EARTHLINE LIMITED v Claimant/ First [2002] EWCA Civ 1599

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sullivan J
[2002] EWCA Civ 1599Case No Case No: C/2002/0288Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
EARTHLINE LIMITEDClaimant/ FirstRespondentSECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS And WEST BERKSHIRE COUNCILFirst Defendant/ Second Respondent SecondDefendant/ Appellant
Before
Lord Justice BrookeLord Justice KeeneMr Justice BodeyTimothy Straker QC & Andrew Tabachnik (instructed by Lester Aldridge) for the AppellantDavid Holgate QC & David Forsdick (instructed by Veale Wasbrough) for the RespondentThe Second Respondent did not appear on the appealDate 6 November 2002

Lord Justice Brooke :

This

[1]is an appeal by the second defendant, West Berkshire Council (“the council”), who are the local mineral planning authority, and a cross-appeal by the claimant Earthline Ltd (“Earthline”) from an order by Sullivan J allowing Earthline’s appeal on its first ground of appeal from an order of a planning inspector dated 24th July 2001 dismissing its appeal against the council’s failure to determine its application for the relaxation of a condition on an old mining permission relating to land at Craven Keep, Hamstead Marshall. Sullivan J rejected Earthline’s second ground of appeal. Hence its cross-appeal. The Secretary of State, although a party to the proceedings before Sullivan J, did not appear to support the council's contentions on its appeal to this court.[2]The history of this matter starts in 1946. On 18th June 1946 the Newbury Rural District Council granted permission on an application under an Interim Development Order (“IDO”) for gravel extraction on the land in question, subject to three fairly straight-forward conditions. By section 77 of the Town and Country Planning Act 1947, planning permission was deemed to have been granted under Part III of that Act for the same development and subject to the same conditions. The subsequent consolidating legislation, enacted in 1962 and 1971, maintained that position: see, most recently, paragraph 3 of Schedule 3 to the Planning (Consequential Provisions) Act 1990.[3]The site was worked over many years, with restoration taking place in the late 1970s and early 1980s. Thereafter it was for all practical purposes dormant until the events with which we are concerned in this appeal. The effect of section 7(5) of the Town and Country Planning (Minerals) Act 1981, which enacted one of the recommendations of the 1976 report of the Stevens Committee on “Planning Control over Mineral Workings” was to impose a mandatory time limit of 60 years from 22nd February 1982 on the original permission, so that it would expire on 22nd February 2042.[4]On 22nd January 1992 the then owners of the site applied for the 1946 permission to be registered pursuant to section 22 of and Schedule 2 to the Planning and Compensation Act 1991 (“the 1991 Act”) which had recently come into force. On 22nd September 1992 the council duly issued a notice of registration. On 13th November 1995 application was made for the determination of the conditions to which the permission was to be made subject. On 12th January 1996 the council duly determined those conditions. For the most part these conditions were concerned with the orderly conduct of work on the site. The only condition with which we are concerned on this appeal is Condition 1, which provided that:
“The extraction of gravel shall cease on or before 30th September 2000. All restoration operations, including the removal of all plant, buildings, hardstandings and access roads, but excluding after-care and drainage, shall be completed by 30th September 2001.”
There was no appeal against the council’s determination.[5]It is common ground on this appeal that the council had no power to limit the period of time permitted for extracting gravels on the site in this way. The time limit for the permission was 22nd February 2042. Paragraph 2(1)(c) of Schedule 2 to the 1991 Act provided that the new conditions “must include a condition that the winning and working of minerals … must cease not later than February 21, 2042”. What is in issue is whether the fact that no appeal was lodged against the council’s deviant determination (so that anyone searching the register now would see the condition which limited the length of time the site could be used for gravel extraction) means that the new owners of the site are not entitled now to challenge the validity of the 1996 determination.[6]The remainder of the history can be quite briefly stated. In due course Earthline acquired the site, and on 28th October 1999 they applied pursuant to section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”) for the dates 2002 and 2003 to be inserted instead of the dates 2000 and 2001 into the body of Condition 1. After the date by which the council should have determined this application had expired, and after the time for extracting gravel, as stated in that condition, had expired, Earthline appealed to the Secretary of State on 9th January 2001 against the non-determination.[7]By his decision letter dated 24th July 2001 the Inspector dismissed the appeal. The grounds on which he dismissed it are relevant only to Earthline’s cross-appeal. Earthline duly applied to the High Court for an order quashing the Inspector’s decision pursuant to section 288 of the 1990 Act, and on this application, which was heard by Sullivan J, they raised for the first time the issue which is at the centre of the council’s appeal to this court, namely that the 1946 permission did not expire until 2042, and that the council’s attempt to reduce the time permitted for gravel extraction on the site by imposing Condition 1 in its 1996 determination had no effect.[8]The scheme of the 1991 legislation relating to old mining permissions has now been before the courts on a number of occasions. It is clearly described by Lord Hoffmann in R v North Yorkshire Council ex p Brown [2001] 1 AC 397 at pp 402D-403F. For the purposes of the present appeal it is necessary only to consider the procedure under the 1991 Act for applying for the determination of the conditions to be imposed on a “dormant permission” (see Lord Hoffmann at p 403E). This procedure is set out in section 22 and Schedule 2. Section 22 provides, so far as is material, that:
“(2) An old mining permission shall, if an application under [Schedule 2] to determine the conditions to which the permission is to be subject is finally determined, have effect as from the formal determination as if granted on the terms required to be registered. (3) If no such development has, at any time in the period of two years ending with May 1, 1991, been carried out to any substantial extent anywhere in, on or under the land to which an old mining permission relates, that permission shall not authorise any such development to be carried out at any time after the coming into force of this section unless – (a) the permission has effect in accordance with subsection (2) above; and (b) the development is carried out after such an application is finally determined.”
[9]The arrangements by which conditions for old mining permissions are to be determined are set out in paragraph 2 of Schedule 2. The original application, made pursuant to paragraph 2(2) and (3), suggested a termination date of 21st February 2024, no doubt because of a misprint for 2042 in Mineral Guidance Note 9 which misled the applicant. The council determined the conditions pursuant to paragraph 2(6). Although the conditions differed from the conditions set out in the application, the applicant did not appeal to the Secretary of State pursuant to paragraph 5(2). In those circumstances the application for the determination of conditions was finally determined when the time for appealing against the determination expired (paragraph 10(2)). At that stage the requirements of paragraph 3(2) became operative:
“Where an application to determine the conditions to which an old mining permission is to be subject is finally determined, the conditions must be entered in the appropriate part of [the] register.”
The condition setting out a final date of 30th September 2000 was therefore entered on the register. Earthline then appeared on the scene and sought a two-year extension.[10]Although the council maintained before the judge that it was entitled to limit the permission in the way it did, that contention is no longer pursued. What is in issue on the appeal is whether Earthline is now entitled to mount this challenge to the validity of the condition when its predecessor in title did not appeal against the original determination, and whether the judge was wrong in the exercise of his discretion to quash the Inspector’s decision on this ground.[11]One feature of the statutory scheme contained in the 1991 Act deserves immediate attention. Section 284 of the 1990 Act contains the familiar provision that “except as provided in Part XII of that Act the validity of certain actions on the part of the Secretary of State shall not be questioned in any legal proceedings whatsoever”. Paragraph 9(3) of Schedule 2 to the 1991 Act adds a decision of the Secretary of State on an appeal under paragraph 5 of the Schedule to the other acts mentioned in Section 284. It follows that if the council’s determination had been appealed to the Secretary of State, and the landowner did not then take the matter to the High Court under section 288 of the 1990 Act, the validity of the Secretary of State’s decision on the appeal could not thereafter be the subject of any legal contest.[12]Whatever might be the consequence of this rule, however, on an occasion when a landowner challenged a determination of modern conditions on different grounds from those connected with the invalidity of a condition such as Condition 1 (which the council had no power to impose), the ‘ no certiorari ’ rule in section 284 does not in any event apply to an unappealed determination of a mineral planning authority. The “finality” of its determination of modern conditions would not usually be robust enough in itself to resist a challenge to the validity of one of the conditions on the grounds that the authority had no power to impose it, if that challenge was otherwise sustainable in the context of a judicial review.[13]The judge divided his approach to this issue into two parts. First, he said he could see no reason why Earthline should not have been able to raise the validity of the condition before the Inspector, since it would have been a highly material consideration. In those circumstances there was no reason to prevent them from advancing the challenge on their application to the High Court. He said this because there was no need for any findings of fact to be made, the invalidity of Condition 1 was apparent on its face, and it was incumbent on the Secretary of State when determining appeals to direct himself correctly as to the applicable law. As I understand it, Mr Straker QC, who appears for the council, does not challenge the judge’s willingness to entertain the point on arid procedural grounds. His substantive complaint is that the judge ought to have ruled that it was far too late for a challenge on the validity of the conditions to be launched.[14]This, therefore, leads on to the judge’s ruling on the substantive merits of the issue, which he expressed in these terms:
“I accept that the court has a discretion under section 288. It is not bound to quash a decision even if it concludes that there has been some error of law. The error of law in the present case went to the heart of the decision. Condition 1 was the only condition in dispute. It was vital that its invalidity was acknowledged as the correct starting point for any decision. In some cases the error of law may have become of academic interest, by reason, for example, of the passage of time. That is not the position here. As [Counsel] correctly submitted, this is an issue that will not go away. The validity of Condition 1 can be raised if the development commences and enforcement proceedings are begun, or if there is a prosecution for failure to comply with a breach of condition notice. It can be raised in the context of an application for a certificate under section 192 of the 1990 Act, or in proceedings for declaratory relief. In the light of these potential challenges, it seems eminently sensible to resolve the matter in the context of this decision letter.”
[15]Although he was disposed to challenge the actual decision of the Divisional Court in one of the cases cited to us, Mr Straker did not really attempt to challenge the general propositions of law to which the judge referred. They were conveniently set out in the skeleton argument we received from Mr Holgate QC, who appeared for Earthline, in these terms:
“Under general planning law invalid conditions may be challenged by a number of means: (1) In an appeal under section 174 against an enforcement notice alleging a breach of condition (see eg Tarmac Heavy Building Materials UK Ltd v Secretary of State (2000) 79 P&CR 260, 267-8; (2) As a defence to a prosecution for failing to comply with a breach of condition notice ( Dilieto v Ealing LBC [2000] QB 381; Davenport v Hammersmith and Fulham LBC (1999) 78 P&CR 421; (3) By an application under section 192 of TCPA 1990 for a certificate as to the lawfulness of proposed operations; (4) Proceedings in the High Court seeking a declaration that condition 1 is invalid and that the 1946 permission will last until 2042 ( Hall & Co Ltd v Shoreham UDC [1964] 1 WLR 240; Mouchel Superannuation Fund Trustees v Oxfordshire CC [1992] 1 PLR 97). Such well-established authorities have not been overruled by the comments of Lord Hoffmann in R v East Sussex CC ex parte Reprotech (Pebsham) Ltd [2002] UKHL 8 , [2002] 4 All ER 58 .”
[16]As to the first of these considerations, it should be observed that the effect of Jackson J’s judgment in July 1999 in the Tarmac case was that a condition in a 1952 planning permission (to the effect that a concrete batching plant should be removed from a site once mineral working was completed) was declared invalid and unenforceable 47 years later.[17]Mr Straker argued manfully that this particular statutory scheme precluded a challenge of this kind. He relied heavily on the registration arrangements contained in the statutory scheme under the 1991 Act, and on what Lord Hoffmann said in Brown about the significance of the register as a means of alerting the public to the existence of old mining permissions.[18]In R v Wicks [1998] AC 92 the House of Lords made it clear that on some occasions a party to a planning matter might be precluded from challenging the validity of an action of a local planning authority even when he faced criminal sanctions. It all depended on the proper interpretation of the relevant statute. This principle was reiterated by Lord Irvine of Lairg LC in Boddington v British Transport Police [1999] 2 AC 143 , where he explained the decision in Wicks by reference to the elaborate code contained in the 1990 Act for appeals against enforcement notices. The existence of this code meant that it was inappropriate on a prosecution for breach of an enforcement notice for magistrates to have to concern themselves with difficult points of law which could have been taken either on an appeal against the notice, or, in a rare case, on an application for judicial review.[19]In my judgment, however, the judge was right to hold that the language of the 1991 Act did not preclude a subsequent challenge to the validity of Condition 1, and to be willing to decide the appeal in this way. After all, the landowners had been given by statute an extension of their permission to 2042, and it would need very clear statutory language to prevent their successors from challenging the council’s misuse of power when it reduced the length of the permission so drastically. There was no evidence before us that any member of the public had actually been misled by seeing Condition 1 on the register. If in another case evidence of this kind was forthcoming, a court would have to assess its significance and determine whether to grant a remedy to the landowner in the way that is now familiar on judicial review applications. If Mr Straker’s submissions had been upheld in this case, the result would have had very wide ramifications in the planning field outside the fairly narrow world of old mining permissions.[20]The effect of upholding the judge’s decision will be that Earthline’s appeal will have to be remitted to the Secretary of State who will have power to alter Condition 1 so that it shows that the permission extends to 2042. It is not apparent to me that any of the other conditions would have to be changed, but if the council argues that they should, then appropriate adjustments may be made on the remitted appeal.[21]For these reasons I would dismiss this appeal. It was common ground that if the appeal was dismissed, there would be no need for us to consider or make any order on the cross-appeal.

Lord Justice Keene:

[22]I agree. However comprehensive a code is achieved by the 1990 Act and its associated legislation, the fact remains that there is no equivalent to section 284 of that Act when one is dealing with a decision of a local planning authority or, as in this case, a mineral planning authority. It would take clear and express language to remove from the courts their power to strike down an ultra vires condition and such language does not exist in these circumstances. The House of Lords decision in Wicks was not concerned with whether the courts were prevented altogether or after a certain date from dealing with an allegation of unlawfulness but only with the type of proceedings in which the issue could be raised.[23]Once it is established that the court has the power to intervene, the issue becomes merely one of discretion. That discretion relates only to the question of remedy. In the present case, it is not disputed that the condition imposed was an unlawful one. In principle, an unlawful condition should be quashed, and nothing before us provides any proper basis for refusing to quash in this case. I too would dismiss this appeal. Mr

Justice Bodey:

[24]I agree.

Order

Appeal dismissed with costs. (Order does not form part of the approved judgment)

Cited in 1 later judgment