QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HART AGGREGATES LTD||(CLAIMANT)|
|HARTLEPOOL BOROUGH COUNCIL||(DEFENDANT)|
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MR A PORTEN QC AND MR J FINDLAY (instructed by Hartlepool Borough Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE SULLIVAN: Introduction
"In the opinion of the Local Planning Authority the 1971 permission to which this application relates has lapsed and the Local Planning Authority has no power to consider the application."
"... for the extraction of limestone from land at Hart Farm, Hart village referred to in the application of Sherburn Stone Co Ltd per JJS Allison ... in accordance with plans submitted by him on 3rd July 1970 and numbered STNR:3778 as amended by letter and plan dated 18th January 1971 subject to the following conditions ..."
"1. That extraction of minerals shall be confined to the area edged red on the plan which accompanied the application.
"3. All topsoil and vegetative overburden shall be removed and separately stored along the north eastern boundary of the site to the satisfaction of the Local Planning Authority.
"4. That workings shall be phased in accordance with the plan submitted on the 18th January 971.
"5. Extraction shall commence in that portion of the site marked Phase 1 on the submitted plan and that portion shall be worked out before extraction is commenced in Phase 2. Extraction in Phase 2 shall be completed before extraction is commenced in Phase 3.
"6. That extraction shall, so far as is practicable, be phased in such a manner that no more land shall be taken out of agricultural use in any period of 12 months than can be worked in that period.
"10. The worked out areas shall be progressively back-filled and the areas restored to levels shown on the submitted plan or to a level to be agreed by the Local Planning Authority in accordance with a restoration scheme to be agreed by the Local Planning Authority before extraction is commenced.
"11. The materials to be used for the back-filling shall be agreed by the Local Planning Authority and no clay, shale, fly-ash, marl, household refuse, industrial and chemical wastes, or other impervious or obnoxious material shall be tipped into the worked out portions of the quarry.
"12. All stone and other deleterious material larger than 3 inches shall be buried to a depth of not less than 24 inches or such other depth as may be agreed with the Local Planning Authority.
"13. The final level of the worked out area shall be to the satisfaction of the Local Planning Authority and over which shall be respread the overburden and topsoil so as to achieve a reasonably level and evenly graded surface.
"14. That provision shall be made for the drainage of the restored site in accordance with a scheme to be approved by the Local Planning Authority.
"15. That work shall be carried out including cultivating, fertilising and seeding in a manner approved by the Local Planning Authority to provide for the proper establishment of a grass sward.
"17. That within 12 months after completion of workings all buildings, plant, machinery and other structures shall be removed from the site."
"1 & 16. In order that the Local Planning Authority may retain effective control.
"3 & 10, 13, 14, 15 & 17. To ensure satisfactory restoration of the site.
"4 & 5. To ensure that excavation is carried out in an orderly manner.
"6 & 7. In order to minimise agricultural disturbance and loss.
"11... In order to safeguard underground water supplies."
"Intentions regarding the restoration of the worked out quarry area."
"We intend to backfill the worked out areas with suitable waste to the levels of the enclosed plan. Soil and subsoil will be stocked for subsequent respreading."
"Extension to existing quarry and reclamation of part of existing quarry to agricultural land, Hart Quarry, Hart."
"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 forms part of ... an active ... Phase 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."
"3. Both permissions contain conditions precedent. These conditions require that the written approval of the Local Planning Authority must be obtained for various matters before development can commence.
"4. It is settled law that the development begun in breach of a condition precedent is unlawful.
"5. Both permissions were subject to a deemed condition requiring development to start within 5 years of the date that the planning permissions were issued. This meant that development authorised by the 1971 permission had to start no later than 28th April 1976 and that development authorised by the 1989 permission had to start no later than 2nd November 1994.
6. The quarry operators failed to obtain the LPA's approval to all the matters covered by conditions precedent. This means that although the quarry has been worked extensively beyond the dates mentioned in paragraph 5, both permissions have in fact lapsed because of the failure to obtain approval to all the matters covered by conditions precedent within these time limits."
"Counsel's Opinion is not categorical as to the position. However, it is sufficient to enable us to form a view on the current position and this letter is, therefore, based on the Opinion as being the best advice available.
"It has been concluded that in all likelihood the permissions of 1971 and 1989 have lapsed in that conditions precedent (ie conditions that go to the heart of the permission and without whose discharge there could not be a lawful start on site) have not been discharged. With regard to the 1971 permission, condition 10 requires a restoration scheme before extraction is commenced. There is no record of the receipt of such a scheme."
Question (1): The Interpretation of Condition 10
"The worked out area shall be progressively back-filled and the areas restored
(a) to levels shown on the submitted plan; or
(b) to a level to be agreed by the Local Planning Authority in accordance with a restoration scheme to be agreed by the Local Planning Authority before extraction is commenced."
"The worked out areas shall be progressively back-filled and the areas restored
(a) to levels shown on the submitted plan, or
(b) to a level to be agreed by the Local Planning Authority;
in accordance with a restoration scheme to be agreed by the Local Planning Authority before extraction is commenced."
"... clarification of the correct sequencing, thickness and timing of material replacement so as to protect soil structure, clarification of the methods of placement or routing of vehicles during soil placement or methods of relieving soil compaction) and no indication at all of the planting, landscaping or after-use intentions."
Question (2): What is the effect of non-compliance?
"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question: are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission deemed subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission. The position is the same so far as regulation 7 [of the Town and Country Planning (Minerals) Regulations 1971] and condition 11 are concerned. The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission."
"The earliest authority establishing this principle is an authority which could have been, but was not, referred to Sir Frank Layfield, Etheridge v Secretary of State for the Environment (1983) 48 P&CR 35. In that case I was the first instance judge who determined an appeal to the High Court. In the course of giving judgment I stated the principle to which I have just been referring. However, my remarks in that case were obiter and, in any event, would not be binding on this court. However, in the recent case of Oakimber Ltd v Elmbridge Borough Council (1991) 62 P&CR 594 Purchas LJ (with whom Taylor LJ agreed), as one of the two grounds of his decision, 'unreservedly' agreed with my judgment and Beldam LJ indicated his views in this way at p616:
'On this reasoning it is unnecessary to consider the interesting argument addressed to the court that development carried out in breach of conditions can be regarded as development to which the permission related and whether for the purposes of planning permission conditions can properly be regarded as 'conditions precedent'. But if it had been necessary to do so, I would have expressed my agreement in principle with the view of Woolf J (as he then was) in Etheridge v Secretary of State for the Environment that development carried out without permission or commenced in contravention of conditions of a permission would not be development to which the permission related because it was development carried out in breach of planning control and so not permitted. However the importance and nature of the condition and the extent of and reasons for breach may in some circumstances be relevant considerations and I would prefer to reserve an opinion on the question for a case in which it is necessary to decide it.'
"The next case which is relevant is the case of R v Elmbridge Borough Council, ex parte Health Care Corporation Ltd decided on May 23 1991 by Popplewell J. There is no report of that case available but we were provided with a transcript. That case was heard on an application for judicial review which challenged a decision of the local planning authority that an outline planning permission had not been validly implemented. The outline planning permission had been subject to a condition requiring development to be commenced within five years. Detailed approval was obtained within the five-year period but that detailed approval was subject to the applicants in that case 'prior to the commencement of the works' satisfying 'the District Planning Authority that the land required for the provision of sight lines at the access to Manor Road South is available for this purpose and that thereafter such land shall be kept free of all obstructions'. Within the five-year period the applicants had failed to comply with this condition. In the course of a detailed judgment Popplewell J considered a number of authorities and, at  3 PLR 63 at p79G, he said:
'Even if I were wrong about that, I entirely agree with the view expressed by Woolf J in Etheridge and by the Court of Appeal in Oakimber, namely that development carried out without permission or commencing in contravention of conditions of a permission is not development to which the permission related because it was development carried out in breach of planning control and so not permitted. I do not have to consider whether strictly I am bound by the Court of Appeal in Oakimber or whether what was there said was obiter because I am persuaded by the logic of the argument, even if I am not as a matter of jurisprudence required to follow it.'
"The final case to which I should refer, so far as the principle is concerned, is the case of Staffordshire Moorlands District Council v Cartwright, May 24 1991 (unreported), of which we were also provided with a transcript. In that case Purchas LJ, with whose judgment the other members of the court agreed, applied what he had said in the earlier judgment in Oakimber and, at p 30C made a categoric statement that 'Works or changes of user in contravention of the permission concerned cannot be specified operations' and on this basis came to the conclusion that as a condition of the planning permission had not been complied with that a planning permission had not been implemented by the development which had taken place on the site."
"In the present case the authority had before them an application which specified a large area of land to which the permission allegedly related. If one looks at the permission to see what was authorised one sees that the carrying out of mining operations was not authorised on any part of the site pending the submission of satisfactory details. None were submitted and so the mining operations carried out before April 1 1979 were not authorised. Therefore none of the mining operations to which the planning permission related had begun to be carried out."
"2. This approval is given subject to detailed plans of the layout of buildings, open spaces and drainage and particulars of the types of industries to be provided, being submitted to and approved by the Planning Authority before any development takes place."
"2. No working shall take place except in accordance with a scheme to be agreed with the local planning authority or, failing agreement, as shall be determined by the Secretary of State and such scheme shall among other matters include provision for
"(a) the order, direction depth and method of working ...
"3. Progressive restoration of the site shall take place in accordance with a scheme to be agreed with the local planning authority or, in default of an agreement, to be determined by the Secretary of State, such scheme to be agreed or determined before working takes place, and the scheme shall, among other matters, include provision for~...
"4. Landscaping of the site shall take place in accordance with a scheme to be agreed with the local planning authority or, in default of an agreement, to be determined by the Secretary of State, such scheme to be agreed or determined before working takes place.
"11. The development hereby permitted shall be begun on or before 30th November 1978."
"... was akin to today's outline permission, namely a planning permission subject to a condition requiring the submission and approval of details of the proposed operations before any operations are begun. However, as is again now common ground, no such details were ever submitted to the planning authority. Yet mining continued and no enforcement action was ever taken until recently." Per Schiemann LJ at page 75B to C; see also the passage at page 77C to D cited above.
"No works shall be commenced on site until chestnut pale fencing or other type of fencing approved by the local planning authority of a height of not less than 1.2 metres shall have been erected around each tree or tree group to be retained on site at a radius from the trunk of not less than 4.6 metres, or within the crown spread whichever is the lesser of the two. Such fencing shall be maintained to the satisfaction of the local planning authority during the course of the development operations."
"The sequence of operations during the implementation of the permission hereby granted shall be as may be approved by the local planning authority and a programme of working shall be submitted to the local planning authority for approval before any operations are commenced on site."
"Those two conditions were not complied with. It follows that the roadworks which were carried out were not authorised by the planning permission, but were in breach of planning control. I can see no basis for departing from the well-established normal principle that unauthorised works do not constitute 'material operation comprised in the development'. That being so, development to which the 1993 permission related did not begin within the period set out in condition 2 of that permission."
"No development of the site shall begin until such time as full details of the manner in which foul sewage and surface water are to be disposed of from the site have been submitted to and agreed in writing by the District Planning Authority."
"2. No dwelling shall be commenced until the extension of Heathfield Gardens has been constructed, and surfaced to at least base course level, from the existing end of Heathfield Gardens to the point where it meets the southern boundary of the site...
"5. Before development commences precise details of the finished floor level of each dwelling, road and footpaths, garden areas and open spaces shall be submitted to and agreed in writing with the District Planning Authority...
"6. The facing and roofing materials to be used in the development hereby permitted shall be only as may be agreed in writing by the District Planning Authority before development commences.
"7. A scheme for tree planting on and landscaping treatment of the site, including the area indicated as Public Open Space, shall be submitted to and agreed in writing by the District Planning Authority before development commences...
"8. The form of surfacing used for all outdoor hard surfaces on the site shall be only as may be agreed in writing by the District Planning Authority before development commences.
"9. Precise details of the landscaped strip adjacent to the River Idle shall be submitted to and agreed in writing by the District Planning Authority before development commences...
"10. No development of the site shall begin until such time as full details of the manner in which foul sewage and surface water are to be disposed of from the site have been submitted to and agreed in writing by the District Planning Authority.
"12. Precise details of the landscaping, surfacing treatment and footpath provision for the strip of land containing the gas main shall be submitted to and agreed in writing with the District Planning Authority before development commences..."
"In general, operations carried out in breach of a condition cannot be relied upon as material operations capable of commencing the development within the meaning of section 56(2) [of the 1998 Act]." See per Keene LJ at page 385.
"The starting point is clear: development in breach of planning control is normally ineffective to commence development because it is unlawful. But there are exceptions as the Whitley case shows. Whitley has not been disapproved in the House of Lords. They cover the situations first, where before the deadline has passed the necessary consents have been obtained even though development commenced before they were obtained, and secondly, where the necessary consents were sought before the expiry of the deadline and obtained after it but before any enforcement action had been taken. The approach of the Court of Appeal was seen as a sensible and practical approach which allowed for the realities of any authority rationally taking enforcement proceedings in such a situation. The Court did not contemplate one way or another the making of further exceptions and it did not address the position where the developer has failed to do required works as opposed to a failure to obtain approvals for details."
"126. However, neither the House of Lords in Reprotech nor the Court of Appeal in Powergen overruled or expressly confined to its particular facts, respectively, the decision in Whitley. The decision in Whitley does not fall foul of those subsequent decisions. Whitley dealt with circumstances where the necessary approvals of details were sought and did go through all the relevant statutory procedures. It would have been irrational for the Council thereafter to have thought it expedient to take enforcement proceedings. But Woolf LJ also referred to other circumstances in which the effectiveness of development to commence a planning permission should be judged in the light of the expediency of enforcement proceedings: where the work relied on was started in breach of condition, but within the five year period the approvals were obtained, enforcement proceedings would be too technical; where works contravened a blanket prohibition but were not themselves something to which the missing approvals could relate, or where the works in breach were of no planning significance, the position had to be judged in the light of enforcement proceedings. I do not say that Woolf LJ was saying that those latter two circumstances were ones in which development in breach of condition would always be effective, (though he was for the first). Nor was he saying that in no other circumstances could such development be effective. Nor was he making an unprincipled ad hoc non-statutory exception to a statutory code or one which was confined to cases where the breach arose from a failure to secure approvals of details, which is not a distinction drawn by the Act for these purposes. It cannot be seen as a hard case making bad law. And it is inherent in Whitley, that it may not be possible to tell whether the development has been effectively commenced immediately upon the expiry of the five year period because the exception in Whitley depends upon whether the previously sought approvals are in fact granted before enforcement proceedings are initiated. It would not be unlawful to commence such proceedings before the approvals were granted, although there would be no point in continuing with them thereafter.
"127. I consider that the principle discernible in Woolf LJ's reasoning is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development. Three of the passages from his judgment, to which I have referred in paragraph 104, related his approach to the rational availability of enforcement proceedings. Enforcement action may still be taken to remedy the breach by requiring compliance with the condition. But the development cannot be stopped from proceeding."
"130. However, if after the expiry of the five year period, it is possible to conclude that enforcement action is not lawfully possible, I see no reason why the development which cannot be enforced against should not be regarded as effective to commence development. The role of enforcement, and the statutory flexibility which it brings, cannot be left wholly out of the picture when reaching a conclusion on a matter about which the Act is not explicit -- can development in breach of planning control ever be effective to commence a planning permission? This is itself a judicial interpolation into the statutory code. It too arises from the application of public law principles as to the legal consequences of unlawful though not criminal acts. No sound distinction can be drawn for these purposes between development which cannot be enforced against because there has been no breach of planning control and development which cannot be enforced against because such action would itself be unlawful. If, in language which the post Carnwath Report enforcement regime has made redundant, development in breach of planning control is immune from enforcement control, it should be regarded as effective to commence development. Such an approach flows from my analysis of the Whitley line of cases.
"131. On that analysis, it would be insufficient to show that the authorities were indifferent to the breach, or unlikely to take enforcement action or indeed that they had decided not to (although no concluded view is required). It is necessary to conclude that they could not do so."
"(4) On an application under this paragraph, the mineral planning authority must --
"(a) if they are satisfied that ... the permission authorises development consisting of the winning and working of minerals ... ascertain --
"(i) the area of land to which the permission relates, and
"(ii) the conditions (if any) to which the permission is subject
"and grant the application, and
"(b) in any other case, refuse the application."
"... they shall determine the conditions to which each relevant planning permission relating to the site is to be subject ..."
"83. The "Whitley principle" is that development in breach of a condition is not development relevant to the planning permission, and thus must be ignored for the purposes of deciding whether that permission has been implemented. Woolf LJ however recognised an exception to that principle, in cases where enforcement action in respect of the breach of condition would not be possible: that is, would constitute a breach of the authority's public law obligations. Mr Clayton argued strongly that that exception must be strictly limited, relying on the judgments in this court in the subsequent case of Henry Boot Homes v Bassettlaw DC  1 P&CR 372. There the developer relied on what he alleged was a legitimate expectation that the condition would not be enforced. Keene LJ, at §§ 55 and 56 of the leading judgment, emphasised that such claims, while not necessarily to be excluded, must be treated with great caution. The public nature of the planning process was inconsistent with giving effect to private understandings between the developer and the planning authority.
"84. I would venture the following comments. First, there is nothing in Boot to suggest that Woolf LJ's recognition of the possibility that public law rules might inhibit enforcement was limited to cases where, as alleged in Whitley, it would be unfair to enforce because, as in that case, a consent lacking at the date of development had been obtained by the time that enforcement was contemplated. Indeed, at p86B of the report in Whitley Woolf LJ treated that as only a particular example of matters to be reviewed at the enforcement stage. Second, while I respectfully give great force to the observations in Boot referred to in §83 above, the claim made by LUL does not seek private exemption from the planning process but rather, in however unusual and accidental a form, relies on the binding nature in rem of the public documents produced by that process.
"85. I would therefore respectfully agree with the view of Ouseley J in Hammerton that irrationality of enforcement action falls within the public law exception to the Whitley principle; and with the submission of LUL that this case falls within that rubric. Enforcement action is therefore not available in any event against the continued development of the ELLX."