Stancliffe Stone Company Ltd v Peak District National Park Authority [2005] EWCA Civ 747

Case No A2/2004/1448

[2005] EWCA Civ 747

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

(MR JUSTICE MOORE-BICK)

HQ04X00930

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 17 June 2005

Before

LORD JUSTICE CHADWICK

LORD JUSTICE BUXTON

LORD JUSTICE GAGE

Between

STANCLIFFE STONE COMPANY LIMITEDAppellant

PEAK DISTRICT NATIONAL PARK AUTHORITYRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Mr David Holgate QC & Mr Tim Buley (instructed by Aaron & Partners Llp, Grosvenor Court, Foregate Street, Chester CH1 1HG) for Appellant

Mr Timothy Corner QC & Mr Andrew Fraser-Urquhart (instructed by Messrs Nabarro Nathanson, 1 South Quay, Victoria Quays, Sheffield S2 5SY) for Respondent

Judgment

Lord Justice Chadwick :

[1]This is an appeal from an order made on 22 June 2004 by Mr Justice Moore-Bick in proceedings brought by Stancliffe Stone Company Limited against Peak District National Park Authority. In those proceedings declarations were sought as to the current planning status of two quarries, Endcliffe and Lees Cross Quarries, in or near to the village of Stanton-in-Peak in Derbyshire. The claimant (“Stancliffe”) is the leasehold owner of those quarries. The quarries lie within the area for which the peak District National Park Authority (“the Authority”) is the mineral planning authority.

[2]It is said that the current planning status of Endcliffe and Lees Cross Quarries turns on the true construction of a letter dated 6 February 1952 by which planning permission for the winning and working of stone from those quarries and other quarries – Dungeon and Barton Hill Quarries, Stanton Park Quarry and Palmer’s Pilhough Quarry – was granted by the Minister of Housing and Local Government under the Town and Country Planning Act 1947 and the General Development Order 1950. The issue, in relation to that letter, is whether it granted a single planning permission in respect of all six quarries or four separate planning permissions – it being common ground that (on any construction) Dungeon and Barton Hill Quarries and Endcliffe and Lees Cross Quarries are to be treated as single planning units.

[3]In order to understand how that issue arises, it is necessary to have in mind the relevant provisions of the Environment Act 1995 and the events which have happened since 1995. The statutory provisions are found in schedule 13 (Review of Old Mineral Planning Permissions), which is given effect by section 96 of the Act.

The schedule 13 review scheme

[4]As the descriptive title indicates, schedule 13 to the 1995 Act provides a scheme for the review of old mineral planning permissions; that is to say (in the present context) planning permissions for mineral development granted before 22 February 1982. That was the date on which section 44A of the Town and Country Planning Act 1971 – which required that every planning permission for the mining and working of minerals be subject to a condition as to the duration of the development not exceeding 60 years - was brought into force by the Town and County Planning (Minerals) Act 1981 (Commencement No 1) Order 1982 (SI 1982/86).

[5]The review scheme required the mineral planning authority to prepare lists of the mineral sites in their area. A “mineral site” was defined, for the purposes of the scheme, by paragraph 1(2) of schedule 13. It means:

“(a) in a case where it appears to the mineral planning authority to be expedient to treat as a single site the aggregate of the land to which any two or more relevant planning permissions relate, the aggregate of the land to which those permissions relate; and (b) in any other case, the land to which a relevant planning permission relates.”

And “relevant planning permission” means any planning permission granted after 30 June 1948 for minerals development.

[6]A mineral site may be a Phase I site or a Phase II site; or it may be a site which is neither a Phase I nor a Phase II site. Where the relevant planning permissions which relate to the site have been granted before 22 February 1982 and the site is within a National Park (which is the present case) the site is a Phase I site - paragraph 2(4) of schedule 13. A site which is a Phase I site may be an active site or a dormant site. “Dormant site” is defined by paragraph 1(1) of Schedule 13: “’dormant site’ means a Phase I or Phase II site in, on or under which no minerals developments has been carried out to any substantial extent at any time in the period beginning on 22nd February 1982 and ending with 6th June 1995 otherwise than by virtue of a planning permission which is not a relevant planning permission relating to the site.” 6 June 1995 was the date on which the amendments to the Environment Bill which now form section 96 of, and schedules 13 and 14 to, the 1995 Act were first published.

[7]As I have said, the scheme for review required the mineral planning authority to prepare lists of the mineral sites in their area. Paragraph 3 of schedule 13 required there to be included in what was designated “the first list” active Phase I sites, active Phase II sites and dormant sites. The first list was to indicate, in respect of each site included, the category into which it was said to fall.

[8]Paragraph 9 of schedule 13 enabled the owner of land which was or formed part of a dormant site or an active Phase I or Phase II site to apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site were to be subject. Where the mineral planning authority received such an application they were to “determine the conditions to which each relevant planning permission relating to the site is to be subject” and, thereafter, “any such permission shall from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subject” – paragraph 9(6).

[9]The broad effect of the review scheme, therefore, was to enable the mineral planning authority to impose modern conditions on old mineral planning permissions. But, in that context, it was of importance whether the mineral site to which the relevant planning permissions related was an active site (and, if so, whether it was a Phase I site or a Phase II site) or a dormant site.

[10]Paragraph 10 of schedule 13 applied where, on an application made to the mineral planning authority under paragraph 9 in respect of an active Phase I or II site the authority determined conditions which differed from the conditions proposed in the application and the effect of the conditions as determined was to restrict working rights in respect of the site. In such a case the authority was required to give to the applicant a notice stating whether, in its opinion, the effect of that restriction of working rights would be such as to prejudice adversely to an unreasonable degree(i) the economic viability of operating the site or

(ii) the asset value of the site – paragraph 10(2)(d) of schedule 13. There was no such requirement where, on an application made under paragraph 9 in respect of a dormant site, the authority determined conditions which differed from the conditions proposed (notwithstanding that the conditions as determined would restrict working rights).

[11]The significance of a notice under paragraph 10(2)(d) of the schedule was that if the authority stated in the notice that, in its opinion, the restriction of working rights would be such as to prejudice to an unreasonable degree either the economic viability of operating the site or the asset value of the site – or if an appeal (under paragraph 11(1) of the schedule) from a notice stating that it was the authority’s opinion that the restriction would not have such effect was allowed – the owner would or might become entitled to compensation under Part IV of the Town and Country Planning Act 1990 as if an order made under section 97 of that Act (revoking an existing planning permission) had been confirmed by the Secretary of State under section 98 – paragraph 15(4) of the schedule 13 to the 1995 Act. But, as I have said, there was no requirement to serve a notice under paragraph 10(2)(d) of the schedule where the planning permission which had become subject to more restrictive conditions was a permission in respect of a dormant site; and, in such a case, the provisions in paragraph 15 (pursuant to which there would or might be an entitlement to compensation) had no application.

[12]The list which the mineral planning authority was required to prepare under paragraph 3 of schedule 13 to the 1995 Act (the first list) was to specify the date by which an application was to be made to the authority under paragraph 9 – paragraph 3(4). Paragraph 5 provided for advertisement of the list; and paragraph 8(1) required the authority, no later than the date upon which the list was first advertised, to serve a notice on each person appearing to them to be the owner of any land included within a mineral site, indicating whether the site had been included in the list as a dormant site or an active site. Where the site was an active Phase I site the notice was required to indicate the date by which an application should be made under paragraph 9, and to explain the consequences which would follow if an application under that paragraph were not made by the date specified – paragraph 8(2). And, in such a case, paragraph 8(3) required the authority to send a reminder if no application under paragraph 9 had been received by the date falling eight weeks before the date specified. If the authority failed to do so in time, the date for making the application was extended to a date three months from the date when the reminder was sent – paragraph 8(11).

[13]Paragraph 12 of schedule 13 was in these terms, so far as material:

“(1) Subject to paragraph 8(11) above, where no application under paragraph 9 above in respect of an active Phase I site . . . has been served on the mineral planning authority by the date specified in the first . . . list as the date by which applications under that paragraph in respect of that site are to be made . . . each relevant planning permission relating to the site shall cease to have effect . . . on the day following the last date on which such application may be made. . . . (3) . . . no relevant planning permission which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless – (a) an application has been made under paragraph 9 above in respect of that site; and (b) that permission has effect in accordance with sub-paragraph (6) of that paragraph. (4) A relevant planning permission which relates to a Phase I or II site not included in the first list shall cease to have effect, except insofar it imposes any restoration or aftercare condition, on the day following the last date on which an application under sub-paragraph (1) of paragraph 6 above may be made in respect of that site unless an application has been made under that sub-paragraph by that date . . .”

Paragraph 9(6), as I have said, provides that, where an application is made to the authority under paragraph 9 in relation to a dormant site and the authority determines the conditions to which the relevant planning permission relating to that site is to be subject, the permission has effect thereafter subject to those conditions. (a) an application has been made under paragraph 9 above in respect of that site; and (b) that permission has effect in accordance with sub-paragraph (6) of that paragraph.

[14]The position, therefore, in relation to a Phase I site which is shown in the first list as a dormant site may be summarised as follows:(i) the list must be advertised and

(ii) a notice must be sent to the owner indicating that the site has been included in the list as a dormant site; but

(iii) the local authority is not required to include in the notice an indication of the date by which an application under paragraph 9 needs to be made or to explain the consequences which follow from failure to make an application under that paragraph and

(iv) the local authority is not required to send a reminder;

(v) the existing planning permission ceases to have effect unless and until an application is made and determined under paragraph 9;

(vi) if application is made and new or additional conditions are imposed, the existing planning permission continues in effect thereafter subject to those conditions; and

(vii) there is no provision for compensation notwithstanding that the new or additional conditions restrict working such as to prejudice adversely to an unreasonable degree the economic viability of operating the site or the asset value of the site.

[15]It is pertinent, also, to note that the schedule contains no internal provision for challenging the inclusion of a site in the first list as a dormant site – rather than as an active site. This is in contrast with the provisions in paragraph 6 which allow amendment of the list so as to include a site which has been omitted from the list. The paragraph is in these terms, so far as material:

“(1) Any person who is the owner of any 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 to the mineral planning authority for that land . . . to be included in that list. (2) An application under sub-paragraph (1) above shall be made no later than the day upon which expires the period of three months from the day when the first list was first advertised in accordance with paragraph 5 above. (3) Where the mineral planning authority consider that – (a) the land . . . is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application; or . . . (4) On acceding . . . to an application made under sub-paragraph (1) above, the mineral planning authority shall amend the first list . . . . . . ”

The paragraph includes provision for an appeal to the Secretary of State from the authority’s refusal of an application under sub-paragraph (1). (a) the land . . . is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application; or . . .

The list of mineral sites prepared by the authority

[16]The Environment Act 1995 was enacted on 19 July 1995 – although section 96 and schedules 13 and 14 were not brought into force until 1 November 1995, some three and a half months thereafter. It is, I think, clear that the Department of the Environment had it in mind to publish “Guidance Notes”. The Peak Park Joint Planning Board (the predecessor authority to the Peak District National Park Authority) took the view that the Guidance Notes (then in draft) did not adequately address the issue which, in the event and as the Board had foreseen, has arisen in the present case. On 14 August 1995 the authority’s Director of Planning wrote to the Head of Planning Division at the Department in these terms (so far as material):

“ I have had sight of the 2nd draft of the proposed ‘guidance Notes’ and I wrote to Mr Ashbourne at your Department on 19 and 21 July. At that time I expressed concern that the Act would fail to tackle this problem of old consents effectively. Unfortunately, our fears are being justified already – I write to up-date you on developments at Endcliffe Quarry on Stanton Moor (which was quoted as example No 4 in my letter of 212 July). This gritstone quarry is covered by a Minister’s Consent of 6 February 1952 (copy attached – reference 1898/9/20). This consent covered 4 quarries widely scattered across Stanton Moor – location plan attached. Endcliffe and Lees Cross Quarries have been ‘dormant’ for at least 30 years (as far as we can establish at present). The sites are extremely prominent, are now substantially covered by trees, are a useful wildlife habitat, and are reached by totally inadequate steep, narrow, access roads, through either Rowsley or Stanton Lees and Darley Bridge. For many years the Board has sought voluntary revocation, modification, or other negotiations with the successive leaseholders, but without success. In June 1995 the leases were assigned to Stancliffe Stone Company. On 8 August 1995, machine work and tree felling commenced at Endcliffe Quarry to reopen the overgrown access road – apparently in readiness for either quarrying (or possibly quarry was for tipping – there is an excess waste problem at their other site at Dale View Quarry, currently subject to Enforcement Action). While the Board will strictly enforce whatever degree of control it currently has under the 1952 consent, the case highlights problems with the potential operation of the Environment Act . . . . . . 2. Definition of ‘Site’ for Environment Act purposes Para 2(b) of Schedule 13 defines a mineral site as ‘….. the land to which a relevant planning permission relates’. On a literal interpretation this would seem that a multi-site permission, or one covering a large area, has to be treated as a single site for Environmental Act purposes. The latest draft guidance advises that if part of such a site is active, then the whole site should be treated as active. A physical barrier or physical separation by distance did not appear to be a reason for separate treatment. I would strongly request that this part of the draft guidance is reconsidered so that long dormant physically separated, and clearly defined, parts of a large site can be subject to strict environmental and traffic controls through a working scheme without the risk of a compensation claim for restricting working rights. I trust you will seriously and urgently consider these points prior to publishing the Guidance Note.”

Para 2(b) of Schedule 13 defines a mineral site as ‘….. the land to which a relevant planning permission relates’. On a literal interpretation this would seem that a multi-site permission, or one covering a large area, has to be treated as a single site for Environmental Act purposes. The latest draft guidance advises that if part of such a site is active, then the whole site should be treated as active. A physical barrier or physical separation by distance did not appear to be a reason for separate treatment. I would strongly request that this part of the draft guidance is reconsidered so that long dormant physically separated, and clearly defined, parts of a large site can be subject to strict environmental and traffic controls through a working scheme without the risk of a compensation claim for restricting working rights.

[17]It seems unlikely that those representations had the effect of persuading the department to make any alteration to the guidance notes which it was to publish. The published Guidance Note (MPG14: Environment Act 1995: Review of Mineral Planning Permissions) contains a paragraph, paragraph 15 (Aggregation of two or more permissions), in these terms:

“In all cases, the mpa should have regard to what constitutes a sensible planning unit (having regard to the original intent of the planning permission or permissions where known) and whether unworked land comprised in one permission forms part of the mineral reserves for the operation undertaken on the worked land comprised in another permission. Where the unworked land forms part of such reserves, it should be regarded as part and parcel of the same site and should not be separately classified as a dormant site. In any event, where land covered by a single permission is separated by a physical barrier it is not open to the mpa to treat it as more than one site, although different working programmes and different conditions may be applied to different areas of land within the same site ”

[18]There is some indication, in a letter from the Parliamentary Under Secretary of State dated 22 September 1995 to the local Member of Parliament, that the Department did not recognise the problem which had been identified by the authority’s Director of Planning in such clear terms. That letter includes the following paragraphs:

“[The Director of Planning] mentions the possible resumption of work at Endcliffe Quarry. The Act defines dormant sites retrospectively as those where there has been no substantial working between 22 February 1982 and 6 June 1995. Any dormant quarry which reopened after 6 June 1995 will not lawfully be able to carry on working after the new provisions have been commenced until full modern planning conditions have been approved by the mineral planning authority (mpa). The mpa will be able to enforce against unlawful working in the normal way. No work undertaken by an operator in the months between 6 June 1995 and commencement will count for the purposes of any classification of a site as dormant. We hope to commence the mineral planning provisions in the Act on 1 November. . . . I am confident that the new requirement introduced by the Act will enable significant improvements to be made to these old minerals permissions whether ‘active’ or ‘dormant’ to safeguard the environment and protect local amenity.”

A copy of that letter was sent on to the authority’s Director of Planning. He could have been forgiven for thinking that the Department, at least, was encouraging the authority to treat Endcliffe Quarry as a dormant site, notwithstanding the fact that the permission of 6 February 1952 (a copy of which had been sent to the Department) covered other quarries.

[19]On 9 November 1995 the authority issued a notice setting out the steps that the authority were taking to implement the Act, and a synopsis as to its effect. After explaining that the authority would (as they were required to do) prepare and publish a list of mineral sites in their area, the notice went on:

“Once the list has been published: • If a site has been inadvertently omitted, a land or mineral owner has three months to apply for its inclusion (otherwise the consent will lapse). • There is a right of appeal against a refusal to include a site. • An owner can apply (within 3 months) to postpone the date by which a scheme for an active site has to be submitted (in cases where existing conditions are considered satisfactory). • There is no right of appeal against the actual classification of a site as ‘dormant’ or ‘active’. • For dormant sites no mineral extraction can restart after 1 November 1995 until a scheme of new conditions has been submitted and approved. No compensation is payable for any new conditions imposed. • If no scheme is submitted for an active site by the specified date then the permission will cease to have effect (except for the restoration and aftercare requirements).”

It is not suggested that that was not an accurate summary of the position. The notice set out a number of the statutory definitions; including, in particular, the definitions of “Mineral Site” (“The land to which a relevant planning permission relates”) and “Dormant Site” (“A site in, on or under which no minerals development has been carried out to any substantial extent at any time in the period beginning 22 February 1982 . . .”).

[20]Paragraphs 25 of the guidance note MPG14 addressed the need for care in relation to the classification of dormant sites:

“. . . there may be borderline cases where an owner or operator might object if a site is classified as dormant. There is no right of appeal against an mpa’s classification. Where therefore it is clear to the mpa that there could be a difference of opinion as to whether a site is to be classified as dormant, they should discuss the issues with the owners and operators of the site and should take into account all material evidence and representations before reaching their decision as to whether to classify the site as dormant in the first list of sites. Equally, owners and operators who are in any doubt as to whether or not their site will be classified as dormant should consult the mpa at the earliest opportunity. Mpas are reminded of their duty to act reasonably on the basis of the factual evidence in reaching their decision. In borderline cases where, after consultation with the land and relevant mineral owners, a mpa decide to classify a site as dormant against the owners representations they should give reasons for their decision in writing:”

There is no evidence that any consultation took place in the present case. But it may be that there was no difference of opinion as to the dormant status of Endcliffe and Lees Cross Quarries (on the facts) if those quarries were treated (together) as a separate site; and it does not seem to have occurred to Stancliffe (at the least) at that time that those quarries might be treated (with the other four quarries for which permission had been granted by the 1952 letter) as part of a larger single site.

[21]The list of mineral sites was prepared and published on or about 23 January 1996. It contained a list of active sites, grouped by reference to the dates (1 February 1997, 1 September 1997, 1 February 1998 and 1 September 1998) by which schemes of proposed conditions had to be submitted on applications under paragraph 3 of schedule 13. It contained, also, a list of dormant sites, under the note “Cannot re-open until scheme of new conditions submitted and agreed”. At the same time the authority issued a further notice which contained the following information:

“A site is only included in the list if the land has the benefit of a ‘relevant planning permission’ for mineral working granted before 22 February 1982. The list classifies each site as either ‘dormant’ or ‘active Phase I’. Where a site is classified as ‘dormant’, no development consisting of the winning and working of minerals or involving the depositing of mineral waste may lawfully be carried out until new planning conditions have been submitted to, and approved by, the Board. . . . If you are the owner . . . of a site where there is a valid relevant planning permission for mineral working and you believe that land has been incorrectly omitted from the list, you may apply to the Board by 26 April 1996 for the land to be included in the list as an additional site, or as an additional part of a site already included in the list. If you do not do so, all relevant planning permissions for mineral working relating to that land will cease to have effect . . . ”

[22]The list of active sites included entries in respect of:

“M3902 Dale View/Palmers Pilhough, Stanton Moor Gritstone quarrying/tipping M601b Birchover/Stanton Park Gritstone M5696a Dungeon and Barton Hill Quarries Gritstone”

That list of dormant sites included the entry:

“M5695 Lees Cross/Endcliffe, Stanton Lees Gritstone”

M601b Birchover/Stanton Park Gritstone M5696a Dungeon and Barton Hill Quarries Gritstone”

[23]Each of the sites included in the list was the subject of an individual schedule and plan. Each individual schedule identified the relevant planning permission (or permissions) in respect of that site. In the case of each of the quarries in respect of which permission had been granted by the 1952 letter – that is to say, the quarries to which I have just referred – the individual schedule identified the 1952 letter as a relevant planning permission. Each schedule includes an entry in the form “Permission Code No 1898/9/20, Date of Permission 6/2/1952”. But, in the case of two of the sites (Birchover & Stanton Park Quarries and Dale View & Palmers Pilhough Quarries) there are additional permissions identified as a “relevant planning permission”. In the former case (Birchover & Stanton Park Quarries) the schedule includes the entry “Permission Code No 1898/9/34, Date of Permission – 6/2/1952”; and in the latter case the schedule includes the entry “Permission Code WED/690/321, Date of Permission 20/8/1990”. Those may be seen as examples of aggregation under paragraph 1(2)(a) of schedule 13 to the 1995 Act.

[24]It would have been apparent from the entries to which I have referred – read with an understanding of the provisions in paragraph 1(2) of schedule 13 – that, in preparing the list of mineral sites for the purposes of that schedule,(i) the authority had treated the letter of 6 February 1952 as comprising four distinct planning permissions (each of which was a relevant planning permission within paragraph 1(1)),

(ii) the authority had, in two cases, treated as a single site the aggregate of the land to which one of those distinct planning permissions related with land to which some other planning permission (not granted by the letter of 6 February 1952) related,

(iii) the authority, as a result of that process, had identified four separate mineral sites and

(iv) the authority had determined that three of those sites were to be included as active Phase I sites and that the fourth (Endcliffe and Lees Cross Quarries) was to be listed as a dormant site. And, as can be seen from the applications which it made for the determination of conditions, that was how Stancliffe understood the positions until the end of 2003.

Stancliffe’s applications for the determination of conditions

[25]On 29 January 1997 Stancliffe made an application under paragraph 9 of schedule 13 to the 1995 Act for the determination of conditions in respect of relevant planning permissions relating to Dale View Quarry. The application listed, under paragraph 1.6 of the Application Form - “Planning Permission relating to the Site” – the two planning permissions which appeared on the schedule relating to Dale View & Parkers Pilhough Quarries, that is to say:

“1898/9/20 06.02.52 Mineral extraction/Quarry waste NP/WED/690 20.08.90 Tip stabilisation”

Pursuant to that application conditions were determined by the authority on 30 April 1997. NP/WED/690 20.08.90 Tip stabilisation”

[26]On 15 January 1999, Stancliffe made a further application under paragraph 9 of schedule 13. The application was made under cover of a letter of that date from Glentoal Associates Limited, mineral planning and development consultants. The letter was headed “Re Environment Act 1995 – Review of Mineral Planning Permissions - Endcliffe and Lees Cross Quarries – Stancliffe Stone Company Ltd”. The opening paragraph was in these terms:

“We have been instructed by Stancliffe Stone Company Ltd to submit to your Authority a scheme of operations and planning conditions to permit the re-commencement of mineral extraction operations at the above sites as required by the Environment Act 1995. Both quarries are registered as ‘dormant’ and are subject of a valid planning permission 1898/9/20 issued on 6 February 1952.”

The letter continued:

“As this is an application for the re-opening of a dormant quarry, registered under the Environment Act 1995, no planning application fee is required.”

The only planning permission listed under paragraph 1.6 of the Application Form was:

“1898/9/20 6 February 1952”

The challenge to dormant status

[27]On 12 December 2003 Stancliffe wrote a further letter, again headed “Mineral Review Submission – Endcliffe and Lees Cross Quarries”. It is clear from that letter that the application for determination of conditions under paragraph 9 of schedule 13, made in January 1999, had not been finally considered by the authority. The letter of 12 December 2003 is said to be in response to a request that Stancliffe carry out “various additional studies”; and it was accompanied by copies of an Environmental Statement. But the letter contained this paragraph:

“Also attached, for your information, is the recently received opinion of Timothy Straker QC of 4-5 Gray’s Inn Square. You will see from this emphatic opinion that the Mineral Planning Authority have acted improperly in classifying Endcliffe and Lees Cross a dormant quarry. It is active, phase 1.”

[28]That was, I think, the first indication that Stancliffe were minded to challenge the inclusion of Endcliffe and Lees Cross Quarries as a dormant site in the list prepared by the authority in January 1996. The challenge was, of course, inconsistent with the basis upon which the application for determination of conditions had been made in January 1999; and was inconsistent, also, with the earlier application, in January 1997, for the determination of conditions in relation to Dale View Quarry. But the advantages to be gained by a successful challenge were obvious. If the authority could be persuaded that Endcliffe and Lees Cross ought properly to be treated as an active Phase I site, then(i) quarrying could continue there, under the 1952 permission, until new conditions were determined – indeed, it might be possible to argue that, having regard to the determination in April 1997 of new conditions to which the 1952 permission was subject, it was no longer open to the authority to impose any further conditions on that permission – and

(ii) if new conditions were imposed which restricted working such as to adversely prejudice to an unreasonable degree the economic viability of operating the site or its value as an asset, there was the prospect of compensation.

[29]The opinion of leading counsel, attached to the letter of 12 December 2003, has not been included in the papers before this Court. But it is, I think, possible to identify the basis of the challenge that was then advanced. The arguments are set out in a skeleton argument prepared by the same counsel on 8 May 2004, shortly after these proceedings had been commenced. The substance appears in the following paragraphs of that skeleton argument:

“23. A ‘mineral site’ is defined by paragraph 1 of schedule 13 as ‘the land to which a relevant planning permission relates’. The relevant planning permission is that single permission granted by the Minister on 6 February 1952, which granted consent for the working of a number of quarries. . . . . . . 25 It is clear that the consent issued by the Minister on 6 February 1952 for the working of several quarries is a single planning permission having regard to the following factors: • The express wording of the Minister’s Decision Letter, which constitutes the planning permission, and which conspicuously identifies the permission as a single consent . . .; • The single reference number given by the Minister to the planning permission [1898/9/20]; • The first condition attached to the planning permission which indicated that working at all the quarries for which permission was given should proceed from existing working faces; • The express wording of the planning application, which has become by reference part of the permission, and which conspicuously identifies that a single planning application was made . . . 27. The ‘mineral site’ is thus of all the land permitted by that consent in 1952 to be developed for mineral extraction, including the quarry at Endcliffe and Lees Cross. There is no power to disaggregate the land to which a relevant planning permission relates in order to create more than one minerals site. 28. The Schedule states that a mineral site which is a Phase I site is active if it is not a dormant site. A dormant site is defined as a Phase I site in, on or under which no minerals development has been carried out between 22 February 1982 and 6 June 1995 (paragraph 1(1)). . . . 30. Minerals development was carried on to a substantial extent at Dungeon, Barton Hill, Stanton Park and Dale View quarries in the relevant period, ie on part of the mineral site granted planning permission in 1952. As a result of the work undertaken to the quarries in that period the mineral site constituted by the 1952 permission must have been an active site. It is irrelevant that no work was carried out at Endcliffe and Lees Cross quarry during the relevant period. The Defendant should therefore have declared the whole mineral site, including Endcliffe and Lees Cross quarry, as an active site when it published its List of Mineral Sites.”

It can be seen that the challenge was based on the grounds foreseen by the Director of Planning in his letter to the Department of 14 August 1995. • The express wording of the Minister’s Decision Letter, which constitutes the planning permission, and which conspicuously identifies the permission as a single consent . . .; • The single reference number given by the Minister to the planning permission [1898/9/20]; • The first condition attached to the planning permission which indicated that working at all the quarries for which permission was given should proceed from existing working faces; • The express wording of the planning application, which has become by reference part of the permission, and which conspicuously identifies that a single planning application was made . . .

[30]The authority were asked, in the letter of 12 December 2003, to determine the review within the statutory time scales, by 2 April 2004. The response, in a letter from the authority dated 15 December 2003 was that:

“. . . the status of the quarry is of fundamental importance in the determination of conditions for the site, and the Authority will therefore take its own advice from counsel on the issue. . . . ”

Whether, and if so when, the authority received advice from counsel on the question whether Endcliffe and Lees Cross Quarries had properly been included as dormant quarries in the list prepared in January 1996 does not appear from the documents now before the Court. But it is clear that advice had not been received by the date, 29 March 2004, when these proceedings were commenced by the issue of a claim form under CPR Pt 8.

The letter dated 6 February 1952

[31]The premise which underlies the challenge to the treatment of Endcliffe and Lees Cross Quarries as dormant in the authority’s list of mineral sites is that the letter of 6 February 1952 is the grant of a single planning permission in respect of all six quarries and not four separate planning permissions. It is necessary, therefore, to set out the terms of that letter and the application to which it referred.

[32]The application was made in a letter dated 19 November 1947 from Stanton Quarries Limited to Bakewell Rural District Council. The opening paragraph is in these terms:

“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 Pilhough 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, and the boundaries of the quarries, which include all reservations for future development, edged in RED. Tipping areas at the quarries are shown in GREEN, on the plans.”

The letter goes on to explain that the quarries were occupied by the applicant’s subsidiary companies and that they had been worked for the production of sandstone for over 100 years. The uses of the stone are then set out; and the letter continues:

“Although Sandstone is fairly generally found, the reason for the different locations of the quarries, is explained by the fact that at each different quarry, the texture, hardness, fineness, and colour of stone obtained, is entirely different, and it is only by the production of the various qualities, that we can fill the requirements for which the stone is used. No particular quarry can produce all the different qualities of stone, which we are called upon to supply.”

It is, I think, fair to say that the thrust of the letter is that quarrying at the various quarries listed is carried on as a single commercial enterprise (albeit through three separate subsidiary companies). But, for my part, I do not think that the application provides any real assistance on the question whether the applicant was seeking a single planning permission or separate planning permissions in respect of the six areas enumerated. In particular, I do not think that the opening words “We hereby make formal application for permission to quarry . . .” can fairly be said to identify “conspicuously” that the applicant seeks a single permission. I doubt that the applicant gave any thought to the point; or that it was seen as a point of any importance at that time. No. 1. Dungeons & Barton Hill Quarries. 2. Stanton Park Quarry. 3. Endcliffe & Lees Cross Quarry. 4. Palmer’s Pilhough Quarry. 5. Pringle Wood Quarry. 6. Stanton Quarry. (late Halls).

[33]The letter of 6 February 1952 has been given a Ministry reference (1898/9/20). I do not, myself, think that there is any significance in the fact that that is a single reference; that is what I would have expected. It begins by referring to the application made by the letter of 19 November 1947, which had been referred to the Minister for decision. It sets out, numbered 1 to 6, the quarries listed in that application letter; but records that, following a conference attended by the applicant company and representatives of the local planning authority at Bakewell on 9 February 1949, the applicant had withdrawn Pringle Wood Quarry (numbered 5) and Stanton Quarry (numbered 6) from the application. Accordingly those quarries were excluded from the Minister’s decision. The letter then describes the remaining quarries:

“Dungeon and Stanton Park quarries are immediately north-east of Birchover, while Lees and Endcliffe quarries are just over a mile north-east of Birchover, and Palmer’s Pilhough quarry is about a mile and a half north-east.”

There are set out a number of features which may be seen as reasons for the conditions which the Minister then goes on to impose. The operative paragraph is in these terms:

“In the exercise of his powers under the [Town and Country Planning Act 1947 and the Town and Country Planning General Development Order 1950] the Minister accordingly grants permission for the winning and working of sandstone in the area shown horizontally hatched and shown edged by a bold black line on the accompanying plans numbered 1 to 4 subject to the following conditions: . . . ”

There follow nine enumerated conditions. Of those, three – numbered (1), (8) and (9) - have general application. Of the others, the conditions numbered (2), (3) and (4) relate only to Dungeon and Barton Hill Quarries; the conditions numbered (5) and (6) relate only to Endcliffe and Lees Cross Quarries; and the condition (7) relates only to Palmer’s Pilhough Quarry. The letter concludes with the statement that:

“This letter is issued as the Minister’s formal decision on your Company’s application.”

[34]There is nothing in the letter of 6 February 1952, as it seems to me, to suggest either that the Minister intended to grant a single permission covering six quarries or that he intended to grant four separate permissions, one covering each of the quarries (or pairs of quarries) numbered 1 to 4 in the list. As a matter of first impression, the letter is in the form of a single permission; but, save that the quarries are within a mile or so of each other and are to be operated as a single commercial enterprise, there is no obvious reason why they should be treated as a single planning unit. They are shown on four separate plans. It is difficult to see, for example, why the requirement to paint the quarry buildings at Dungeon and Barton Hill quarries “such inconspicuous colour as may be agreed with the Local Planning Authority” – condition (3) - should be imposed as a condition of winning and working of sandstone at Palmer’s Pilhough quarry (a mile to the north-east); nor why the requirement that quarry waste material at Palmer’s Pilhough quarry should be disposed of in a stipulated area adjacent to that quarry should be a condition of working Dungeon and Barton Hill quarries. But that is not to suggest that they could not be – section 14(1) and (2)(b) of the Town and Country Planning Act 1947. I think it is impossible to be confident that either construction – a single permission or four separate permissions – is plainly correct; or that either is plainly wrong.

[35]The judge reached the conclusion that the letter of 6 February 1952 contained four separate permissions for planning purposes, not one single permission. He did so for the reasons which he set out at paragraphs 18 and 19 of his judgment,

[2004] EWHC 1475

“18 Two factors seem to me to be of . . . 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 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 . . . 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 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 applications and the permission.”

[36]If I had been required to decide the question of construction for myself, de novo, I suspect that I would have reached the opposite conclusion. I think that I would have held – really as a matter of impression – that the letter of 6 February 1952 contained a single planning permission. But I am not prepared to hold that the judge was wrong to reach the conclusion that he did. First, because I take the view that where it cannot be said that there is one answer to a question of construction which is plainly correct – so that a different answer must be incorrect - an appellate court should be slow to substitute its opinion (reached, as I have said, really as a matter of impression) for the opinion of a careful and experienced judge. And that view is reinforced, in the present case, by the fact that the minerals planning authority plainly appreciated the point which has now been taken at the time when they decided to include Endcliffe and Lees Cross Quarries as a dormant site in the list prepared in January 1996 – and that they did so with the apparent approval or encouragement of the Department of the Environment. That is not, of course, to say that the court has no power to quash a decision based on an incorrect construction of a planning permission – on an application made at the proper time and in the proper form – but it is to recognise that the court should give weight to the opinion of an authority charged with the task of reaching a decision in the course of implementing the old minerals planning permissions review scheme in circumstances in which(i) Parliament has not thought it necessary to provide an appeals process and

(ii) the authority has identified, correctly, the question that it needed to decide. In this field it is pertinent, I think, to keep in mind the remarks of Lord Hoffmann in Moyna v Secretary of State for Work and Pensions

[2003] UKHL 44

, [20],

[2003] 1 WLR 1929

, 1934, (albeit in a rather different context) that:

“In any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecisionand to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way: see George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, 815-816. I respectfully think that it was unrealistic of Kay LJ to think that he was able to sharpen the test to produce only one right answer. In my opinion the commissioner was right to say that whether or not he would have arrived at the same conclusion, the decision of the tribunal disclosed no error of law.”

[37]The second reason why I am not prepared to hold that the judge was wrong to reach the conclusion that he did on the question of construction is because it would serve no purpose to do so. Even if the judge had come to the contrary conclusion, he would have been right to dismiss the claims in these proceedings for the additional reasons which he gave. It is to those additional reasons that I now turn.

These proceedings

[38]As I have said, these proceedings were commenced on 29 March 2004. The claimant sought declarations in the following terms:(1) that the relevant minerals site comprised all of the quarries granted planning permission by the Minister in 1952,

(2) that the minerals site was an active site,

(3) that the 1952 planning permission remained alive and

(4) that Endcliffe and Lees Cross Quarries could be worked in accordance with the 1952 planning permission and the conditions attached thereto. In the alternative, the claimant sought declarations that the authority had failed to serve a reminder in respect of the single site (as it would have been required to do, under paragraph 8(3) of schedule 13, if the site were an active Phase I site) and that, accordingly, it remained open to the claimant to submit an application under paragraph 9 until the expiry of three months from the date (in the future) when the authority did comply with that obligation (as would be provided by paragraph 8(11) if the authority had failed to comply with paragraph 8(3)).

[39]The judge refused those declarations and dismissed the claim – as was inevitable given his decision that the letter of 6 February 1952 contained four separate planning permissions rather than a single planning permission. But he went on to explain why, even if he were wrong as to the construction of the letter, the claim must still fail. His reasoning may, I think, fairly be summarised as follows:(i) The list could not be read in any way other than as a list which treated the six quarries as, together, comprised in four separate sites, three of which were active and one of which (the Endcliffe and Lees Cross Quarries site) was dormant;

(ii) if the decision to draw up the list in that way were wrong, that decision could have been challenged by way of judicial review and the list (or the relevant entries) quashed, “but it was far to late now to pursue a remedy of that kind” – paragraph 28 of the judgment;

(iii) unless the list were capable of challenge by way of declaration, it was determinative of the position as far as the four sites were concerned, and

(iv) it would be wrong for the court, in the exercise of a discretion to grant or withhold declaratory relief, to grant declarations in circumstances when the time for challenge by way of judicial review had long passed.

The judge elaborated that fourth point at paragraph 45 of his judgment:

“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 bodies 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 Cross 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 it would be appropriate for the court to exercise its discretion in favour of granting relief by way of declaration.”

This appeal

[41]Permission to appeal was refused by the judge. The appeal is brought with the permission of this Court granted on 4 August 2004. In granting permission Lord Justice Carnwath observed that it was arguable(i) that the judge gave insufficient weight to the terms of the letter of 6 February 1952 and

(ii) that the delay in challenging the list should not have been regarded as determinative in the absence of actual prejudice. It may have been the latter observation that prompted the contention, raised by the respondents’ notice filed on 26 August 2004, that the judge ought to have concluded that the present proceedings were an abuse of process:

“. . . being an attempt to raise in an action for declaratory relief matters solely of public law which ought to have been dealt with by action for judicial review. The Court cannot proceed on the basis that no prejudice would be caused in the event that an extension of time for an application for judicial review was permitted.”

To my mind, that issue lies at the heart of the present appeal. The issue had been raised before the judge – as appears from paragraphs 39 to 44 of his judgment – and, although he rejected the phrase “abuse of process” as an apt description of the claim in this case, it is clear that he had that issue in his mind when he made the observations which he did in paragraph 45 of his judgment.

[42]In its appellant’s notice Stancliffe sought in this Court, as it had sought before the judge, declarations in these terms:

“3. That the 1952 planning permission remains alive” and “ 4. That Endcliffe and Lees Cross Quarries can be worked in accordance with the 1952 planning permission and the conditions attached thereto”

. The problem with which the appellant is faced, of course, is that declarations in those terms would purport to permit that which it was Parliament’s clear intention to forbid.

[43]Paragraph 12(4) of schedule 13 to the 1995 Act provides that a relevant planning permission which relates to a Phase I site not included in the first list shall cease to have effect (save in so far as it imposes any restoration or aftercare condition) on the day following the last date on which an application may be made (under paragraph 6) for the site to be included in the list. And paragraph 12(3) – which has effect subject to paragraph 12(4) – provides that no relevant planning permission which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless an application has been made under paragraph 9 in respect of that site; and then only subject to conditions determined pursuant to such application. Read together, the effect is that whether Endcliffe and Lees Cross Quarries are treated as a discrete, but dormant, site (which is the position as shown in the 1996 list) or as part of a larger composite site (which is not shown, as such, on the list) the 1952 permission no longer authorises the carrying out of minerals development at that site.

[44]In my view it is not open to the court to make a declaration which purports to permit that which it was Parliament’s clear intention to forbid. The court cannot make the declaration in the terms sought under 3 and 4 while the list remains – or is read - in its present form. The court would need, first, to be satisfied that it can set aside – or, in some other way, go behind – the list prepared by the authority in January 1996. And, in that context, it is important to keep in mind that there was no application before the judge – and there is no application in this Court – to set aside the 1996 list. Such an application – seeking, as it would, a public law remedy - would need to be made by way of judicial review proceedings. Counsel for the appellant – mindful, no doubt, of the formidable difficulties which an application to proceed by way of judicial review to challenge a decision made in January 1996, since acted upon and not challenged in the court below – made it very clear in this Court that he was not seeking to proceed by that route.

[45]In an attempt to meet the problem that the court cannot make a declaration in the terms sought under paragraphs 3 and 4 of the appellant’s notice, as filed, counsel for the appellant sought (by way of proposed amendment) declarations in a different form. As they eventually emerged – some days after the completion of the oral hearing of the appeal – the declarations sought were:

“(1) that the quarries referred to in the single planning permission with Ministerial Reference 1898/9/20 (‘the 1952 planning permission’) shall be treated as comprising one mineral site (‘the mineral site’) for the purposes of the first list made under para 3 of Schedule 13; (2) that the mineral site is an active site; (3) that the 1952 planning permission remains alive; (4) that Endcliffe and Lees Cross Quarries can be worked in accordance with the 1952 planning permission and the conditions attached thereto, subject to any conditions determined pursuant to any application made under para 9 of Schedule 13; and (5) that under para 12(1) of Schedule 13 the Respondent may agree with any persons falling within para 9(1) above a date by which applications under para 9 of Schedule 13 may be made in respect of that site.”

It is proposed that declarations in those terms should be made upon the appellant’s undertakings: (i) to agree, in accordance with paragraph 12(1) of schedule 13, to such date (not being earlier that 42 days from the making of the order) as may be specified by the authority for the making of an application under paragraph 9 in respect of Endcliffe and Lees Cross Quarries; and (ii) to make an application under paragraph 9 by such date as may be agreed. The appellant did not pursue the alternative claims to a declaration that the authority had failed to serve a reminder under paragraph 8(3) of schedule 13, and a declaration that it could rely on the extended period under paragraph 8(11).

[46]The premise which underlies the declarations now proposed is that the 1996 list – which does, of course, include all the quarries which are the subject of planning permission granted by the 1952 letter– should be read as if all those quarries were listed as one single site, and that that site was included as an active Phase I site. It is recognised – as it must be – that the six quarries are not listed as a single site: they are listed as four separate sites. But, it is said, the court can overcome that difficulty by applying the “presumption of regularity”, as explained by Sir Nicolas Browne-Wilkinson, Vice-Chancellor, in Calder Gravel Limited v Kirklees Metropolitan Borough Council

(1989) 60 P&CR 322

. The court can read the list as if it had been drawn in the form which (as the appellant contends) the law required.

[47]The judge rejected the submission that the list could be read as if it had been drawn so as to include the six quarries in a single site. He explained that the facts in the Calder Gravel case were quite different from those in the present case. In the Calder Gravel case the question was whether an outline planning permission had been granted in 1946. All parties had acted on the basis that there had been a formal grant of permission; but, some 40 years later, no document containing a formal grant could be found. The Vice-Chancellor was content to apply an evidential presumption. He treated long-term enjoyment of a right which could only have come into existence by virtue of a formal grant as evidence that a formal grant had once existed. As he put it (ibid, 339):

“The . . . 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.”

[48]In the present case there is no room for an evidential presumption. The facts are known. As the judge pointed out, at paragraph 26 of his judgment, “all the evidence needed to enable the court to reach a decision is available in the form of the list itself”. He went on to say this (ibid):

“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.”

In my view the judge was plainly correct to take the view that he did on this point.

[49]It follows that the appellant cannot make good the premise which underlies the declarations which it now seeks. But its difficulties do not end there. If the court were persuaded to make a declaration in the terms of that sought in the amended paragraph (1) – that the six quarries are to be treated as comprising one mineral site for the purposes of the first list – it would then be necessary to ask whether there had been an application by “any person who is the owner of any land [which] is or forms part of [that] site to determine the conditions to which the relevant planning conditions relating to that site are to be subject” (paragraph 9(1) of schedule 13).

[50]If the answer to that question is “No” – as the declaration sought under additional paragraph (5) seems to suppose and as I think is the better view – then each relevant planning permission relating to the six quarries (or any one or more of them) has long since ceased to have effect (paragraph 12(1) of schedule 13) whichever of the dates actually specified in the 1996 list is taken as the date by which applications were to be made. It is in an attempt to meet that difficulty that appellant seeks the additional declaration (5): that the authority may agree with any person falling within paragraph 9(1) in relation to the single site a date by which applications under paragraph 9 may be made in respect of that site. And it is in an attempt to meet that difficulty that the appellant offers the undertakings to which I have referred. But the court is not invited to direct the authority that it must agree a new date by which applications are to be made; and, perhaps more pertinently, the court is not invited to direct that other “persons falling within para 9(1) in relation to the mineral site in (1) above” must also agree a new date.

[51]The declaration sought under paragraph (5) recognises, but fails to confront, the problems arising from the fact that (as we were told in the course of the hearing) the six quarries are not now all in the same ownership – in particular, they are not all owned by the appellant. There is no obvious reason why an owner of one of the other quarries – not bound by any decision in these private law proceedings – should accept that whatever existing determination of conditions under paragraph 9 of schedule 13 it may have obtained in relation to its quarry some years ago is of no effect; and that it must now agree to make a new application. And, as it seems to me, there is no basis upon which – in these proceedings – the court could require that.

[52]Other, but no less intractable, problems arise if the answer to the question “has there been an application by any person who is the owner of any land which forms part of the single composite site to determine the conditions to which the relevant planning conditions relating to that site are to be subject” is “Yes”. Paragraph 9(6) of schedule 13 requires that where the authority receive an application under paragraph 9, they “shall determine the conditions to which each relevant planning permission relating to the site is to be subject” and any such permission shall “from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are [so] determined”. The guidance note MPG14, at paragraph 64, explains the position in these terms:

“Because it is open to any person who is an owner or tenant of any part of the site . . . to apply for postponement of a review date or for the determination of new conditions, it is possible for there to be more than one application in respect of the same site. The Act provides that each eligible person may make only one application for postponement or determination of conditions. However, if there is more than one person eligible to apply and each makes a separate application, the mpa must treat all the applications as a single application served on the date when the latest application was made, and must notify each applicant of receipt of the applications and their determination accordingly. Where the mpa have already determined an application, then no further applications may be made by any person.”

The effect, therefore, of the determination of conditions by the authority, on an application by any person who is the owner of any land which forms part of the single composite site to determine the conditions to which the relevant planning conditions relating to that site is to be subject, is that no further application to determine conditions can be made by any person who is the owner of other land which forms part of the same single site.

[53]The point can be illustrated by taking Dale View Quarry as an example. An application under paragraph 9 was made in relation to that quarry on 29 January 1997. On the basis that, as the appellant now contends, the list had to be read as if the six quarries comprised a single site, that application would be seen as an application by a person who was the owner of land which formed part of the composite site. The authority determined conditions pursuant to the application. It is not now open to the authority to determine conditions on any further application relating to the single site. It might be said that the application was incomplete because it failed to identify all planning permissions relating to the composite site. It omitted reference to the permission granted under reference 1898/9/34 in relation to Birchover and Stanton Park Quarries which (on the basis for which the appellant contends) were part of the single site in 1997. But that leads only to the conclusion that no application was made in relation to the site. If the application is treated as properly made, no further application can be made. A declaration in the form of paragraph (5) would be meaningless; and the undertakings offered are without substance.

[54]These problems stem from the attempt to challenge in a private law action for declaratory relief matters solely of public law which ought more properly to have been raised (if at all) by action for judicial review. I accept, of course, that a court has jurisdiction to grant a declaration, in a private law action, that a planning condition is invalid. The jurisdiction to do so was recognised by this Court in Mouchell Superannuation Fund Trustees and another v Oxfordshire County Council

[1992] 1 PLR 97

, 102C-D, and in Earthline Ltd v Secretary of State for the Environment

[2003] 1 P&CR 24

, [15], [2003] JPL 715, 719. I accept, also, that an invalid planning condition in a planning permission may be challenged long after the date on which the permission was granted. Earthline is an example of such a case. Another example is found in the decision of Mr Justice Jackson in Tarmac Heavy Building Materials UK Limited v Secretary of State for the Environment, Transport and the Regions and another

(1999) 79 P&CR 260

. Those were not cases in which the court made a declaration: in each the court quashed a decision contained in an inspector’s decision letter. But I do not distinguish them on that ground. The distinction is that, in those cases, the challenge was to a condition in an individual planning permission. There was no reason to think that anyone, other than the land owner, would be affected. The position in this case is very different. The 1996 list is intended, under the old mineral permissions review scheme, to be a definitive document on which the owners of land forming any part of the sites included in it, and members of the public living in the area, can rely in arranging their affairs. The court has power to quash a decision that a group of quarries should be included in that list as a single site, or as multiple sites – and power to quash a decision to classify a site as dormant rather than active – but the proper working of the scheme depends on those powers being invoked, and exercised, at an early opportunity. If the scheme is to work as intended, a challenge to the list should be made before the dates (specified in the list) at which applications are to be made and conditions determined (under paragraph 9). The time limit for applications under paragraph 6 (three months) provides an analogy. A challenge by way of judicial review, if brought within the time prescribed by the Civil Procedure Rules (also three months), would meet that requirement. A challenge in an ordinary civil action some eight years later does not.

Conclusion

[55]For those reasons I would dismiss this appeal.

Lord Justice Buxton:

[56]I gratefully adopt the statement of background and analysis of issues in the judgment of Chadwick LJ. I agree with him that this appeal should be dismissed.

[57]For my part, I would hold that the letter of 6 February 1952 contained four separate permissions, for the reasons given by the judge and set out by my Lord in his paragraph 35, reasons that I would respectfully adopt. If I had construed the letter in a different sense, I would not have thought it right to withhold that view out of deference to the opinion either of the judge or of the minerals planning authority. Although the matter does not arise for decision, I need to explain that point, because it may, with respect, differ somewhat from the approach taken by my Lord.

[58]The question posed by the letter of 6 February 1952 is as to the construction of a document that creates legal rights. There can only be one effect in law of such a document, however much there may be differences of opinion as to what that effect is. The appellate court in determining that effect will give great weight to the opinion of the trial judge: but if it concludes that the effect is different from that perceived by the judge, then I would think it obliged to declare that its construction, and not that of the judge, represents the law.

[59]So far as the minerals planning authority is concerned, where a body is charged by Parliament with making practical judgements on issues of fact, as was the case in Moyna v Secretary of State

[2003] 1 WLR 1929

, then very great weight must be given to that body’s judgement. But the issue as to the letter of 6 February 1952 does not involve such a decision. Rather, the issue is as to the construction of the legal document that sets the context of and provides the vires for the authority’s handling of subsequent applications. How the authority perceived the terms of that document cannot be dispositive, or even relevant, if its perception involved an error of law.

[60]However, I fully agree with my Lord that it is not necessary to come to a final determination of any of these questions, because the proceedings fail in any event as an abuse of process. The time for challenging the effect of the list was when it was prepared, in 1996, and by means of public law proceedings. That is not because the issues are ones of public law in a technical sense but, as my Lord points out in his paragraph 54, because the list addressed matters of widespread and very important public interest. That is amply demonstrated by the concerns very properly expressed by the authority’s Director of Planning in his letter of 14 August 1995, set out by my Lord in his paragraph 16. This need for promptitude in bringing challenges to public law decisions that, if successful, will have a wide public impact is not to be avoided by casting the complaint in a private law form, the object or (as in this case) the effect of which is to by-pass the formal rules of judicial review.

Lord Justice Gage:

[61]I too agree that this appeal should be dismissed.

[62]I only add a few words of my own on the construction of the letter of 6 February 1952. For my part, I suspect that neither the Minister nor the applicant was concerned about whether the application was for a single permission or four permissions. Like Chadwick LJ, I find it very difficult to determine whether the letter of 6 February 1952 is to be construed as granting four permissions or one. It seems to me much more likely that this question was wholly irrelevant to either party at that time.

[63]In the circumstances, for the reasons given by Chadwick LJ, I am not prepared to hold that the judge was wrong to reach the conclusion that he did on the question of construction.

[64]However, I agree with both Chadwick LJ and Buxton LJ that it is not necessary to come to a final determination on this question because the proceedings fail in any event as an abuse of process.