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Lafarge Aggregates Ltd & Ors v. Scottish Ministers & Ors [2004] ScotCS 6 (09 January 2004)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Weir
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XA99/02 OPINION OF THE LORD PRESIDENT in APPEAL TO THE COURT OF SESSION under section 239 of, and Schedule 9 to, the Town and Country Planning (Scotland) Act 1997 by (FIRST) LAFARGE AGGREGATES LIMITED; (SECOND) RONEVAL QUARRIES LIMITED; and (THIRD) RODEL CROFTING LANDS LIMITED Appellants; against A decision of the Scottish Ministers dated 28 May 2002 and communicated to the Appellants by letter dated 28 May 2002 determining an appeal by the Appellants under paragraph 76 of Schedule 9 to the Town and Country Planning (Scotland) Act 1997 in respect of an old mineral planning permission at Rodel, Isle of Harris (FIRST) THE SCOTTISH MINISTERS; (SECOND) SCOTTISH NATURAL HERITAGE Respondents: ______ |
Act: Martin, Q.C., Mure; Biggart Baillie (Appellants)
Alt: McNeill, Q.C., Crawford; R. Henderson (Scottish Ministers): Dean of Faculty, Q.C., Wilson; Archibald Campbell & Harley (Scottish National Heritage)
9 January 2004
[1] This is an appeal against a decision of the Scottish Ministers that certain areas should be included as a dormant phase I site in the list of minerals kept by the second respondents in terms of paragraph 3 of Schedule 9 to the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). The Scottish Ministers accepted the findings, and agreed with the reasoning and conclusions, of the Reporters who had conducted a public inquiry, and adopted them for the purposes of their own decision. In the hearing of this appeal only the appellants, the Scottish Ministers (as first respondents) and Scottish Natural Heritage (as third respondents) were represented.
The listing of old mineral planning permissions
[2] For some years it had been recognised that there was a need for the regular review of old permissions relating to mineral working. Following an examination of the operation of the Town and Country Planning (Minerals) Act 1981 provision was made by the Planning and Compensation Act 1991 in regard to mining consents which had originally been granted between 1943 and 1948 under General Interim Development Orders, referred to as "old mining permissions". Holders of such permissions were required to register them with the planning authority and to submit a scheme of operating and restoration conditions for its approval. Provision was thereafter made by section 96 of, and Schedule 13 to, the Environment Act 1995 ("the 1995 Act") in regard to the review of planning permissions for minerals development which had been granted between 1948 and 1982. According to paragraph 6 in the introduction to Circular 34/1996, which provided guidance in regard to the 1995 Act, the object of this legislation was not only to protect the environment and amenity but
also to provide equal treatment between sites and mineral operators. The provisions which had been made by the Planning and Compensation Act 1991 were replaced by Schedule 14 of the 1995 Act. As was observed by Lightman J. in R. v. North Lincolnshire Council, ex parte Horticultural and Garden Sales (Humberside) Ltd. (1997) P & C.R. 363 at page 366, these changes arose out of a recognised need to have a definitive list of all extant mineral planning permissions and to update the conditions on which such permissions had been granted.
[3] In due course the provisions of the 1995 Act were replaced by section 74 of, and Schedules 8 and 9 to, the Town and Country Planning (Scotland) Act 1997. In the present case the court is concerned with the latter of these Schedules, which relates to the review of old mineral planning permissions granted between 1948 and 1982.[4] Under Schedule 9 ("the Schedule") the planning authority has a duty to prepare, advertise and give notice of the first list of mineral sites in their area (paragraphs 3(1) and (2), 5(2) and (3) and 8(1) and (2)). For present purposes it is sufficient to say that a "mineral site" is defined as "the land to which a relevant planning permission relates" (paragraph 1(4)), that a "relevant planning permission" is a planning permission granted after 30 June 1948 for minerals development (paragraph 1(1)), and that "minerals development" means development consisting of the winning and working of minerals (section 74(3)). The list is to show whether the site is an active phase I, active phase II, or a dormant site (paragraph 3(3)). Whether the site is in one or other of these phases depends on its location, determined in accordance with paragraph 2(4) and (5). A mineral site is not a phase I or phase II site where (a) all the relevant planning permissions which relate to the site were granted after 21 February 1982, or (b) some were granted after that date, and they relate to the greater part of the site (paragraph 2(1) and (7)). A dormant site is a phase I or phase II site where no minerals development was carried out between 22 February 1982 and 6 June 1995, otherwise than by virtue of a planning permission which is not a relevant planning permission. A mineral site which is a phase I site or a phase II site is active if it is not a dormant site (paragraphs 1(1) and (5)). It may be noted that para. 28 of Circular 34/1996 stated that for each site the list should be accompanied by a site plan and reference sheet showing the extent and dates of the relevant planning permission(s) relating to the site.
[5] The significance of listing can be seen from the later provisions of the Schedule. The owner of land which is or forms part of a mineral site which is on the list may apply for the determination by the planning authority of the conditions to which the relevant planning permissions relating to that site are to be subject (paragraph 9(1)). Such conditions may (a) include any conditions which may be imposed on a grant of planning permission for minerals development and (b) be in addition to, or in substitution for, any existing conditions to which the planning permission in question is subject (paragraph 9(6)). If no timeous application has been made under paragraph 9 in respect of an active or dormant phase I or phase II sites, the relevant planning permission which relates to that site is to cease to have effect (paragraph 12(1) and (3)). Where the effect of the conditions determined by the planning authority, other than those relating to restoration or after care, as compared with the pre-existing conditions, is to "restrict the working rights in respect of the site", the planning authority is to give notice of this, along with their opinion as to whether this prejudices the economic viability or asset value to an unreasonable degree (paragraph 10(1) and (2)). "Working rights" are restricted if, inter alia, the size of the area which may be used for the winning and working of minerals is restricted or reduced in respect of the mineral site in question (paragraph 1(6)). Such restriction may give rise to compensation in accordance with paragraph 15.
[6] Where a phase I or phase II site is not included in the first list the relevant planning permission which relates to the site is to cease to have effect, except in so far as it imposes any restoration or after care condition (paragraph 12(4)). Owners of land may, if that land is not a mineral site included in the first list and does not form part of any mineral site included in that list, apply within three months of the first advertisement of the list for it to be included within it (paragraph 6(1) and (2)). Such an application may be granted in respect of part of the land to which the application relates and otherwise refused (paragraph 6(3)).
The circumstances of the appeal
[7] On 9 February 1965 Kneeshaw Lupton & Co. Ltd. applied to Inverness County Council as the planning authority for planning permission to carry out development consisting of the winning and working of minerals at Rodel, Isle of Harris, in accordance with particulars given in the schedule to the application and the plan enclosed therewith. In their letter to the County Clerk, with which the application was enclosed, the applicants stated that they were negotiating with the proprietor for an agreement to lease the mineral rights of the area to which the application related. They also stated:
"At this stage we are unable to say at which precise point within the area applied for, we would wish to start extractive operations since the choice will depend on further investigations which, in the event of the permission requested being granted, we would undertake in the Spring of this year."
The schedule stated that the types of minerals to be extracted were labradorite, feldspars and lettrabasic rocks. It also stated that the method, direction and estimated rate of working were "subject to further investigation". The estimated period of the operations was given as "long-term - over 50 years". The estimated maximum depths of the excavations were "not yet known". It was also stated that investigations for a suitable site were to start in the Spring of 1965, and that it was proposed that there should be a small crushing and screening plant and an access road to the site "when chosen". The pro forma in which this information was supplied provided for it to be accompanied by a site plan and a layout plan. In the event only a site plan was provided. It showed an area extending to about 600 hectares ("the 600 hectares") within a line which ran from one point on the coast to another. Within that area nothing was shown in regard to the location, nature or extent of any extraction of minerals. The layout plan, according to the pro forma, was to be to a scale of not less than 25 inches to one mile, showing a number of matters, including the position and width of any existing and proposed accesses, the area proposed to be worked, the phases of working and the depth, length and orientation of working face.
[8] On 22 March 1965 the planning authority issued what purported to be a conditional planning permission (1965/79), to which I will refer as "1965/79", in respect of this application. It stated that the planning authority, in pursuance of their powers under the Town and Country Planning (Scotland) Acts 1947-1963 and the Town and Country Planning (General Development)(Scotland) Orders 1950-1960
"hereby grant approval in principle for the extraction of minerals from an area of Rodel, Harris in accordance with the plan (s) submitted to the Council and docqueted as relative hereto".
It also stated that the permission was granted subject to the following conditions:
"(1) That before any work is commenced full details of the proposed operation be submitted for the approval of the Council e.g. in relation to such matters as mode and direction of working, the precise location of the working face, plant, buildings etc., the arrangements for prevention of contamination of water sources, the proposed road accesses, measures for the preservation of amenity such as re-habilitation of the ground.
(2) In connection with any immediate exploratory operations (any proposed investigations other than minor will require to be detailed to the Council before being undertaken) there will be complete re-habilitation of the ground".
The reasons for the planning authority's decisions were stated to be:
"The securing of water sources; the convenience and safety of road users; and interests of amenity".
[10] On 7 June 1995 Kneeshaw Lupton & Co. Ltd. wrote to the planning authority in regard to 1965/79 enclosing "a map on the scale of 25 inches to the mile of our proposed workings in the Parish of Rodel and of Harris". The map showed lines around, but not completely enclosing, two parts of the 600 hectares, each of which was shown as an "area of immediate development" with an "immediate quarry vicinity". The maximum length of the working face was stated as 200 feet in one case and 250 feet in the other. In each case the maximum height was stated as 40-60 feet. The route of a proposed access road and the location of a proposed magazine were also indicated. The map also showed a separate "area for possible future development" within the 600 hectares. In this case also there was a line which went around, but did not completely enclose the area. A public road was shown as running across the unenclosed ends of one "area for immediate development" and the "area for possible future development". According to the letter the actual positioning of the access road and the best siting of the ablution and toilet facilities, along with the drainage arrangements, were to be the subject of discussion with officials of the County Council. The letter also stated that the company was negotiating for the right to store stone in the vicinity of Leverburgh Pier, for which it was assumed that planning permission would not be required. Until the company could see how demand developed they would prefer to install a portable crushing and screening plant at that location. They asked to be informed whether this should be the subject of a separate planning application.
[11] This letter and the accompanying map were given the reference 1965/321, which I will use in this opinion. By letter dated 23 July 1965 the county clerk replied to the letter of 7 June, stating:
"The Council have approved of the proposed workings. I return one plan which you submitted so that you may please let me have it in duplicate in connection with the issue of a planning consent. I would require also a plan containing sections showing the profile of the ground and the finished level of the quarry floor for the approval of the Council; and of course, also details of any buildings, plant or machinery".
The letter went on to state that there would be a condition that the haulage of stone should follow a certain route to Leverburgh and that there would also require to be details of access to the public road and particulars of loads to be using the highway, together with assurances as to suitable warning being given of blasting, with no fall on to the highway being permitted. According to his letter, the County Clerk enclosed "a note detailing standard conditions which would also be included in the final planning consent". It is understood that a copy of such standard conditions has not been traced, and no light can be thrown on the reference to "the final planning consent". The local planning authority granted the company consent for the installation at Leverburgh of crushing and screening plant for the processing of excavated material and its use for a limited period.
[12] It appears that certain minor exploratory works were carried out after the receipt of 1965/79. Quarrying commenced later in 1965. The quarry was developed with a single bench and two faces aligned north east- south west and retreating north west. About 20,000 tons of rock and overburden were extracted from the quarry in 1996. This took place in one of the two areas of "immediate development". No quarrying took place within the other area, or within the "area of possible future development". Quarrying had ceased by March 1968. In June 1972 the planning authority sought and obtained the removal of the crushing and screening plant, following the expiry of the consent.[13] It may be noted at this point that section 66(1) of the Town and Country Planning (Scotland) Act 1969, as modified in relation to permissions for mining operations by Regulation 7 of the Town and Country Planning (Minerals)(Scotland) Regulations 1971 ("the 1971 Regulations"), provided that every planning permission granted before the commencement of that section, if the development to which it related had not been begun before the beginning of 1969, was to be deemed to have been granted subject to a condition that the development must be begun not later than the expiration of 10 years beginning with the commencement of the section, namely 8 December 1979. Section 68(1) of the 1969 Act, as modified by Regulation 8 of the 1971 Regulations, provided that development consisting of mining operations should be taken to be begun on the earliest date on which any of the mining operations to which the relevant grant of planning permission relates began to be carried out.
[14] In 1981 the then planning authority granted planning permission for the winning and working of minerals within part of the 600 hectares, which was given the reference 80/500. For completeness it may be stated that in 1991 the first appellant applied for planning permission for the winning and working of minerals in an area which comprised the greater part of the 600 hectares along with an adjoining piece of land. The first respondents' refusal of that application was held to be ultra vires (see Lefarge Redland Aggregates Ltd. v. The Scottish Ministers 2000 S.L.T. 1261), and no further determination of the application has yet been made.
[15] In due course by letter to the first appellants dated 31 March 1997 the second respondents gave notice of having listed as a dormant phase I site the site to which the planning permission 80/500 related. The appellants applied under paragraph 6(1) of Schedule 13 to the 1995 Act for the inclusion in the first list of their interests in the 600 hectares. By letter dated 17 September 1997 the second respondents intimated that they had refused the applications by the appellants for the inclusion of the 600 hectares
"on the ground that the matters reserved by the original 'outline permission' were never submitted or approved to give any effect to the earlier permission and that, accordingly, permission is not extant".
In accordance with paragraphs 6(11) and 16 of the Schedule the appellants appealed against this decision to the Secretary of State for Scotland. At their request the appeal was sisted from April 1998 to 22 February 2001 in connection with the determination of the pending planning application to which I have referred. Following the ending of the sist the first respondents decided that, in the exercise of their powers under section 265 of the 1997 Act, the appeal should be considered at a public local inquiry. Two Reporters were appointed to hold the inquiry and to report. The first respondents indicated that the only matters to be examined at the public local inquiry would be "whether there was ever a valid mineral planning permission issued in 1965 and, if so, whether development work took place which would be sufficient to enable any such permission to remain extant". They indicated that there should be no examination of the merits of the development, and that the terms of the inquiry should expressly preclude discussion of any wider planning and environmental issues.
[16] In their report to the first respondents the Reporters indicated that they regarded 1965/79 as a valid conditional planning permission for the winning and working of minerals in the area covered by the application plan (paragraphs 7.28 and 8.6). As at 23 March 1965 the only works which could be lawfully carried out on the land were minor exploratory investigations, as permitted by the second condition attached to the permission. However, the extraction of minerals was not permitted until the planning authority was satisfied with the details of the proposed workings (paragraphs 7.29 and 7.37). The 25 inch map related to some of the suspensive elements of the first condition. It was referred to by the applicants as showing their proposed workings and was accepted by the Council. It specified the mode and direction of working, but did not indicate the arrangements for dealing with the prevention of contamination of water sources. It did not completely define the boundaries of the areas "of immediate development" or the "area for possible future development". It did not specify the profile of the ground or the finished level of the quarry floor (paragraph 7.29 and 7.41). The Reporters stated:
"We consider it reasonable to infer from the correspondence that the County Clerk's letter of 23 July 1965 was simply implementing the decision of the Council through the Planning Committee to approve the details submitted by Kneeshaw Lupton, subject to the imposition of conditions recommended by officials" (paragraph 7.48).
The Reporters stated:
"There was no suggestion that approval of the details shown in the 25 inch plan was the first of a number of stages of approval or that the details approved related only to a first phase of development" (paragraph 7.38).
They went on to state:
"We conclude that had it been the intention of the applicants, the developer or the Council to effect a planning permission for a much larger area(s), then such larger area(s) would have had to have been identified and approved as well before any such work commenced. This did not happen" (paragraph 7.63)".
However, they observed:
"It is also clear that the two areas marked on the 25 inch plan as 'areas of immediate development' were nothing like sufficient for a development that was estimated to last for more than 50 years" (paragraph 7.66).
Their conclusion was that
"The planning permission that was granted by the Council relates only to those areas defining 'the proposed operation' and shown on the 25 inch plan included with the submission of details" (paragraph 7.67).
At the end of their report the Reporters set out a number of matters leading up to their recommendation. In paragraph 8.8 they stated:
"Condition 1 of planning permission 1965/79 required full details of 'the proposed operation' to be submitted for approval before any work was commenced. The details shown on the 25 inch plan showed the proposed operation. These details were approved, and the work was subsequently carried out in accordance with these details. That, however, is the extent of the operation approved and the planning permission finally approved relates only to those areas defining 'the proposed operation' and detailed on the 25 inch plan. The remainder of the 600 ha. no longer has planning permission since work was not commenced on that part prior to 8 December 1979. This view is supported by the subsequent actions of developers in relation to the appeal site who sought separate permissions for mineral developments within the area covered by planning application 1965/79. It follows that these parts only of the appeal site can be classified as a dormant site within the meaning of Schedule 9 of the 1997 Act".
Their recommendation, in terms of paragraph 8.10, was as follows:
"We recommend accordingly that those areas defined as 'areas of immediate development' and 'area for possible future development' shown on the 25 inch plan included with the submission of details by Kneeshaw Lupton in their letter of 7 June 1965 to the County Clerk of Inverness County Council be included as a dormant phase 1 site in the list of mineral sites in their area kept by CNES [the second respondents] in terms of paragraph 3 of Schedule 9 of the 1997 Act".
In paragraph 11 of their decision letter dated 28 May 2002 the Scottish Ministers adopted that recommendation without qualification.
The submissions of the parties
[17] On behalf of the appellants it was submitted that 1965/79 was a valid grant of planning permission for development by the extraction of minerals within the 600 hectares, and that, at the time when it was granted, it was without limit of time. The conditions attached to the planning permission were themselves valid. Condition 1 permitted the planning authority to allow development in the 600 hectares. Condition 2 permitted the immediate carrying out of minor exploratory investigations. Condition 1 was duly satisfied by the submission and approval of details. It was within the discretion of the planning authority to decide what amount of detail was required.[18] The planning permission extended to the 600 hectares. However, the approval of further details remained in the discretion of the planning authority. The listing of the 600 hectares would not permit the appellants to win and work minerals wherever they wanted in the 600 hectares. It did not matter whether condition 1 was interpreted as requiring that all details should be submitted at one time or that, prior to the starting of any particular operation, details of that operation had to be submitted and approved. In any event condition 1 did not require the former. Given the consequences if such an interpretation was correct, very clear wording to that effect would have been required. In the context of the prospective extraction of minerals over the 600 hectares during a period of over 50 years, the construction which the reporters had adopted in paragraph 7.38 was inherently improbable. Condition 1 did not require the submission of, nor did the developers provide, details of delineated sites within which alone quarrying ancillary operations would take place. The condition sought details of the initial location of the working face and of the mode and direction of working. It was clear that ancillary development had taken place outside the three areas specified in the 25 inch map.
[19] Development was implemented in accordance with what had been approved by the planning authority. In respect that development had been begun before 8 December 1979 (and, indeed, before 8 December 1969), the 600 hectares should be entered on the first list. The law did not require that the whole or any particular part of a development must have been begun before that date.
[20] The reporters, and hence the first respondents, had erred in "cutting down" the extent of the planning permission by holding (at paragraph 7.63) that, had it been the intention of the applicants to "effect" planning permission for a much larger area, that much larger area would have been identified and approved as well before work commenced. They were therefore wrong in their conclusion in paragraph 7.67. They failed to provide any reasoning as to why the approval "reduced" the area, thus creating a new planning unit, and as to why lawful implementation of the planning permission amounted only to the conduct of development on that new unit.
[21] The reporters, and hence the first respondents, adopted two mutually inconsistent positions in paragraph 8.8. It was not clear whether the reporters were saying that the planning permission was cut down because approval had been obtained only in respect of three areas, or because work had not commenced on the remainder prior to 8 December 1979.
[22] In their submissions the first respondents accepted that 1965/79 was a valid conditional planning permission for development over the 600 hectares. However, it was not a planning permission for minerals development as it was subject to condition 1, which was suspensive in effect, i.e. allowing such development only when approval had been given in respect of all details and the condition thus purified. In any event 1965/79 did not authorise minerals development on the whole 600 hectares. At the time when they applied for planning permission the developers could not say what would be proposed. Hence they applied for planning permission in principle. The developers would have to seek and obtain approval for minerals development. Unless and until they did so, the planning authority did not know what was proposed. Only a search area had been identified.
[23] It was not disputed that the effect of the granting of 1965/79 was that the planning authority were committed to considering an application for the approval of details, and deciding whether or not to approve of that application. They were, however, entitled to refuse it. The approval of such development on part of the 600 hectares did not result in the approval of such development on the remainder. Minor exploratory operations could not amount to minerals development, as they did not involve the winning and working of minerals.
[24] Condition 1 required a once for all application for approval. In any event the ability of developers to apply for approval of further minerals development on the 600 hectares came to an end on 8 December 1979.
[25] The expression "the land to which a relevant planning permission relates", should be read along with the definition in paragraph 1(1) of the Schedule of a "relevant planning permission" i.e. "any planning permission ... granted after 30 June 1948 for minerals development". Junior counsel submitted that the word "relates" should be understood in the sense of something being allowed or authorised. Senior counsel, on the other hand, appear to concentrate on the significance of "planning permission". The substance of their submissions was that a "mineral site" was land to which an authorisation of the winning and working of minerals related. In the context of the present case, before the approval of an application by developers, there was no land which satisfied that description. After such approval had been obtained, it was satisfied in respect of the three areas identified in the 25 inch map, as being areas where minerals development had been authorised. It was pointed out that under paragraph 6 land of an applicant might be wholly or partly a "mineral site".
[26] The reasoning and the conclusions of the reporters were defended. If the construction adopted by them was one of a number of reasonable interpretations, it could not be said that the decision of the first respondents was ultra vires.
[27] On behalf of the third respondents it was accepted that approval for minerals development had been validly applied for and granted under reference 1965/321. Considered together 1965/79 and 1965/321 comprised at most a single grant of planning permission for minerals development. The relevant planning permission was the authorisation of such development over the three areas. There was no question of the approval derogating from 1965/79.
[28] If, on the other hand, 1965/79 required to be considered by itself, it was not a conditional planning permission for minerals development. It did not identify a specific development within a given area and according to a layout. It was subject to condition 1, and was only "in principle". It did not comply with the relevant statutory framework and was ultra vires. At most it indicated that, so far as the planning authority was concerned, there was no fundamental objection to minerals development. The developers were thus given a "green light" and a sufficient assurance that it was worth their while proceeding with exploratory operation in order to identify a site. At that stage the developers had not identified what form minerals development would take, such as area, phasing, volumes and acreage. Their application should not be interpreted as a proposal to extract minerals from the whole of the 600 hectares. Condition 1 was not a proper condition at all, as its satisfaction was the means of identifying, not merely the details, but the development itself. It did not regulate or control permitted development. The reporters had wrongly assumed (at paragraph 8.4), that if 1965/79 was not a refusal, it was a conditional grant of planning permission.
[29] In any event 1965/79 could not be understood as permitting any defined minerals development. The planning authority would be committed to not acting contrary to the principle of minerals development within the 600 hectares. However, 1965/79 did not in itself have any operative effect. At most it authorised minor exploratory operations.
[30] If 1965/79 was a valid planning permission, it did not follow that it authorised minerals development over the whole of the 600 hectares. The effect of the approval of 1965/321 was to "crystallise" three areas within which such development was permitted, so attaching the planning permission to them.
[31] It was accepted that, as a matter of inference, the winning and working of minerals in 1965/1968 was with reference to the approval of 1965/321.
[32] There was nothing to support the view that approval in accordance with condition 1 could be sought and obtained in a number of stages. Condition 1 contemplated one operation being given planning permission when the developers tendered a layout plan describing a specific development in sufficient detail as to be acceptable to the planning authority. What was put forward in 1965/321 was consistent with there being a single application for the approval of one development.
[33] The entering of land on the list implied that there was authorisation for minerals development on that land. Only the three areas satisfied that test.
Discussion
[34] The central issue in this appeal is whether the first respondents acted outwith their powers in holding that the three areas identified in the 25 inch map constituted "the land to which a relevant planning permission relates" in terms of paragraph 1(4) of the Schedule.[35] The contention for the appellants was that the land was the 600 hectares, being the site outlined in the site plan referred to in 1965/79. The contention for the first respondents and the third respondents was that "the land to which a relevant planning permission relates" should be understood as the land in respect of which there was authorisation for a specific development, and that only the three areas identified in the 25 inch map satisfied that description.
[36] I should add that, as the hearing of the appeal proceeded, it became clear that the arguments for the first and third respondents diverged in a number of respects, in particular as to what constituted authorisation. It appeared that the argument for the first respondents was that it meant unqualified authorisation for the winning and working of minerals to proceed. The third respondents, on the other hand, accepted that land to which a conditional planning permission related could, according to the circumstances, be regarded as land on which the winning and working of minerals was authorised. For the third respondents the Dean of Faculty submitted that if, for example, the planning authority was content with a proposed minerals development, which had been specified without being fully worked out, but sought to be satisfied about a proposed access road or type of blasting, and, on that basis, granted planning permission subject to a condition that development should not start until their approval in respect of this matter had been obtained, it would be hard to resist the view that there was a "relevant planning permission". He went so far as to say that there could be circumstances in which a planning permission granted "in principle" could constitute a "relevant planning permission".
[37] In my view it is necessary to consider the facts and circumstances of the individual case in order to see whether and to what extent there is a subsisting planning permission for minerals development (cf. North Lincolnshire Council, ex parte Horticultural and Garden Sales (Humberside) Limited, supra). So far as paragraphs 3 and 6 of the Schedule are concerned, the point of the exercise is to ascertain whether a relevant planning permission or planning permissions exist in respect of a given site. As Keene J. observed in R. v. Oldham M.B.C. and Anotherm, ex parte Foster [2000] Env LR 395 at page 402, the first list is essentially a list of mineral sites, rather than a definitive list of relevant planning permissions, and continuing validity is part of the concept of a relevant planning permission.
[38] I consider first 1965/79. As I have noted, the third respondents relied on a number of factors in support of the proposition that, considered by itself, it could not be regarded as a valid planning permission. They pointed out that at the time when they applied for planning permission Kneeshaw Lupton & Co. Ltd. stated that the method, direction and estimated rate of working were "subject to further investigation", the estimated maximum depths of excavations were "not yet known", and that investigation for a suitable site was to start in the spring of 1965. Consistently with this, they submitted merely a plan showing the boundary of the site to which the application related, and did not submit a layout plan with the type of information which it would be expected to contain. The fundamental point argued by the Dean of Faculty was that the applicants did not put forward, or obtain permission for, any specific proposal for the winning and working of minerals. In particular it was not proposed that this should take place over the entire 600 hectares. The granting of 1965/79 gave, at most, sufficient authority to carry out investigation to enable them to put forward a specific proposal.
[39] The appellants, on the other hand, submitted that 1965/79 validly authorised (a) the nature of the proposed activity, i.e. the winning and working of minerals and (b), subject to the submission of satisfactory details, the activity of winning and working. The approval of details did not restrict the permitted development. They emphasised that under section 12 of the 1947 Act the planning authority had a wide discretion as to the type of condition which could be imposed on the granting of planning permission. This included a negative condition, by which no development could proceed until such time as details had been approved. It was a matter at the discretion of the planning authority whether the imposition of such a condition was sufficient to justify the granting, as opposed to the refusal, of planning permission, and to enable them to maintain appropriate planning control.
[40] During the course of the discussion, the attention of the court was drawn to the terms of Regulation 4 of the Town and Country Planning (Applications for Planning Permission etc.)(Scotland) Regulations 1948, which provided that, subject to an exception with which this case is not concerned, an application for planning permission was to be made on a form issued by the planning authority and including such particulars and to be accompanied by such plans as might be required by the authority. Regulation 8 empowered the authority to require the applicant to give such additional information as might be requisite to enable them to determine the application. It may be noted that the pro forma which was used by Kneeshaw Lupton & Co. Ltd. followed a model which had been issued to planning authorities by D.H.S. Circular No. 121/1948.
[41] It is true that in Alexander Russell Limited v. Secretary of State for Scotland 1983 S.L.T. 81 Lord President Emslie observed at page 88 that there was at least a question as to the validity of planning permission which had been granted in 1967 for the winning and working of sand and gravel, subject to a number of conditions, including a condition that before any development commenced on the site (which extended to 356 acres) the applicants should submit a further application or applications for the approval of the detailed plans. However, it is to be noted that, even before the coming into force of the Town and Country Planning (Scotland) Act 1947, it was provided by paragraph 10 of the Town and Country Planning (General Interim Development) Order (Scotland) 1946 that
"it shall not be necessary to furnish plans and drawings, other than a site plan in any case where the proposed development is sufficiently described in the particulars together with the site plan, or where the application is expressed to be an application for general permission conditional on the subsequent approval by the authority, or by the Secretary of State on appeal, of the particulars of the proposed development".
[43] It is clear that after 1947 no express provision was made for the granting of general planning permission. Article 5(2) of the Town and Country Planning (General Development) Order (Scotland) 1950 did make provision for the granting of planning permission for the erection of a building subject to the subsequent approval by the planning authority with respect to any matters relating to its siting, design or external appearance. However, it may be noted that, according to D.H.S. Circular No. 51/1950, which accompanied the issue of that order, this "in no way debars local planning authorities from granting permission for other forms of development, subject to a condition requiring the subsequent submission of details". The concept of an "outline planning permission" was introduced later by section 59 of the Town and Country Planning (Scotland) Act 1969. This was applied initially to the erection of buildings, and was subsequently extended to other operations. However, the expression "reserved matters" was confined to matters which are not relevant to the present case.
[44] I am not persuaded that 1965/79 was not a valid grant of planning permission. None of the cases or legislation demonstrates that the planning authority was not entitled to grant planning permission in principle for the winning and working of minerals within a defined site, subject to such conditions as it considered appropriate in order to safeguard the interests of good planning. However, the critical question is - what did 1965/79 grant? In my view, in exercise of their statutory powers, the planning authority merely approved the principle of the winning and working of minerals within the 600 hectares. This meant that they were not thereafter entitled to refuse approval of a specific development on the ground that they were opposed to the principle of such a development. However, they did not authorise the activity of winning and working of minerals throughout the 600 hectares. The Dean of Faculty was correct in pointing to the significance of the total absence at that time of any scheme of proposed development. Neither the applicants nor the planning authority knew what would be proposed and in particular as to where and to what extent winning and working of materials in the 600 hectares would be proposed to take place. As he pointed out, condition 1 of 1965/79 was not so much concerned with a future provision of details, as with a future proposal for development.
[45] I turn next to consider 1965/321. It may be noted that condition 1 of 1965/79 stipulated that "full details of the proposed operation" were to be submitted for the approval of the planning authority. Thereafter, the condition set out merely examples of such details. It may be open to doubt whether the submission made by the applicants strictly satisfied this condition. However, parties to the appeal appeared to be in agreement that the extent of detail which was required was a matter at the discretion of the planning authority, and it was not in dispute that approval was validly applied for and granted. What was the effect of that approval? In my view it is clear that it authorised the winning and working of minerals within, and solely within, the three areas identified in the 25 inch map. There is some difficulty in determining the precise extent of those areas. However, what is abundantly clear is that they extended to only a relatively small part of the 600 hectares. The parties to the appeal suggested a number of ways in which this difficulty might be resolved. However, there was no suggestion that the approval was of no effect by reason of uncertainty, and it is not necessary for this court to rule as to how that difficulty should be resolved, if such a resolution is necessary. During the course of the appeal parties made submissions as to the nature of the relationship between, on the one hand, a planning permission granted subject to the subsequent approval of detail and, on the other hand, the approval itself. In Oakimber v. Elmbridge Borough Council and Surrey County Council Purchas L.J. stated, at page 609, that a planning permission in principle for industrial development "gave no permission for any physical development to be carried out unless there had been prior approval of a detailed plan". On the same page he observed:
"It is well established that a planning consent with or without conditions can never grant more than is sought in the application".
In Whitley & Sons v. Secretary of State for Wales and Clywdd County Council the court regarded the approval of a scheme, following the granting of a general permission for the extraction of stone and sand, as demonstrating that what was done was authorised by the planning permission. Although he expressed himself in terms with which I would not necessarily agree, Lord Justice Clerk Wheatley in Inverclyde District Council v. Secretary of State for Scotland 1980 S.C. 363 expressed, at page 368, much the same idea when he stated:
"The application to the local planning authority for approval of the reserved matters referred to in the application is just a step in the process of applying for planning permission and is part and parcel of the application for planning permission".
[47] But what of the 600 hectares as a whole? It will be seen from my summary of the submissions that there was an issue as to (a) whether it was open to developers, in reliance on 1965/79, to make repeated applications for approval of winning and working of minerals on various parts of the 600 hectares; and (b) if so, whether their ability to do so was affected by the time limit introduced by section 66 of the Town and Country Planning (Scotland) Act 1969, as modified by the 1971 Regulations.
[48] I cannot find anything to indicate that, in granting 1965/79, the planning authority were leaving it open to developers to make successive applications. The language in condition 1, and in particular the reference to "full details of the proposed operation", appears to indicate the contrary. In making their application for approval the applicants did not seek to reserve an opportunity to make a further application, and invite the authority to deal with their application on this basis. On the contrary, they included in this accompanying 25 inch map an "area for possible future development". In my view the Dean of Faculty was correct in characterising the proposed winning and working which was the subject of 1967/321 as "crystallising" the scope of what was permitted.
[49] Even if it had been open to developers to make successive applications, I am not persuaded that it would still be open to them to make such an application in the future. Any minerals development which would be the subject of such an application would, in my view, be separate from that relating to 1965/321, and it would have had to be begun before 8 December 1979. Since the time limit could not now be complied with, the planning authority would be entitled to refuse such an application. The appellants founded on passages in the judgment of Lord Widgery C.J. in R. v. Secretary of State for the Environment ex parte Percy Bilton Industrial Properties Limited (1975) 21 P & C.R. 154. In that case the question was whether, in regard to the statutory time limit, the starting of development on parts of a 22 acre industrial site after the approval of details relating to those parts had the effect of starting the development of the site as a whole. The Lord Chief Justice rejected the view that it would be justifiable to sever the site into individual and separate parcels (see page 159). However, the case does not appear to be authority for the proposition that the same applies wherever a site has planning permission in principle, and approval of specified development in respect of part of that site has been given and put into effect. It is also to be noted that the development was industrial. It may not be difficult to treat a 22 acre industrial site as a whole, on the view that it is unlikely that any part of the site would not be used for industrial purposes, or for purposes ancillary to them. However, in the present case the court is concerned with a large site in which one or more specific developments might have been started.
[50] Even if I was wrong in the conclusions which I have expressed above, the result would be that any further land in respect of which the approval of the planning authority could still be obtained would not fall within the schedule.
[51] In my view the first respondents proceeded on a view of the planning position in the present case to which they were entitled to come. "The land to which a relevant planning permission relates" means, in my view, the land in respect of which specific minerals development has been authorised. In the circumstances of the present case land which satisfies that description comprises only the three areas identified in the 25 inch map. The remainder of the 600 hectares does not satisfy that description since winning and working of minerals in these areas has never been authorised. The reporters did not truly "cut down" 1965/79. The true position is that the general permission for the nature of operation which was granted by 1965/79 was translated into permission for specific development only in respect of the three areas.
[52] In view of the conclusions which I have reached it is unnecessary for me to embark on a discussion of whether the decision of the first respondents, in so far as it concluded that the three areas should be entered in the list, could be severed from their conclusion that 1965/67 was a valid planning permission. Further, the question whether the entry in the list should be classified as a dormant site does not arise. I should add that one of the appellants' contentions was that the reporters had exceeded their remit in recommending that the three areas should be entered in the list, in respect that they were only concerned with the existence and validity of 1965/79. I am wholly unpersuaded by this contention, since the reporters' conclusions arose incidentally from the submissions which were made, without objection, before them at the public inquiry. Further, and in any event, it was open to the first respondents, from whom the reporters' derived their remit, to decide whether or not to endorse their conclusions. There was no suggestion that the reporters' had acted unfairly towards the appellants, let alone cause them any prejudice.
[53] For these reasons I move your Lordships to refuse the appeal.
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Weir
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XA99/02 OPINION OF LORD MARNOCH in APPEAL TO THE COURT OF SESSION under section 239 of, and Schedule 9 to, the Town and Country Planning (Scotland) Act 1997 by (FIRST) LAFARGE AGGREGATES LIMITED; (SECOND) RONEVAL QUARRIES LIMITED; and (THIRD) RODEL CROFTING LANDS LIMITED Appellants; against A decision of the Scottish Ministers dated 28 May 2002 and communicated to the Appellants by letter dated 28 May 2002 determining an appeal by the Appellants under paragraph 76 of Schedule 9 to the Town and Country Planning (Scotland) Act 1997 in respect of an old mineral planning permission at Rodel, Isle of Harris (FIRST) THE SCOTTISH MINISTERS; and (SECOND) SCOTTISH NATURAL HERITAGE Respondents: _______ |
Act: Martin, Q.C., Mure; Biggart Baillie (Appellants)
Alt: McNeill, Q.C., Crawford; R. Henderson (Scottish Ministers): Dean of Faculty, Q.C., Wilson; Archibald Campbell & Harley (Scottish National Heritage)
9 January 2004
[54] I gratefully adopt all that has been said by your Lordship in the chair regarding the background to this appeal and the submissions made on behalf of the parties in the course of the hearing. The reasoning which your Lordship has applied to these submissions is sufficient for a decision in this appeal and I am happy to concur in it, as also with the disposal which your Lordship proposes.[55] However, in deference to the submissions of Miss Crawford and Mr. McNeill, Q.C., for the Scottish Ministers, I should make it clear that, had it been necessary to do so, I, myself, would have been prepared to go further and hold that a "planning permission in principle" or any other supposed "planning permission" which, like "1965/79", prohibited the commencement of work pending further approval of aspects of the application could not in any circumstances itself constitute a "relevant planning permission" for purposes of Schedule 9 to the Town and Country Planning (Scotland) Act 1997.
[56] Read short, the definition of "relevant planning permission" in para. 1 of Schedule 9 is that it means "planning permission ... for ... development" (as it happens "minerals development") and, as your Lordship has made clear, the question at the core of this reclaiming motion is what is meant in that context by the word "development". Leaving aside change of use, the only sort of "development" for which planning permission is ultimately required under the legislation is the actual "carrying out" of "operations" within the meaning of section 26(1) of the Act. As it seems to me, therefore, full and final permission for such a "carrying out" is required if the definition in question is to be satisfied. That sort of permission can appropriately be referred to as "full planning permission" notwithstanding that it may be subject to suspensive conditions indepdendent of any further approval of the Planning Authority. If I am right so far, it follows, I think, that a "mineral site", as also defined in the Schedule, can in the normal way only comprise an area of land which enjoys the benefit of full planning permission for mineral development, albeit that area may well form only part of a larger site in respect of which planning permission was originally sought.
[57] It was suggested in the course of the debate that the reasoning just summarised might suffer from "over analysis" but I, for my part, make no apology for adopting an analytical approach when dealing with legislation in the form of Schedule 9. The intricacy of that Schedule is hard to overstate and it is not always easy to follow the meaning of its constituent parts. Indeed, I am myself far from clear as to just how Schedule 9 would operate in practice if the meaning of "relevant planning permission" were to extend beyond that which I have just given to it.
[58] In expressing the foregoing views I am, of course, aware that it has for long been common parlance to speak of "planning permission in principle" and that since 1965 "outline planning permission" has come to be expressly recognised in planning legislation. Nonetheless, as I see it, these terms signify something essentially different from what I have described as full planning permission and, in the absence of some controlling context, that different meaning is not, in my opinion, included within the phrase, "planning permission ... for ... development".
[59] In agreement with your Lordship in the chair I am of opinion that there is no substance whatever in Grounds of Appeal 5 and 6 relative to the vires of the Scottish Ministers' decision and I also respectfully agree with what your Lordship has said regarding the complaint in Ground of Appeal 10 anent an alleged failure to specify adequately what the Ministers have held to be the extent of the "mineral site" in question. I have wondered whether the three areas of land identified in para. 12 of the Ministers' decision letter comprise, technically, three separate sites rather than just one site. However, aggregation of separate areas into a single site is permitted by para. 1(2)(a) of Schedule 9 and, although not discussed, I am prepared to assume that aggregation was here considered appropriate. As your Lordship has said, Ground of Appeal 15, querying the "dormant" nature of an enlarged "mineral site", does not in the circumstances arise for consideration.
[60] For the rest, it respectfully seems to me that all the Grounds of Appeal, although variously stated, in the end come back to the same point, namely the proper construction of the definition of "relevant planning permission" for purposes of Schedule 9 to the 1997 Act. For the reasons given by your Lordship in the chair and for the reasons given above I am satisfied that any reasonable construction of that phrase in the end leads to a dismissal of the present appeal.
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Weir
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XA99/02 OPINION OF LORD WEIR in APPEAL TO THE COURT OF SESSION under section 239 of, and Schedule 9 to, the Town and Country Planning (Scotland) Act 1997 by (FIRST) LAFARGE AGGREGATES LIMITED; (SECOND) RONEVAL QUARRIES LIMITED; and (THIRD) RODEL CROFTING LANDS LIMITED Appellants; against A decision of the Scottish Ministers dated 28 May 2002 and communicated to the Appellants by letter dated 28 May 2002 determining an appeal by the Appellants under paragraph 76 of Schedule 9 to the Town and Country Planning (Scotland) Act 1997 in respect of an old mineral planning permission at Rodel, Isle of Harris (FIRST) THE SCOTTISH MINISTERS; (SECOND) SCOTTISH NATURAL HERITAGE Respondents: _______ |
Act: Martin, Q.C., Mure; Biggart Baillie (Appellants)
Alt: McNeill, Q.C., Crawford; R. Henderson (Scottish Ministers): Dean of Faculty, Q.C., Wilson; Archibald Campbell & Harley (Scottish National Heritage)
9 January 2004
[61] The appellants in pursuit of their desire to establish a major quarry in south Harris now seek to have a very substantial area of land included in a list of mineral sites in terms of Schedule 9 to the Town and Country Planning (Scotland) Act 1997. Their alleged entitlement to such a listing is based upon a planning permission issued as long ago as 1965 by the long-since defunct Inverness County Council. Their application to the present local planning authority, the second respondents, was refused and the appellants appealed to the Scottish Ministers. A public local inquiry was held over a number of days and the reporters in due course recommended that the appeal should be upheld but only to the extent of allowing some comparatively small areas to be included in the list. The appellants have appealed to this court and have submitted that the whole of the extensive area sought should be treated as a dormant phase 1 site in the list of mineral sites kept by the second respondents.[62] Despite the exhaustive nature of the arguments, in my opinion, the appeal can be decided by consideration of one issue only, namely, what is the meaning and effect to be given to the terms of the "planning permission" purportedly issued by Inverness County Council on 22 March 1965 to the predecessors of the present appellants. Put at its simplest, the appellants submitted that this amounted to a "relevant planning permission for minerals development" as defined in paragraph 1(1) of Schedule 9 to the Act. The land over which the permission was given was "land to which a relevant planning permission relates" (paragraph 1(4)) and was accordingly a "minerals site" in terms of paragraph 1(2). It should be placed on the list referred to in paragraph 3. On the other hand the respondents submitted that the terms of the so-called planning permission did not provide any basis in order to qualify as a relevant planning permission. It is necessary therefore to consider the terms of the document in question ("1965/79") and the context in which it came into being. No suggestion was made that it was not proper, at least for the purposes of this appeal, to look beyond the bare wording of 1965/79 and counsel for all parties referred us to correspondence which appeared to them to have some bearing upon the matter.
[63] The application form seeking permission was accompanied by a site plan which showed in imprecise form an area in south Harris of 600 hectares. The estimated period of the operation for which planning permission in principle was sought was said to be "long term - over 50 years". The County Council in 1965/79 stated that it granted "approval in principle for the extraction of minerals from an area at Rodel, Harris". This was made subject to two conditions of which the first condition is of particular relevance. The first condition required that full details of the proposed operation were to be submitted for approval before any work was commenced and the second was concerned with minor exploratory operations. In June of the same year, that is to say some three months later, a map on the scale of 25 inches to the mile was sent to the Council giving details of the "proposed workings", these being located in two areas for "immediate development" and an additional area for "possible future development". After reports had been received from various officials on 23 July 1965 approval was given for this work to proceed and for several years thereafter some quarrying was carried out in the areas described as being "for immediate development".
[64] The reporters recommended that only these three areas and not the large area of 600 hectares should be included as a site in the list of mineral sites kept by the local authority and the Ministers accepted this recommendation.
[65] Counsel for the appellants submitted that 1965/79 was what in its terms it bore to be, namely, a conditional planning consent. It was granted over a large area of land in the knowledge that it was to be a long term operation. It was an approval in principle for the extraction of minerals without precise limit of time and the local authority was therefore committed to the development, a commitment from which they could not escape. All that was required thereafter was for the developers to provide details of the operation. This they proceeded to do in the summer of 1965 when the 25 inch to a mile plan was submitted. Once the details of this submission were approved, as they were, and work started, as it did, in compliance with the details submitted, the planning permission in principle had been given effect. It was to be regarded as the first stage of an operation which would or might ultimately cover the whole site. There was nothing in 1965/79 which prevented the submission of successive applications for approval of details as the quarrying operation proceeded over the years. Accordingly, 1965/79 remained in force when application came to be made for including it on the list of mineral sites for the purposes of Schedule 9 of the Act of 1997 and it was "a relevant planning permission".
[66] Although the concept of outline planning permission had no statutory recognition, except in the case of buildings, in 1965, it appears that in practice this kind of permission, whether it be called outline planning permission or planning permission in principle, was well-known and in use in the case of operations other than building operations. When this species of permission was introduced for buildings by the Town and Country Planning (General Development)(Scotland) Order 1950 the Secretary of State for Scotland in an accompanying circular (DHS Circular No. 51/1950) stated that while the new provision applied only to the erection of buildings,
"This in no way debars local planning authorities from granting permission for other forms of development subject to a condition requiring the subsequent submission of details".
It was submitted that 1965/79 was such a permission. A question arose in the course of the discussion as to whether an outline permission could ever form the basis for inclusion in the Schedule 9 list or whether it inevitably failed to qualify because it was not a detailed planning permission. In my view it is unnecessary to determine this question. I express no opinion thereon and I am prepared to assume for the purpose of our decision that a permission such as 1965/79 is not automatically excluded from consideration because it is merely an outline permission.
[67] The question, however, is whether the terms of 1965/79 in all the circumstances do amount to a relevant planning permission within the meaning of the Schedule. In my judgment this can be determined by an examination of the permissions of March and July 1965 and the surrounding circumstances. The terms of reference for the public inquiry were
"whether there was ever a valid planning consent issued in 1965 and if so whether development work took place to enable any such consent to remain extant".
In my view no question as to the validity of 1965/79 arises. There is nothing inherently invalid in such a consent. The proper question, rather, is what effect does 1965/79 have in the circumstances which have occurred? It is pertinent to look at the terms of the letters from the applicants dated 9 February 1965 which formed the basis on which the application was considered. It is quite clear that the project was tentative. Small-scale blasting was envisaged in order to obtain geological samples for potential customers. The project would not go ahead unless the demand for the particular minerals was sufficient to warrant such a step and no information could be given at that time as to precisely where extractive operations could start. In such a situation, it is entirely understandable that the applicants would wish to receive reassurance from the local planning authority that it was worthwhile making even preliminary preparations and that is why they sought at that stage not a detailed planning permission for a definite project but a permission in principle to cover a large area where possibly in the future some operations might begin.
[68] The local planning authority was evidently in favour of encouraging in 1965 economic development in this corner of Harris and I read 1965/79 as a means of encouraging the applicants to make a start, if they were so minded, by indicating that they had no objection to a project of this nature. To put it negatively, they were not inclined to refuse planning permission. When one studies the first condition of the grant it is clear that executive permission would only be given once very much more was known about the proposed quarry operation. "Full details of the proposed operation" had to be submitted for approval before work could be commenced. It is not surprising that such a strict condition, quite general in its terms, was required since the applicants had not chosen to submit, as the application form required them to, a layout plan of the scale of 25 inches to the mile showing, inter alia, the boundary and acreage of the land under their control and also, particularly relevant to a quarry in operation, "the area proposed to be worked and phases of working". All that had been supplied was a site plan identifying in a general way the land to which the application related and it was on this indefinite basis that the grant was made "in accordance with the plan(s)".[69] In that situation, in my opinion, it cannot be said that 1965/79 was committing the local planning authority to the extraction of minerals in a precise area under reference to a particular project. It clearly envisaged that operational approval would be considered only if and when a further proposal or proposals materialised. Until that event I do not consider that by itself 1965/79 had any material force and effect so far as relevant to the land being listed as a mineral site. When in July 1965 a detailed planning application was made for the working of minerals in the areas referred to, 1965/79 gave colour to the application in the sense that it enabled the local planning authority to consider detailed proposals without having to look again at the question as to whether or not extraction of minerals was desirable as an end in itself. But in my opinion that is the limit of the significance of 1965/79.
[70] I agree with your Lordship in the chair that the "land to which a relevant planning permission relates" means the land in respect of which specific minerals development has been authorised. As it has transpired, the only authorisation which has been made relates to the areas identified in the 25 inch map. The remainder of the large area has not been authorised for development as a mineral site and accordingly cannot be listed. In my opinion the decision reached by the Ministers in accepting the recommendations of the reporters was correct, and I agree with your Lordships that the appeal should be refused.