MR JUSTICE SULLIVAN: I am slightly uneasy about that. I cut Mr Payne off. I did not allow him to make any of his points about damages. I am very reluctant to decide there is no entitlement. I am perfectly fairly clear in my own mind about what the position is. I am concerned about the fairness to Mr Payne. One way I could deal with it would be simply to make no order on the claim for damages, to give Mr Payne liberty to apply but he would then have to think about whether he wanted to apply. If he did he would be be doing so at clear risk to himself so far as costs on damages is concerned. In other words, if he really thought that somehow against all the authorities he could get a claim for damages in he would be able to do so at his own risk but at least it would able him to put his arguments which so far today he has not had a chance to put.
MR JARMAN: I appreciate the fairness complaint.
Mr Payne has put his case very fully in writing. He calculates his losses. It is at page 28.
MR JUSTICE SULLIVAN: I have seen that. It is a very large sum.
MR JARMAN: They relate to loss of profit on ^^ red shale and loss of recycling revenue.
MR JUSTICE SULLIVAN: I do not want to go into the details about that. I think it is just a question of damages and how we deal with it. I am reluctant to rule it out point blank now. What I intend to do,
Mr Payne, is to give you just a declaration. I shall make no order on your application for costs. I shall give you your application for damages. I shall give you liberty to apply in respect of that claim, but, and this is not part of the judgment, I seriously advice you to consider seriously whether you can possibly sustain such a claim. In my judgment if you do pursue it you will be doing it at your own risk as to costs.
MR PAYNE: I understand.
MR JUSTICE SULLIVAN: There are plenty of people who think that they ought to get planning permissions out of local authorities or certificates. They do not because the council makes an error, they certainly do not get damages unless one can prove a very high threshold things like malice and so on, ^^ which is not inserted yet. Mere incompetence is not the same as malice or legal error.
MR PAYNE: I understand.
MR JUSTICE SULLIVAN: That is that. About your application for costs, I can deal with that today if you tell me what the costs are. You should disclose whatever they are to the council because it is much cheaper for me to deal with them if you do have a claim. In principle you should be entitled to your costs even as a litigant in person if you have been put to some costs. They have to be reasonable costs. I can deal with it today if there are particulars.
THE APPLICANT: I have no particulars.
MR JUSTICE SULLIVAN: I cannot deal with it today. Frankly it is not desirable for me to say costs go off for detailed assessments unless you have really incurred very substantial costs. I do not mean your damages point. You have not employed a lawyer. You are perfectly entitled, it seems to me, in principle certainly to the costs of copying documents and getting a bundle to the court, I simply do not know.
THE APPLICANT: Could I invite you to make a legal assessment? You must be seeing these things all the time. Could I invite you to make an assessment which may be acceptable to the council and we can get ^^?.
MR JUSTICE SULLIVAN: You have come up here. You have had a train fair. You have to go back. You had to present things, I have no idea. I do not want to pluck a figure out of the air. It may well be there is a figure of a couple of £100 or something like that that the council could not sensibly resist it. I simply do not know what it is.
THE APPLICANT: I have done a huge amount of work on this. It has consumed a huge amount of time. If I cannot give a figure today what would be the result?
MR JUSTICE SULLIVAN: It would have to go off for detailed assessment unless I imposed a figure.
THE APPLICANT: I would be quite satisfied to accept any figure that you think is reasonable. How much Mr Payne were your train costs of coming up here?
THE APPLICANT: I came in the car it costs about a £100 a ticket from Cardiff.
MR JUSTICE SULLIVAN: You succeeded on half and failed on half. Mr Jarman, what do you want to say?
MR JARMAN: With respect it is not quite as simple as succeeded on half or failed on half. Mr Payne failed on what is on the court today under Gibbs J's order. (Inaudible)
MR JUSTICE SULLIVAN: Yes, I added in £50. I was instructed on the 1961 matter and ^^ your Lordship has dealt with the dealt with the 1955 matter.
MR JUSTICE SULLIVAN: Your point is six of one and half a dozen of the other. That is your point.
THE APPLICANT: Certain my point is that Mr Payne should not get any costs. If anything because the main matter here was the 61 matter as far as we were concerned with the hearing we should get some of our costs. I appreciate not all. The other matter I would put forward is this: Mr Payne has admitted to, there have been attempts to deal with this matter sensibly. All along the line Mr Payne stuck to his guns about the 1961 permission. That is what prevented an agreement about the 1955 conditions, otherwise an agreement could have been reached.
MR JUSTICE SULLIVAN: I do not want to go into the merits.
MR JARMAN: I know that. It was mentioned by Mr Payne. I properly thought I ought to put the council's views on that. Certainly it just underlines the point, so far as we were concerned today was about the 1961 permission which we have succeeded on.
MR JUSTICE SULLIVAN: Mr Payne, I think in all the circumstances that you have one some and lost some. You have lost the ones you were allowed to come here initially on. You have won the ones you have but, on the other hand, I appreciate that is important for you. Therefore my view is that the fair order for costs is no order for costs. Each of you go away and bear your own costs.
THE APPLICANT: I accept that absolutely.
MR JUSTICE SULLIVAN: No order as to costs, declaratory relief no order om the damages, liberty to apply in respect of it but a clear health warning from me on that. Any more for any more? You have an application?
MR JARMAN: Just one. That relates to the 1955 consent. It relates to the position about conditions and whether the application went further than ancillary conditions. I do apply for permission to appeal on that point. I would just be repeating my arguments if I went through them again. It is an important point for the council. In my view in my submission there is a reasonable prospect of success on that.
MR JUSTICE SULLIVAN: Do you want to say anything about that?
THE APPLICANT: I think you covered it adequately in your judgment.
MR JUSTICE SULLIVAN: So do I at least I hope I have. I am prepared to acknowledge that these are unchartered waters, there is not any clear authority on the subject. It does seem to me that the council can fairly say that that an appeal has a realistic as opposed to an insignificant prospect of success. I think permission to appeal ought to be granted.
THE APPLICANT: The problem for me is that all this is going to take a lot longer and every day that goes on I am not going to have any development rights.
MR JUSTICE SULLIVAN: I am sorry about that. It may be that me having given the council permission to appeal, but having decided against them at first instance, that you and the council will be able to get together and reach some form of agreement. I hope so in the light of what I said because each of you will be able to form a judgment as to whether what I have said is correct because the council appreciate that if they appeal on the 1955 permission you will have a right to cross-appeal on the 1961 permission. So each of you may stand to lose something. There is quite a powerful case for getting together.