England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd June 2004

The Hon. Mr. Justice Moore-Bick:

1. Background

1. The Peak District is one of the most beautiful areas of England. It is also the only source in this country of a certain type of sandstone used in the construction of fine buildings which is now much in demand both for new building and for restoration work. The area has been quarried for hundreds of years, but since the middle of the last century the extraction of stone has required approval under the planning legislation in force from time to time. On 6^th February 1952 Stanton Quarries Ltd obtained permission from the Minister of Local Government and Planning under the Town and Country Planning Act 1947 and the General Development Order 1950, subject to certain conditions, to continue winning and working sandstone at a number of existing quarries in the area of Birchover. These included a pair of adjacent quarries, Endcliffe and Lees Cross.
2. The passage of the Environment Act 1995 introduced new arrangements for regulating the terms on which the extraction of minerals could take place. The Act required each mineral planning authority to draw up a list of mineral sites in its area with a view to ensuring that any future extraction was carried out on terms that provided adequate protection to the environment and the interests of those living and working in the area. Broadly speaking, sites were designated as "active" if mineral development had been carried out at any time between 22^nd February 1982 and 6^th June 1995 and "dormant" if mineral development had not been carried out to any substantial extent during that period. The authority's powers to impose what became known as "modern" conditions in relation to development varied depending on whether a site was active or dormant. It is common ground that there was no mineral working to any substantial extent at Endcliffe or Lees Cross quarries between 22^nd February 1982 and 6^th June 1995 and that viewed in isolation they would therefore fall to be classed as dormant under the new legislation. The claimant in these proceedings, Stancliffe Stone Co. Ltd, is the successor in title to Stanton Quarries Ltd. It now wishes to re-open Endcliffe and Lees Cross quarries and claims to be entitled to do so in accordance with the conditions imposed by the planning permission granted in 1952. The defendant, the Peak District National Park Authority, is the mineral planning authority for the area in which the quarries are to be found, having taken over the planning responsibilities of the Peak Park Joint Planning Board. I shall refer to it simply as "the Authority". The Authority considers that it is entitled to impose new conditions on any future operations at Endcliffe and Lees Cross quarries by virtue of the fact that they were dormant at the time the Environment Act 1995 came into effect. In order to resolve this issue the claimant has brought the present proceedings seeking a declaration that these two quarries can be worked in accordance with the planning permission granted in 1952 and the conditions attached to it.

2. The Environment Act 1995

3. It is convenient to begin by considering the relevant provisions of the Environment Act 1995 and in particular Schedule 13 which takes effect by virtue of section 95. The schedule sets out the steps to be taken by mineral planning authorities for the purposes of reviewing mineral planning permissions granted prior to 21^st February 1982. Mr. Straker Q.C. submitted that the grant of planning permission is a valuable right attaching to land and that since schedule 13 provides for existing permissions to cease to have effect in certain circumstances, any doubt as to its proper construction should be resolved in favour of protecting, rather than interfering with, existing rights. I fully accept that, but in fact I do not think that there is any real ambiguity in those parts of the schedule that are relevant to the present dispute and I do not think that the principle of doubtful penalisation to which he referred has any part to play in the present case.
4. The first step required of each mineral planning authority was to prepare a list of mineral sites in its area pursuant to paragraph 3(1) of schedule 13 indicating in each case whether the site was an active Phase I site, an active Phase II site or dormant. Any site all or part of which was situated within a National Park was classed as a Phase I site. Since all the quarries covered by the permission granted to Stanton Quarries Ltd in 1952 were within the Peak District National Park, they were on any view Phase I sites. By virtue of the definitions contained in paragraphs 1(1) and 1(2) of the schedule a mineral site was defined for present purposes as land in respect of which a planning permission was granted after 30^th June 1948 for minerals development.
5. By paragraph 3(4) of the schedule the list was to specify in respect of each active Phase I site the date by which an application was to be made to the mineral planning authority under paragraph 9 to determine the conditions to which the relevant planning permissions relating to that site were to be subject. By virtue of paragraph 12(1) failure to make such an application resulted in the existing planning permission ceasing to have effect. Applications for the determination of conditions governing future working could be made in respect of both active and dormant sites and in each case the applicant was required to set out in his application the conditions to which it was proposed the permission should be subject: see paragraph 9(2)(e). Following the receipt of an application the mineral planning authority was required to determine the conditions to which each relevant planning permission relating to the site was to be subject and those conditions thereupon became effective. However, active and dormant sites were treated differently in one important respect. In the case of active sites the authority was obliged under paragraph 10 to state whether in its view the effect of the new conditions was to restrict working rights to an unreasonable degree and both the conditions themselves and the authority's decision as to their effect on working rights were subject to a right of appeal to the Secretary of State. Provision was made in paragraph 15 of the schedule for the payment of compensation in appropriate cases. Those provisions did not apply to dormant sites in relation to which the authority's powers to impose new conditions were subject only to ordinary planning considerations.
6. In order to ensure that existing permissions were not lost through inadvertence mineral planning authorities were obliged by paragraph 8(3) of the schedule to send reminder notices to landowners and any persons appearing to have an interest in any minerals included within active sites if they had not received an application for the determination of conditions eight weeks before the deadline set out in the list. If it failed to do so, an authority could serve a reminder at any later time, but the time for making an application for the determination of conditions was extended until three months from the service of the reminder.

3. The List

7. In January 1996 the Authority published a first list of mineral sites in its area pursuant to paragraph 3(1) of schedule 13. Each quarry or pair of quarries for which planning permission had been granted in 1952 was treated as a separate site and was given its own distinctive reference number, although the reference number and date of the planning permission was the same in each case. Attached to each entry was a plan identifying the site concerned. Different dates were imposed for the submission of applications for conditions. Thus, an application in respect of Dale View quarry (previously known as Palmer's Pilhough) had to be made by 1^st February 1997, for Stanton Park, Birchover by 1^st February 1998 and for Dungeon and Barton Hill quarries by 1^st September 1998. These sites were all classed as active mineral sites. Endcliffe and Lees Cross, on the other hand, was classed as dormant and so no date was set for any application. Notice that the list had been prepared was published by the Authority in the local newspapers as required by paragraph 5 of the schedule and a notice was served on the claimant pursuant to paragraph 8.
8. On 30^th January 1997 the claimants applied to the Authority pursuant to paragraph 9 of schedule 13 for the determination of conditions applicable to Dale View quarry. The conditions proposed by the claimant were extensive and detailed and were of a kind that one would expect to see attached to a modern planning permission. No reference was made in that document to working at any other location. The Authority made its formal determination on 30^th April 1997.
9. On 15^th January 1999 the claimant submitted to the Authority through its planning agents a scheme of operations and proposed planning conditions for the re-opening of Endcliffe and Lees Cross quarries. In their covering letter the agents referred to the fact that both quarries were registered as dormant without in any way suggesting that the description was incorrect.

4. The issues

10. Much of the argument in the present case revolved around the meaning of a "mineral site" in paragraph 1(2) of schedule 13. This is defined for present purposes as

"the land to which a relevant planning permission relates",

a relevant planning permission for these purposes being one granted after 30^th June 1948 for minerals development.

11. Mr. Straker submitted on behalf of the claimant that a single indivisible planning permission had been granted in 1952 in respect of Dungeon and Barton Hill quarries, Stanton Park quarry, Dale View quarry and Endcliffe and Lees Cross quarries, all of which therefore formed part of a single mineral site within the statutory definition. When read in conjunction with the original grant of planning permission it was obvious, he submitted, that the Authority's list of mineral sites was wrong in treating Endcliffe and Lees Cross quarries as a separate (dormant) site and should be read as if they and the other quarries covered by that permission were all part of one active site. New conditions had been determined under paragraph 9 of the schedule in respect of part of that site, namely, Dale View quarry, but not in respect of any other part. Therefore, the remaining areas could still be worked in accordance with the original conditions.
12. Mr. Straker submitted in the alternative that, since Endcliffe and Lees Cross quarries were part of an active site in respect of which no application to determine conditions had been made, the Authority was bound to send the claimant a reminder of the need to apply under paragraph 9 for conditions to be determined and that it was open to the claimant to make such an application within three months after any such reminder was received.
13. Mr. Corner Q.C. for the Authority submitted that the 1952 permission was properly to be understood as four separate planning permissions contained in a single document. The Authority was right, therefore, to treat the four quarries (or pairs of quarries) to which it referred as separate mineral sites for the purpose of the list and was right to describe Endcliffe and Lees Cross as dormant. However, he submitted that even if it was wrong in doing so, the claimant's only remedy was by means of an application for judicial review. The time for making any such application had long passed and therefore the list must now be taken to be correct. If necessary, he submitted that the claimant and the Authority had acted since 1996 on the basis that Endcliffe and Lees Cross quarries formed a separate, dormant site and that the claimant was therefore estopped from asserting that it was part of a larger active site.

5. The 1952 permission

14. The proper construction and effect of the 1952 permission lies at the heart of the present dispute. The application for planning permission had been made by letter dated 19^th November 1947 in what by current standards would be regarded as a very informal manner. However, at that time applications for planning permission did not have to follow any prescribed form and there is no reason to think that this particular application was in any way unusual. It opened with the following words:

"Dear Sir,

We hereby make formal application for permission to quarry the areas shown on the enclosed plans, and which we enumerate as under :-

No. 1. Dungeons & Barton Hill Quarries.

2. Stanton Park Quarry.

3. Endcliffe & Lees Cross Quarry.

4. Palmer's Pilough Quarry.

5. Pringle Wood Quarry.

6. Stanton Quarry. (late Halls).

Present workings at these Quarries are shown on the plans, marked BROWN, with land required for future development shown in BLUE . . . . . . "

Enclosed were six plans showing the current area of working at each quarry (for convenience I shall refer to Dungeon and Barton Hill quarries and Endcliffe and Lees Cross quarries as a single quarry in each case) and the additional areas required for future work. The letter went on to describe the different purposes for which stone was used and to explain that different qualities of stone were required in each case. It also pointed out that no one quarry could produce all the different qualities of stone that the applicant was called upon to supply.

15. The letter granting permission is dated 6^th February 1952 and is also quite informal by modern standards. It opens with the following words:

"Sir,

I am directed by the Minister of Housing and Local Government to refer to the application relating to the development of land at

1. Dungeon and Barton Hill Quarries

2. Stanton Park Quarry

3. Endcliffe and Lees Cross Quarries

4. Palmer's Pilhough Quarry

5. Pringle Wood Quarry

6. Stanton Quarry . . . . "

The letter refers to the fact that Pringle Wood Quarry and Stanton Quarry had been withdrawn from the application. It then describes generally the location of the remaining four quarries, the nature of work being carried out at each of them and the minister's comments before formally granting permission in the following terms:

"In the exercise of his powers under the above Act and Order, the Minister accordingly grants permission for the winning and working of sandstone in the area shown horizontally hatched and shown edged by a broken bold black line on the accompanying plans numbered 1 to 4, subject to the following conditions: . . . . "

There then followed various conditions, some of which related to all four sites and some of which related to individual sites only.

16. In support of his submission that this was to be construed as one grant of planning permission relating to land at four separate locations Mr. Straker relied on the fact that the letter refers more than once to "the application" in the singular and was given only one reference number. By 1952 local planning authorities were obliged to maintain a register of grants of planning permission open to inspection by the public. Accordingly, he submitted that if the letter had been intended to contain four separate grants of permission, each would have been given a separate number for identification purposes. He submitted that the fact that several different parcels of land are covered by the document does not mean that it must be construed as granting more than one permission and drew my attention to the cases of Salisbury District Council v Secretary of State for the Environment [1982] JPL 702, where permission given for the development of seven bungalows was construed as a grant of permission for a single development which could be spaced out over time, and R v Secretary of State on the application of Redrow Homes Ltd [2003] EWHC 3094 (Admin); (Sullivan J., unreported, 3^rd December 2003) which concerned a single permission for a large-scale development extending over more than 2,500 acres. As he himself accepted, however, the issue is ultimately one of construction. There is no insuperable obstacle to making more than one grant of planning permission in one document, though I accept that it would now be unusual to do so. The question, therefore, is whether, on the true construction of the letter of 6^th February 1952 and the letter of application to which it refers, the minister did on this occasion make one grant of planning permission in relation to four quarry sites, or four separate grants of permission.
17. When considering this question I think it is essential to bear in mind two things. The first is that it is necessary to look at the substance of the matter rather than simply the form. The second is that it would be dangerous to assume that in 1952 matters of this kind were conducted in as formal a manner as they would be today. There were no prescribed forms to be completed and there is some evidence to suggest that multiple applications for permission were commonly made in ordinary correspondence of the kind that one sees in this case. Having regard to the nature of the application, I do not find it surprising that the reply refers to "the application" and I am unable to attach much importance to the use of that expression. Nor, for the same reason, do I think that much significance can be attached to the single reference number. Nowadays I think that it probably would be a matter of importance when everyone is accustomed to the need to identify carefully each separate grant of permission, but, having seen the exchange of correspondence, I am not particularly surprised that in this case a single letter of application and single letter in response should have generated one reference of this kind. Nor do I think that any assistance can be derived from paragraph 1(2)(a) of schedule 13 to the Environment Act which allows mineral planning authorities to aggregate two or more existing planning permissions in order to designate the land to which they refer as a single site for the purposes of the schedule since it is still necessary at the outset to identify the land to which the original permission refers.
18. Two factors seem to me to be of rather greater significance. The first is that although the applicant needed to work several quarries to satisfy a variety of different commercial requirements, there is nothing to suggest that the six quarries to which the application related formed part of a single unit for commercial or operational purposes. I can well see that in some cases a single scheme may require the development of several parcels of land some of which may be quite widely separated from others. One example given by Mr. Straker was the construction of a new university which might well involve the use of sites for halls of residence, laboratories and playing fields all at some distance from each other. It would not be surprising for there to be a single grant of planning permission covering the whole development precisely because the scheme could be regarded as an integral whole. The same might be true for many industrial developments. In this case, by contrast, there is no evidence of an integrated operation, as is evidenced by the fact that two of the sites, Pringle Wood Quarry and Stanton Quarry, were withdrawn because the applicant had no immediate plans to work them.
19. The second factor is the way in which the separate sites were identified and described both in the application and the permission. Consistently with the fact that no single integrated development was being proposed, the applicant submitted separate plans for each of the six sites for which permission was being sought. Similarly, when permission was granted it was granted in relation to four specific sites each separately identified by reference to its own plan. Although this is not of itself determinative, it does tend to support the conclusion that the applicant and the minister were both considering each site separately. That view is reinforced by the fact that where two quarries were adjacent or separated only by a road and clearly formed one economic unit, as in the case of Dungeon and Barton Hill and Endcliffe and Lees Cross, they were treated as a single unit, both for the purposes of the application and the permission.
20. In the light of these considerations I have come to the conclusion that in this case the letter of 6^th February 1952 contained four separate permissions for planning purposes, not one single permission.

6. The List

21. It follows that in my view when the Authority drew up the list of mineral sites in its area pursuant to paragraph 3 of schedule 13 it acted correctly in treating the four quarries in respect of which permission for development had been given in the letter of 6^th February 1952 as four separate sites. Furthermore, since it was accepted that no substantial operations had been conducted at Endcliffe and Lees Cross quarries since 22^nd February 1982, it also follows that the Authority was right to describe this pair of quarries as dormant. That is sufficient to dispose of the present claim, but in case the matter goes further, I think it may be helpful to express my views on the effect of the publication of the list in the event that I am wrong in my construction of the letter of 6^th February 1952.
22. On this assumption there was only one planning permission relating to all four quarries and therefore only one mineral site for the purposes of paragraph 3(1) of schedule 13. It follows that when drawing up the list the Authority ought to have treated the four sites as one and ought to have described it as an active site since quarrying operations had been going on at Dale View throughout the relevant period. It ought also to have specified a single date by which an application was to be made under paragraph 9 for the determination of conditions relating to the site as a whole. Mr. Straker submitted that the schedule allowed the Authority to specify different dates for different parts of a single site, but I do not think that it is capable of being read in that way.
23. On this view of the matter the Authority was in error in treating the four quarries as four separate mineral sites. The first question, therefore, is whether, as Mr. Straker contended, it is possible to construe the list in such a way as to comply with the requirements of the schedule. If the error were nothing more than an obvious slip of the pen, it may be that it could be read in the manner intended by the draughtsman, but that is not the case here. I think it is clear that the list correctly reflects the intention of the Authority to treat the four quarries as separate sites; the error lies in its understanding of the effect of the 1952 permission. Nonetheless, Mr. Straker submitted that the list could be read as if it had been correctly drawn by resorting to the presumption of regularity as explained and applied by Sir Nicolas Browne-Wilkinson V.-C. in Calder Gravel Ltd v Kirklees Metropolitan Borough Council (1989) 60 P.&C.R. 322.
24. In the Calder Gravel case the plaintiff's predecessor in title had applied in 1946 for planning permission in respect of a certain piece of land. The planning authority had passed a resolution approving the application and for nearly 40 years all concerned had proceeded on the basis that outline planning permission had been granted. In 1984 the defendant council contended that in the absence of a document containing a formal grant no valid permission could have been granted. A fresh application for permission was refused and the plaintiffs therefore sought a declaration that there had been a valid grant of permission in 1946 under a document that had since been lost.
25. The Vice-Chancellor heard evidence of the circumstances in which the application had been made and the manner in which the parties had acted in the intervening period. However, the evidence was not entirely satisfactory on either side and he was left in the difficult position of being unable to make a firm finding either that there had, or that there had not, been a formal grant of permission contained in a document that had since been lost. In those circumstances he considered it proper to resort to the presumption of regularity which he described in the following terms:

"But in certain cases the law raises a presumption. . . . . . The presumption is that when there has been a long-term enjoyment of a right which can only have come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence of proof to the contrary, that there was a lawful origin. This is the historical basis from which the doctrine of lost modern grant was developed in relation to easements. Given the long enjoyment of a right of way, then the court presumed the existence of a grant of the right of way. I am not for a moment suggesting that the technicalities and indeed the legal consequences applicable to lost modern grant in the law of easements are applicable to the present case; they are not. The legal basis though is the same, namely a presumption from long enjoyment.

The same presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty."

26. Mr. Straker submitted that it was possible to apply the same presumption in the present case in order to read the list as if the Authority had treated all four quarries as one mineral site. However, in my view that is impossible for a number of reasons. The presumption, being no more than that, will be displaced by evidence sufficient to support a finding on the balance of probabilities, as the Vice-Chancellor held in that case. It comes into play, therefore, only when the evidence is insufficient to support a firm finding one way or the other. If there is sufficient evidence for a finding to be made, the presumption is of no assistance. In the present case all the evidence needed to enable the court to reach a decision is available in the form of the list itself. Secondly (or perhaps this is simply another way of expressing the same point), the issue in the present case is essentially one of construction, not one of fact in relation to which the court would normally expect to make a finding based on evidence. The presumption is concerned with the proof of facts, not with the meaning to be attached to documents that are before the court. The claimant is seeking to rely on the presumption to enable the list to be read as if it had been drafted in the way it ought to have been drafted. That is a fundamentally different exercise from that which the court had to undertake in the Calder Gravel case. In my view the presumption of regularity as described in that case provides no basis for giving the list a meaning contrary to that which it naturally bears.
27. One is then faced with the fact that the list treats each of the four quarries as a separate mineral site, albeit that (on this assumption) it does so wrongly. Paragraph 6 of schedule 13 contains a procedure for enabling the list to be corrected by including a site that has been omitted in error, but it contains no provision for the correction of errors of any other kind. In R v North Lincolnshire Council ex parte Horticultural and Garden Sales (Humberside) Ltd (1997) 76 P.&C.R. 363 the applicant carried on the business of extracting peat from a plot of land in Doncaster in respect of which planning permission had been granted in 1951. Following a boundary change in 1994 part of the site remained in Doncaster and part came within the boundaries of Humberside which was replaced by the respondent council in April 1996. Doncaster published its list of mineral sites in January 1996 which included the land in question and was thought to relate to the whole of the site. Humberside also published its list in January 1996 with a notice requiring applications under paragraph 6 to remedy any omissions to be made within three months. The Humberside list did not include any part of the land and no application was made to remedy the omission. Accordingly, by virtue of paragraphs 9 and 12 of schedule 13 the permission ceased to have effect in relation to that part of the land which fell within Humberside unless the Humberside list could be amended. The council considered that it had no power to amend the list and the applicant therefore brought proceedings for judicial review. Lightman J. held that schedule 13 was clear in its terms and that the council had no discretion to correct errors in the list otherwise than in accordance with paragraph 6. Accordingly the permission relating to the land falling within Humberside had lapsed.
28. I respectfully agree with that conclusion. In my judgment schedule 13 contains a complete code covering the review of old permissions relating to mineral sites. It does not give a planning authority power to correct errors in the list apart from the power to make good omissions under paragraph 6, and then only in accordance with the procedure contained in that paragraph. It would not have been possible in my view for the claimant's predecessors in title to make an application under that paragraph for the whole of the land covered by the 1952 permission to be included in the list as a single site because that would have resulted in the same land being listed twice in a contradictory manner. Since the land in respect of which the application was made would necessarily already have been included in the list, any such application would fall outside the provisions of sub-paragraph (1). In any event, the time for making an application of that kind is long past. The only way in which the list could be challenged, therefore, is by way of judicial review, but again, it is far too late now to pursue a remedy of that kind. It follows that in my view, unless the list is capable of being challenged by way of declaration, it is now determinative of the position as far as these four quarries are concerned.

7. Estoppel

29. This makes it unnecessary for me to deal with Mr. Corner's submission that the claimant is in any event estopped from asserting that the 1952 letter contains a single planning permission and that Endcliffe and Lees Cross quarries ought therefore to be described in the list as active rather than dormant. The basis of his argument was that the claimant and the Authority have acted on the common understanding that the quarry was properly classed as a single dormant mineral site separate from each of the other sites covered by the 1952 letter so as to give rise to an estoppel by convention in accordance with the principles applied in Amalgamated Investment & Property Co. Ltd v Texas Commerce International Bank Ltd [1982] Q.B. 84 and further explained in Norwegian American Cruises A/S v Paul Mundy Ltd (The 'Vistafjord') [1988] 2 Lloyd's Rep. 343. It is sufficient for present purposes to refer simply to the judgment of Lord Denning M.R. in Amalgamated Investment v Texas Commerce in which he summarised those principles as follows:

"When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so."

30. In support of his submission that the principle of estoppel by convention applies in the present case Mr. Corner referred me first to a number of press releases published by the claimant and its predecessor in title in which Endcliffe and Lees Cross quarries were described as dormant, as well as to the publication of the list and the claimant's subsequent applications for the approval of new working conditions at Dale View and Endcliffe and Lees Cross quarries themselves. Although the press releases give some insight into how the claimant and its predecessor in title understood things at different times, I do not think that much help is to be gained from them for present purposes since there is no reason to think that the Authority was aware of them, let alone that it was affected by them in any way. However, the claimant's application in January 1997 for the approval of new working conditions in respect of Dale View quarry is another matter entirely. The list of mineral sites had been published about a year earlier and clearly treated the four quarry sites covered by the 1952 letter as four separate mineral sites, three of which were classified as active and one as dormant. By its terms the application made in January 1997 related to Dale View quarry alone and was clearly submitted on the assumption that the quarry was to be regarded as a site separate from each of the three other sites covered by the original permission. It is also clear that the application was considered and new conditions were approved by the Authority on the same understanding. The application for new conditions relating to Dale View was a transaction to which the claimant and the Authority were parties and, moreover, is one which is said by the claimant to have directly affected the terms on which Endcliffe and Lees Cross can now be worked. In these circumstances I think it would be unfair to allow the claimant to resile from that understanding (if it were otherwise open to it to do so) so as to treat all four quarry sites as one and the new conditions applicable to Dale View as if they were the only new conditions that applied to that site as a whole.
31. If the ordinary principles of estoppel applied in the context of dealings between landowners and planning authorities, therefore, I think there would be a strong argument for holding that the claimant is estopped from contending that the four quarries covered by the 1952 letter are properly to be regarded as a single mineral site within the meaning of schedule 13. However, I think Mr. Straker was right in submitting that these principles have no application in the context of planning law which raises issues of public rather than private law.
32. For some time it was assumed that the doctrine of estoppel was capable of operating in the context of planning applications - see, for example, R v Caradon District Council ex parte Knott [2000] 3 P.L.R. 1 - but that view has recently been disapproved, at least in relation to planning authorities, by the House of Lords in R v East Sussex County Council ex p. Reprotech (Pebsham) Ltd [2002] UKHL 8; [2003] 1 W.L.R. 357. In that case Lord Hoffmann, with whom the other members of the House agreed, considered it unhelpful to introduce private law concepts of estoppel which bind individuals into the public law of planning control which binds the population at large. He acknowledged the analogy between the concept of estoppel in private law and the concept of legitimate expectation in public law, but noted that remedies against public authorities have to take into account the interests of the general public. He considered that the time had come for public law to stand on its own two feet without recourse to the doctrine of estoppel. Lord Mackay expressed himself in similar terms.
33. While acknowledging the force of these comments, Mr. Corner submitted that they did not form part of the ratio decidendi and so are not binding. He also submitted that even if the principles of estoppel by representation do not operate against a public body, Lord Hoffmann's observations do not necessarily lead to the conclusion that a public body such as a planning authority cannot rely on the principles of estoppel by convention to prevent a private individual from denying the existence of a state of affairs on which they both relied as forming the basis of their dealings.
34. In seeking to confine Lord Hoffmann's comments to estoppel by representation Mr. Corner relied on the fact that in the Reprotech case their Lordships cast no doubt on the correctness of the decision in Thrasyvoulou v Secretary of State for the Environment [1990] 2 A.C. 273 in which the House held that another form of estoppel, estoppel per rem judicatam, could operate to prevent the re-opening of a decision made by a public body under a self-contained statutory code unless the statutory provisions themselves demonstrated an intention to exclude the principle. However, I do not think that a parallel can be drawn between res judicata and other forms of estoppel. As Lord Bridge pointed out at page 289, the rationale which underlies the doctrine of res judicata is fundamentally different from that which underlies estoppel by representation, or, for that matter, estoppel by convention. One of the principles on which estoppel per rem judicatam rests is that the public interest demands that there be finality in decision-making. The other, also a principle of public policy, is that no one should be put to the trouble of dealing with the same matter twice. Together these principles as expressed in the doctrine of estoppel per rem judicatam provide a basis for ensuring that the decision-making process operates in an orderly and effective way. The continued applicability in the area of public law of the doctrine of res judicata provides no basis in my view for holding that other forms of estoppel based on different principles still have a part to play.
35. Whilst I accept that Lord Hoffmann's remarks in Reprotech did not form part of the ratio and are therefore, strictly speaking, obiter, they are, of course, of the highest persuasive authority and are not restricted in their application to one kind of estoppel only. They point clearly to the conclusion that the doctrine of estoppel in general does not operate against planning authorities because of the public law nature of their functions. Moreover, insofar as these functions are regulated by statutory provisions, I do not think that the doctrine of estoppel can operate in favour of an authority against an applicant any more than it can operate against an authority in favour of an applicant. In Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 Megaw L.J. noted at page 219c per that "an estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty" (emphasis added). In a case such as the present the authority must consider and respond to any application it may receive in accordance with the relevant legislation which is designed to promote and safeguard the public interest. In the case of estoppel by convention, which depends on the parties to a transaction having conducted their affairs on the basis of a common understanding, there is the added difficulty that if the planning authority cannot be held to that understanding, it is unlikely to be fair or just to hold the applicant to it.
36. For all these reasons I am satisfied that the Authority cannot rely as against the claimant on the principles of estoppel by convention.

8. Alternative claims

37. Paragraph 8(3) of schedule 13 imposed a requirement on planning authorities to serve a notice on any landowner who had failed to make an application for new conditions in respect of an active mineral site eight weeks before the deadline reminding him of the need to make such an application. If it failed to send the necessary reminder, it could do so at a later date, but the landowner would then have three months in which to apply for the approval of conditions. It was common ground that the Authority had not sent the claimant a reminder that Endcliffe and Lees Cross quarries were included in an active mineral site.
38. Mr. Straker submitted that in these circumstances the time for submitting an application under paragraph 9 of the schedule for the approval of new conditions in respect of Endcliffe and Lees Cross quarries had not yet expired and that the claimant was entitled to a declaration to that effect. However, paragraph 8(3) applied only to active sites; it had no application to dormant sites. This argument really adds nothing, therefore, to the issues already considered. For the reasons I have already given I am satisfied that the list was correctly drawn and that even if it was not, it is now too late to challenge either the list itself or the basis on which it was compiled. It follows that Endcliffe and Lees Cross quarries did not form part of an active mineral site and that, having classified the quarry as dormant, the Authority was not bound to send the claimant a reminder notice under paragraph 8(3) of schedule 13.

9. Discretion

39. Finally, Mr. Corner submitted that, because the present dispute between the claimant and the Authority raises issues of public law rather than private rights, these proceedings are an abuse of process of the kind described in cases such as O'Reilly v Mackman [1983] 2 AC 237, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 and Carter Commercial Developments v Bedford Borough Council [2001] EWHC (Admin) 669 (Jackson J., unreported, 27^th July 2001) and relief by way of declaration should therefore not be granted.
40. In O'Reilly v Mackman prisoners charged with disciplinary offences before the board of visitors sought to obtain declarations that the board's decisions were void and of no effect. The Court of Appeal struck out the claims and its decision was affirmed on appeal by the House of Lords. Lord Diplock, who gave the leading speech, pointed out that the prisoners had no remedy in private law and that any remedy for their grievances lay in public law alone. He held that in the light of the developments in the procedure for obtaining judicial review that had been introduced by R.S.C. Order 53 it was in general contrary to public policy, and therefore an abuse of the process of the court, to allow a person who seeks to establish that a decision of a public authority has infringed rights to which he is entitled to protection under public law to proceed by way of an ordinary action.
41. Clark v University of Lincolnshire and Humberside was a rather different case. It concerned a claim by a student for a declaration that in marking one of her papers the university had reached a decision in breach of its contract with her. The judge at first instance had struck out the claim, which was then rather differently formulated, on the grounds that it was not justiciable by the court, but the Court of Appeal gave the claimant permission to amend in such a way as to raise in clearer terms claims based on the contract between herself and the university. On the basis of that amendment the court reinstated the claim.
42. The importance of this decision lies in the importance which the court attached to the procedural changes introduced by the Civil Procedure Rules. Sedley L.J. pointed out that, if the courts permit what is in substance a public law challenge to a decision of a public body to be brought at any time within the ordinary limitation period if it also happens to sound in contract, the result may well be to circumvent the safeguards contained in what is now Part 54 of the Rules which deals with proceedings for judicial review. However, as Lord Woolf M.R. pointed out, since the Rules now give the court much wider powers to intervene if it considers that its procedures are being misused, there is less need to be concerned with the procedure adopted by the claimant than with the substance of the claim and the circumstances in which it has been brought. Where the claim has a substantial public law element to it, delay in bringing proceedings for declaratory relief is a proper factor for the court to take into account when deciding whether the claim should be allowed to proceed to a hearing at all, and, if it is, whether to grant relief.
43. These principles were applied by Jackson J. in Carter Commercial Developments v Bedford Borough Council. In April 2001 the claimant brought proceedings in the Administrative Court by way of Part 8 claim form seeking to establish by way of declaration that a planning appeal rejected by the Secretary of State in August 2000 as being out of time had in fact been commenced within time. The Judge took the view that the proceedings had been brought in that form simply in order to circumvent the time limit imposed by Part 54 of the Civil Procedure Rules and ought therefore to be struck out.
44. The present case differs from both Clark v University of Lincolnshire and Humberside and Carter Commercial Developments v Bedford Borough Council in that there has been no attempt to strike out the claim and the matter has now come to a hearing. That is not a matter for criticism in itself. On the contrary, the parties sensibly recognised that in the present case proceedings by way of Part 8 claim form seeking declaratory relief provided the most suitable means of obtaining a decision on the issues which divide them and they have co-operated to enable the matter to be brought on for hearing with commendable speed. Nonetheless, this is a case, as I have already observed, in which the time for making a challenge by way of judicial review has long since expired and that remains a powerful factor when deciding whether it would be appropriate to grant relief of any kind.
45. The period within which proceedings seeking judicial review must be made is much more limited than that which applies to civil actions based on private rights for the very good reason that decisions of public authorities which may affect the interests of a wide range of people must be secure and should not be open to question long after the event. In the present case the claimant seeks by way of declaration to challenge the correctness of a decision by the Authority in relation to the listing of Endcliffe and Lees End quarries that was taken and published over eight years ago. Moreover, as I have already indicated, it has in the meantime been acted upon and accepted as correct. In my judgment it is far too late to challenge that decision now. Even if I were persuaded that the Authority had erred in drawing up the list of mineral sites in its area, I do not think that it would be appropriate for the court to exercise its discretion in favour of granting relief by way of declaration.
46. For all these reasons this claim must fail.