England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Date Friday, 4th April 2002

Introduction

1. MR JUSTICE SULLIVAN: This application for judicial review is concerned with the manner in which the Defendant Council dealt with an application for approval of conditions (the application) made by the claimant under the Environment Act 1995 (the 1995 Act).

The facts

2. The application, dated 15th December 2000, was in the following terms (so far as material for present purposes):

"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.

PERMISSION (a)

Conditions

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.

PERMISSION (b)

Conditions

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."

3. A plan was attached to the application which identified the land, the subject of the application, edged red. The appropriate certificates, as to ownership, were also provided. The 1995 planning permission granted to the National Coal Board described the proposed development as "disposal of colliery rubbish". Planning permission was granted for the proposed development, subject to conditions which are not material for present purposes. The 1961 planning permission granted to Mr Ludlow described the proposed development as: "Removal of the tip." Planning permission was granted for that proposed development subject to a number of conditions which included condition 1: "This consent shall extend for a period expiring on 31st December 1971."
4. The defendant's control manager responded to the claimant's application by letter dated 19th December 2000 which said in part:

"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

5. Section 96 of, and schedule 13, to the 1995 Act make provision for the review of old mineral permissions. Section 96(6) defines "minerals development" as:

"development consisting of the winning and working of minerals, or involving the depositing of mineral waste."

6. For the purposes of schedule 13 a "mineral site" includes land to which a "relevant planning permission relates" (see paragraphs 1(1) and 1(2)(a)). A relevant planning permission:

"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..."

7. There is no dispute that the 1955 planning permission is a relevant permission. I will deal with the position relating to the 1961 planning permission in due course.
8. The schedule divides mineral sites into Phase 1 sites, Phase 2 sites and dormant sites. There is no dispute that the land comprised in the 1955 planning permission is a "dormant site" as explained in the council's letter dated 19th December 2000. Paragraph 9 of schedule 13 (so far as material) provides as follows:

"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."

Relevant Authorities

9. There is a useful description of the workings of the statutory scheme contained in R v North Lincolnshire Council ex parte Horticultural and Garden Sales (Humberside) Ltd [1997] 76 P & CR 362 (see Lightman J at pages 366 to 367). By way of introduction to the scheme of the legislation Lightman J said this:

"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')."

10. summarised the provisions of the 1991 Act and then turned to the 1995 Act saying that:

"[It] very much follows the pattern set by the 1991 Act in respect of mineral planning permissions..."

11. He identified a number of significant differences between the 1991 and the 1995 Acts which are not material for present purposes.
12. In R v Oldham MBC v Pugmanor Properties Ltd, ex parte Foster [2000] JPL page 111 Keene J, as he then was, considered an argument that the first list required to be produced by a Mineral Planning Authority under Schedule 13 should be seen as definitive of the relevant planning permissions. Rejecting that argument he said this, between pages 716 and 717:

"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."

13. Finally, in this context, I should refer to the guidance given in MPG 14 which seeks to explain the operation of the 1995 Act. Paragraph 12 of MPG 14 is as follows:

"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

14. The case advanced by the claimant, who appeared in person before me, was a model of brevity and clarity. In respect of the 1955 permission he submits that there is no dispute that it is a relevant planning permission for the purposes of paragraph 9(1); his application complied with all of the requirements set out in paragraph 9(2); the defendant failed to determine the conditions to which the 1955 permission should be subject within a period of three months; the council's letter of 19th December 2000 does not amount to a request for further information under paragraph 9(10) of the Schedule and therefore the defendant is to be treated as having determined that the 1955 planning permission should be subject to the conditions specified in his application: see paragraph 9(9) of the schedule.
15. The fact that the defendant disapproved of the conditions which he put forward, or felt they were inappropriate and/or inadequate, is irrelevant. The statute did not give the defendant power to refuse to entertain or simply to return his application. If it chose to take that course then it did so at its own risk in view of the express terms of paragraph 9(9).
16. The claimant made essentially the same submissions in respect of the 1961 planning permission. Although condition 1 provided that consent should expire on 31st December 1971, paragraph 9(1) of the Schedule did not qualify the term "relevant planning permission". A relevant planning permission was any planning permission granted after 1948 for minerals development, which included the depositing of mineral waste (see paragraph 1(1) of the Schedule and schedule 96(6) of the 1995 Act.) Paragraph 9(1) was not expressly limited to extant relevant planning permissions. Even if a planning permission became time expired, one could always seek planning permission under section 73 of the Town and Country Planning Act 1990 (the 1990 Act) for the development of the land without complying with the time limiting condition. Subsection (4) of section 73 prevents the making of such an application if development has not been begun within time, but there is no suggestion that the development permitted by the 1955 planning permission was not commenced within time.
17. In addition he submitted that the 1955 planning permission was still extant by virtue of the provisions of Schedule 5 to the 1990 Act, which deals with the duration of development. The relevant provisions of Schedule 5 are as follows:

"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."

18. Thus he submits whatever the position may have been in 1971 the position as at the date of his application was the 1955 planning permission was deemed to be subject to a condition that the development permitted must cease in 2042. The advice contained in paragraph 12 of MPG 14 had no statutory force in so far as Keene J accepted the proposition that a mineral planning authority could consider whether a relevant planning permission was valid in response to an application under paragraph 9(1) of schedule 13 he was in error, the point not having been directly in issue on the facts of the case before him.

The defendant's submissions

19. On behalf of the defendant, Mr Jarman QC conceded that schedule 13 did not expressly refer to extant relevant planning permissions, but he submitted that the views expressed in paragraph 12 of MPG 14 and by Keene J in the Oldham case were correct. The 1961 planning permission had ceased to be extant on 31st December 1971. If it was not "revived" by Schedule 5 to the 1990 Act for two reasons: firstly, it was not a planning permission for the winning and working of minerals, nor was it a planning permission for the depositing of mineral waste. By section 336(1) of the 1990 Act the winning and working of minerals did include the extraction of minerals from a mineral working deposit. But 1961 planning permission did not permit the extraction of minerals from the tip, it simply permitted "removal of the tip". Secondly, it was not the intention of Schedule 5 to the 1990 Act to revive minerals planning permissions which were no longer extant, but to impose an "end date" for all those mineral planning permissions which were without limit of time but still extant.
20. Turning to the 1955 planning permission, he submitted that paragraph 9(9) of Schedule 13 did not apply. The defendant had given the claimant notice of its decision on his application in the letter of 19th December 2000. It had rejected the application, as it was entitled to do. Although the 1955 planning permission was a relevant planning permission, the application form (see above) firstly, identified a site which extended beyond the land comprised within the 1955 planning permission; secondly, identified two relevant planning permissions, one of which the 1961 planning permission was no longer extant; and thirdly, proposed conditions which went beyond the scope of conditions appropriate on a minerals planning permission. He referred, in particular, to the claimant's suggested condition 2, under which the deposit of inter alia "builders rubble" would be permitted.
21. He accepted that the defendant was not entitled to return an application made under paragraph 9(1) merely because it disliked the conditions proposed by the applicant, or felt that they were inappropriate or inadequate, but he submitted that the position was different where the applicant had proposed conditions which extended the ambit of the permission beyond that of a minerals permission. If paragraph 9(9) of Schedule 13 applied, to the 1955 permission the prospect was an alarming one for the defendant since the conditions put forward by the claimant were inadequate and inappropriate in today's conditions. Even if the court considered that the council was not entitled to return the application in respect of the 1955 permission, the court had a discretion to refuse to grant relief and that discretion should be exercised in favour of the council.

Conclusions

22. It is convenient to begin with the 1961 planning permission. It is true that paragraph 9(1) in Schedule 13 does not refer to extant relevant planning permissions. Does that mean that an applicant can compel a mineral planning authority to determine conditions in respect of a mineral permissions which is no longer extant at the time of the application? In my judgment it does not. The starting point must, of course, be the statutory code itself and:

"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.

23. The statutory code is silent on the point raised by the claimant in respect of the 1961 planning permission, but in seeking to give effect to the intention of Parliament, as evinced by the statutory code considered as a whole, the application of ordinary common sense leads inevitably to the conclusion that Parliament did not intend that paragraph 9(1) should apply to minerals planning permissions that were no longer extant, whether because development had not been commenced within a time limit, or because they were subject to a time limit for completion which had expired. The purpose of paragraph 9 is to enable applicants to invite mineral planning authorities to determine the conditions which should be attached to relevant planning permissions so as to reflect modern environmental concerns. There would be no purpose in determining what conditions should be attached to a minerals planning permission that was no longer extant at the time of the application. I acknowledge that MPG 14 has no statutory force, but the advice in paragraph 12 (see above) is, in my view, well-founded. It accords with the views expressed by Keene J, as he then was, in the Oldham case. Those views are not binding upon me, but I find them highly persuasive. It would indeed be "absurd to require the MPA to determine conditions for a lapsed permission."
24. Section 73 is of no assistance to the claimant. It is true that an application could be made to carry out the development permitted by the 1955 planning permission without complying with the time limit in condition 1. But if such a planning permission was granted it would not be a "renewal" or an "extension" of the 1955 planning planning permission but an entirely fresh planning permission: see section 73(2) of the 1990 Act.
25. The 1990 Act was a consolidating Act. Schedule 5 has its origins in the Town and County Planning Act (Minerals) Act 1981 which was enacted in order to give effect to the recommendations of the Stevens Committee on mineral working: see the introductory paragraphs to MPG 14.
26. Section 7 of the 1981 Act inserted a new section into the Town and Country Planning Act 1971 section 44A(1):

"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."

27. It is plain that the underlying statutory purpose was to impose an overall time limit on mineral permissions, a time limit that was sufficiently lengthy so as not to require the payment of any compensation to those who had an interest in planning permissions which were hitherto unlimited in time. By 1982, when the 1981 Act came into force, the 1961 planning permission had ceased to have effect so as to permit the removal of the tip for over 10 years. It was most certainly not the purpose of the 1981 Act to "revive" such "dead" planning permissions and to extend them for a period of 60 years. Section 44A(5) (now to be found in paragraph 1(5) of Schedule 5 to the 1990 Act,) subject to later amendments dealing with the depositing of mineral waste) applied to planning permissions for development which were still extant at the time when the 1981 Act came into force, not to those permissions which had ceased to permit minerals development by virtue of time limits, whether relating to commencement or completion, on the date when the Act came into force.
28. Turning to the defendant's submission that the 1961 planning permission was simply a permission for the removal of the tip and not a planning permission to extract minerals from a mineral working deposit, there could be no dispute that removal of part of the tip would amount to the extraction of material from a mineral deposit. If that is so it is difficult to see why the removal of the entire tip should not equally fall within the definition of a mineral permission.
29. The permission has to be read as a whole, including the terms of the conditions. It will be noted that condition 3 provided that:

"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."

30. The scheme was to describe:

"... the levels to which excavations shall be carried out and the programming of such works."

31. Condition 4 stated that "all materials disturbed in the excavations shall be removed from the site."
32. In practice the removal of the tip involved the extraction of all, and not merely some, of the minerals within the mineral working deposit comprising the tip. For these reasons I would not have accepted the defendant's submissions under this heading, but for the reasons that I have set out above the council was entitled to reject the application in respect of the 1961 planning permission because it was no longer extant.
33. The same considerations do not, however, apply to the 1955 planning permission. It was a relevant planning planning permission. The application was made under paragraph 9(1) in the proper form. The land shown on the plan accompanying the application may well have gone further than that comprised within the 1955 application (there is a factual dispute between the parties which it has not been possible to resolve as to the relationship of the application site to the 1961 planning permission), but there is no dispute that the application site included all the land comprised within the 1955 planning permission. Paragraph 9(2)(a) was therefore satisfied.
34. The fact that somewhat too much land may have been included may well have been a matter that should have been corrected by the council in due course, but it cannot be said to have invalidated the application as a whole. The application clearly related the two planning permissions: the 1961 and the 1955 permission, but the fact that the council was entitled to reject the application in respect of the former permission does not mean that it was invalid in respect of the latter permission. Paragraph 9(2)(c) requires the application to identify any relevant planning permissions relating to the site. Paragraph 9(6) requires the council to determine the conditions to which each relevant planning permission relating to the site is to be subject. If one of the planning permissions in respect of which application is made is not a relevant permission, that does not prevent the council from looking at each permission and determining the appropriate conditions in respect of those permissions which are relevant planning permissions. I accept that there may be cases where the permissions are so intermingled that it is impossible for the council to disaggregate them, but that is not the case in the present application. The two permissions are clearly identified.
35. The defendant accepts that it was not entitled to refuse to consider the claimant's application merely because it disagreed with the conditions that he had proposed, and felt that they were inappropriate or inadequate. If the conditions proposed by an applicant under paragraph 9(1) are thought to be inappropriate or inadequate, then the mineral planning authority's remedy is set out in paragraph 9(6). It imposes its own conditions. I am prepared to accept that there may be extreme cases where what is proposed by way of condition by an applicant is so plainly outside the ambit of Schedule 13 as to invalidate an application, for example, a suggested condition on a planning permission for mineral working that the erection of six houses be permitted, wholly changing the character of the minerals permission. But that is very far from this case.
36. As the claimant pointed out, the 1955 planning permission enabled the deposit of colliery rubbish. That would have included, in addition to mineral waste, such items as bricks, rubble, stone, concrete etc. The the claimant says that his proposed condition 2 did little more than describe, somewhat more accurately, that which had already been tipped upon the site. Whether or not that is so, it is difficult to see that depositing brick, stone, concrete and builder's rubble would, absent any condition limiting the materials that could be deposited, amount to a material change of use from the deposit of colliery rubbish. The proposed condition is not so far outside the scope of the 1955 permission as to invalidate the entire application. The council's remedy, if it felt that the condition was inappropriately wide, was perfectly simple: it could have imposed its own condition limiting the kind of material to be tipped within the definition of colliery rubbish. For whatever reason it chose not to do so.
37. I do not accept that the council was entitled simply to return a valid application under paragraph 9(1). The letter, dated 19th December 2000, cannot be construed as a determination under paragraph 9(10) that the council is unable to determine the application unless further details are supplied to them. The letter does not (a) state that the council is of such an opinion, nor does it (b) specify further details which it required. Mr Jarman did not submit that it did. He submitted that the council did give notice of their decision on the application under paragraph 9(9). I do not accept that submission. In considering what kind of decision will suffice for the purposes of paragraph 9(9), sub-paragraph (9) cannot be read in isolation. It has to be read together with sub-paragraph 9(6). The decision in question must be a determination of the conditions to which each relevant planning permission related to the site is to be subject. It will be noted in this context that although the letter of 19th December 2000 says, in clear terms, that the 1961 planning permission is not a relevant planning permission, no such statement is made in respect of the 1955 permission. Nor indeed is the application expressly refused in respect of the 1955 permission, it is simply returned to the applicant.
38. In these circumstances the statutory scheme is clear. In the absence of any notice of decision the defendant is deemed to have determined that the 1955 planning permission shall be subject to the conditions proposed by the applicant. I appreciate that this prospect is alarming to the defendant from an environmental point of view, but that is the result of the statutory scheme to which the court is obliged to give effect. The scheme could have provided, for example, that if a mineral planning authority took no decision within three months the application was deemed to have been rejected enabling the applicant to appeal to the Secretary of State (as with applications for planning permission), but Parliament chose to enact paragraph 9(9) which provides that if there has been no notice of decision within the requisit period the authority is deemed to have determined that the applicant's conditions shall relate to the permission.
39. If the resulting conditions are felt to be inadequate the council has power to strengthen them by means of a modification order made under the relevant provisions in the 1999 Act. Such an order would, of course, be subject to the payment of compensation, but that, in my judgment, is not a proper ground for the court exercising its discretion not to give effect to the clear terms of the statutory scheme as set out in Schedule 13 to the Act. The long and short of the matter is that in respect of the 1955 planning permission the claimant is quite right to contend that the council had no power to write a letter simply returning his application to him. The letter, dated 19th December 2000, does not amount to a determination for the purposes of sub-paragraphs 9(6) and 9(9) and the council is therefore fixed with the conditions proposed by the applicant in respect of the 1955 permission.
40. It follows that I allow this application for judicial review in so far as it relates to the 1955 permission but dismiss it in so far as it relates to the 1961 permission. I will now hear submissions as to the appropriate form of relief.

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.