Berry & Marshall (Bolton Wood) Ltd, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs & Ors [2011] EWCA Civ 636

[2011] EWCA Civ 636Case No C1/2010/2405IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
[2010] EWHC 2367 (Admin)
ON APPEAL FROM QUEEN’S BENCH DIVISION,
ADMINISTRATIVE COURT
HIS HONOUR JUDGE BEHRENS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/05/2011
Before
LORD JUSTICE MAURICE KAY(Vice President, Court of Appeal, Civil Division)LORD JUSTICE CARNWATHLADY JUSTICE HALLETT
Between
THE QUEEN ON THE APPLICATION OF BERRY & MARSHALL (BOLTON WOOD) LTDAppellantSECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS & ORSRespondent
John Barrett (instructed by Walker Morris) for AppellantJames Maurici (instructed by Litigation & Prosecutions Team, Defra Legal) for RespondentHearing Hearing date: Tuesday 17th May, 2011
Judgment
[1]This is an appeal from the decision of HH Judge Behrens, sitting in the High Court. He dismissed a statutory challenge to the refusal by a planning inspector of a “PPC permit” for tipping of waste on a site within Bolton Woods Quarry, near Bradford in Yorkshire. A pre-condition for the grant of such a permit was that planning permission for the relevant activity either existed or was not needed. The inspector held that the pre-condition was not satisfied. Her decision was upheld by the judge.[2]The inspector described the quarry area as follows:
“a widely excavated area which presents principally in the form of a single extensive void. The active quarry face on the east side of the void is now advancing in a generally north easterly direction following the bed of Elland Flag stone in the area subject to express planning permissions. Newly-worked and crushed stone are stockpiled within the central area of the void. The western area of the void contains substantial mounds of older, mixed material. Some of this material has been engineered to form a broad, elevated bund which separates the quarry from a new area of housing to the north-west and supports a haul road up to the as yet unworked zone beyond the quarry face. On the far west side of the site irregular heaps largely overgrown extend away from the face. Other finer material rests high up against part of the old quarry faces.”
The application related only to a part of the quarry (“the application site”), defined by reference to the area for which a Waste Management Licence had been granted in 1983 under the legislation then in force.

The judge conveniently encapsulated the issue as he understood it:

“It was common ground that there was no express conventional grant of planning permission covering the relevant use at the site. However the Claimant contended that planning permission existed as it was granted by a General Development Order ("GDO"). In particular it was the Claimant's case that: 1. planning permission was permitted under Class 8, D of the 1995 GDO or 2. by reference to the rights under Class XIX(3) of the 1950, 1963, 1973 or 1977 GDO It is not in dispute that in her decision the Inspector dealt adequately with the argument under the 1995 GDO. It is, however, the Claimant's case that she did not deal adequately or at all with the alternative argument under the historic GDOs.”
[4]The argument under the 1995 order failed because that permission was subject to a precondition that tipping had started by July 1948. The inspector found against the appellants on that issue, and that finding is not challenged. The argument before us therefore turns on what were described as the “historic GDOs”, which contained no such precondition. To understand the argument it is necessary to refer first to the relevant statutory provisions.

Statutory provisions

[5]Under the Landfill (England and Wales) Regulations 2002, reg 10(4)(b):
“In the case of an application for a permit that will authorise the carrying out of a specified waste management activity at an installation… the permit shall not be granted unless- (b) in the case of an installation where the use of the application site for the carrying out of that activity requires planning permission granted under the Town and Country Planning Act, such planning permission is in force in relation to that use of the land.”
Applying that to the present case, the relevant waste management activity was the deposit of inert waste. It was therefore necessary to establish that use of the application site for the carrying out of that activity either was covered by planning permission or did not need it. (b) in the case of an installation where the use of the application site for the carrying out of that activity requires planning permission granted under the Town and Country Planning Act, such planning permission is in force in relation to that use of the land.”[6]Issues as to the need for, or existence of, planning permission are governed by the Town and Country Planning Act 1990, and orders made under it. As is well known, “development” may in general consist of an “operation” or “a material change in the use” (s 55(1)). Deposit of waste material is governed by special provisions, under which it is treated as involving a material change of use. This is the effect of section 55(3):
“For the avoidance of doubt, it is hereby declared that for the purposes of this section – (b) the deposit of refuse or waste material on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if – (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site”
Applying that to the present case, tipping within the existing excavations and below the surface of adjoining land did not require permission so long as it did not extend the superficial area of the pre-existing deposit. (b) the deposit of refuse or waste material on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if – (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site”[7]Planning permission may be granted either by the local planning authority or the Secretary of State on a particular application, or by a “development order” made by the Secretary of State (s 58). A succession of “General Development Orders” (or “GDOs”) dating from 1948, have granted permission for defined categories of development, including the deposit of waste. The terms of these orders have varied over that period, as appears from the summary in the judgment.[8]The relevant current order is the General Permitted Development Order 1995, which (by Schedule 2 Part 8D) grants permission for the deposit of industrial waste within a site used for that purpose in July 1948. The 1988 GDO, which was revoked by the 1995 Order was in similar terms. As has been noted, there is no challenge to the inspector’s finding that 1948 use was not established.[9]The earlier GDOs granted permission for deposit of waste in less restrictive terms. The sequence is described by the judge (para 28-9). It is sufficient to refer to the terms of the 1977 GDO (current when the 1983 licence was granted). Class XIX granted planning permission for:
“[t]he deposit of waste materials by, or by licence of a mineral undertaker in excavations made by such undertaker and already lawfully used for that purpose so long as the height of such deposit does not exceed the level of the land adjoining any such excavation.”
The permission continued in those terms until the 1977 GDO was revoked and replaced by the 1988 Order.

The appellants’ case

[10]The judge quoted an Opinion dated January 2009 by Mr Williamson, a solicitor at Walker Morris, who also appeared for the company at the inquiry. According to the judge, this was before the Inspector, and was adopted by Mr Williamson as part of his submissions. It is also adopted by Mr Barrett who has appeared before us. Mr Williamson accepted that the “historic GDOs” as such had been revoked by subsequent orders. However, as he put it:
“This begs the question, therefore, whether any PD rights acquired under the 1977 GDO prior to the revocation can still be relied upon afterwards….”
He relied by analogy on a planning inspector’s decision relating to revocation of a GDO permission by what is known as an “Article 4 Direction”:
“In an appeal case relating to an enforcement notice issued by West Oxfordshire District Council [1987] JPL, 663, ... the Inspector took the view that if it had been Parliament's intention that Article 4 directions could have the effect of making a GDO permission cease to apply after operations had been commenced in reliance on it, but before completion, it is likely that explicit provision would have been made to that effect. Accordingly where the development concerned consists of a single operation, and it has been commenced but not completed, it can be completed notwithstanding an Article 4 direction removing permitted development rights. Whilst not exactly the same context here, there appears to be no reason why the same principle would not apply when an Order itself is revoked. If the revocation of permitted development rights could prevent the completion of operations already commenced, it would be a de facto revocation of planning permission and it seems unlikely that this is what Parliament would have intended, particularly without compensation being payable. Therefore, in my view, provided the Company could demonstrate that its tipping operations are to be viewed as a continuous operation, the revocation of the 1977 GDO would not preclude the Company from relying on those rights today…”
(emphasis added)[11]The present inspector did not in terms address this argument. Of the historic GDO she said simply:
“The evidence is that Counsel's opinion was obtained in 1983 and confirmed that the importation of waste materials was permitted development under Class XIX(3). However, this particular right of permitted development within Class XIX was removed by the 1988 General Development Order, and its removal persisted in subsequent Orders. The removal of this right in 1988 was not retrospective in the sense that it did not render unlawful the deposit of such waste which had been carried out under Class XIX before the 1988 GDO became operative. But the deposit of such waste was not permitted by Class XIX to continue after 1988 in quarries where it had previously taken place.”
[12]It is fair to point out that the last sentence, while accurate as far as it goes, is not the full story. Even if tipping was no longer permitted after 1988 by Class XIX of the GDO, it could continue (by virtue of s 55(3), rather than a GDO), provided it did not extend the superficial area of the existing deposits. However, Mr Williamson’s argument went much further: provided the tipping after 1988 was simply a “continuation” of the permitted tipping activity which had supported the 1983 licence, it required no further permission even if the superficial area were extended.[13]That was how Foskett J understood the argument, when granting permission:
“… the Inspector did not deal adequately or at all with the argument that, notwithstanding the effect of the 1988 GDO, if there were extant rights to tip prior thereto and any continued tipping represented merely a continuation of that use, those rights could be relied on post- the 1988 GDO for the purpose of enabling the grant of the necessary permit under the 2000 Regulations'”

The judgment below

[14]The judge referred to section 55(3), and reviewed the authorities which showed that the categorisation of waste-tipping for planning purposes was, as he put it, “something of a peculiarity”. He adopted the approach of Bridge J in Ratcliffe v Department of the Environment [1975] JPL 728, commenting on the predecessor of that section:
“By implication it would seem to follow that if a quarry has already been used for tipping refuse, the further tipping of refuse does not involve a material change unless the limitations are exceeded.”
As has been seen, one of those limitations was that the superficial area of the tip should not be extended. It followed that, at the time of the 1983 licence, each prospective extension of the superficial area of the tip would involve a new act of development, but it would be permitted by the 1977 GDO.[15]As to the effect of revocation, the judge distinguished the West Oxfordshire case referred to in Mr Williamson’s Opinion, because it related to operational development not a material change of use. He referred to two other cases relating to cancellation of GDO permissions by Article 4 directions. In Cole v Somerset Council [1957] 1 QB 23 there had been a material change of use from a golf club to a caravan site. At the time of the change it was permitted by the GDO. It was held that the permission could not be withdrawn so as to affect the legality of the development which had already taken place. In South Bucks DC v SSE [1989] 1 PLR 69 the issue related to a GDO permission for temporary or intermittent uses (28 days or 14 days in any year). Nicholls LJ said: “Class IV.2 is concerned with temporary uses of land. By definition, the change of use permitted by class IV.2 is not permanent. Further, the period for which temporary uses may be made of land is confined to 28 days in all (14 days in some instances) in any one calendar year. The occupier of the land is permitted to use his land for any purpose he may choose, except as a caravan site, but on a temporary basis only. In my view, on each occasion when the normal use of land is replaced by the different, temporary use, there is a change of use on which the article 3 permission bites. On each occasion, to use the language of article 4, a development is carried out…. “ It followed that the removal of the permission by an Article 4 direction, while not affecting the legality of past temporary uses, would mean that any future such uses were unauthorised.[16]On the basis of these authorities, the judge accepted the submission of Mr Maurici (for the Secretary of State) as to the position in the present case:
“Prior to 1988, each individual deposit of waste on a site was granted planning permission by the historic GDOs where the superficial area of the deposit was extended so long as the height was not extended above the height of the surrounding land; In 1988, that general grant of planning permission was revoked – without any saving provision. Thereafter, any fresh deposit of waste which either extended the superficial area of the deposit or the height of the deposit above that of the adjoining land required an express grant of permission by the local planning authority;”
[17]He agreed that the inspector had not herself dealt adequately with the historic GDO argument, but he thought it caused no prejudice. “54. The Claimant was applying for a licence for the whole of the area contained in the 1983 Waste Licence (as shown in the plan on page 309). There was no express grant of planning permission. It therefore had to show (under regulation 10(4)(b)) that there was a deemed planning permission for the deposit of waste on the whole of the site. In the light of the legal analysis set out in section 3 above the Claimant had to show that prior to 5th December 1988 it had deposited waste on the whole of the site. Otherwise there would be no extant permission for those areas which extended the tipping areas beyond the areas that had been tipped on 5th December 1988. The burden of proof on this issue lay with the Claimant. 55. I have summarised in section 2 above the findings of the Inspector in the DL. These include her description of the site, the large area comprised in the site, the plan showing the areas of deposit, the limited extent of the tipping after 1983, the returns made to the Agency and the small amounts that may have been tipped despite the nil returns. In my view the inevitable conclusion from those findings is that the Claimant did not establish on the balance of probabilities that it had deposited waste on the whole of the site as at 5th December 1988. Indeed it was no part of the Claimant's case at the hearing before the Inspector that it had. In those circumstances there was no extant permission for the whole of the site. It follows that the Claimant cannot establish the necessary prejudice for the reasons challenge to succeed.”

The arguments in this court

[18]For Mr Barrett’s argument in this court, I can most conveniently quote his skeleton argument:
“The Appellant’s application was made in respect of the same area that had been granted a [licence] in 1983. The Inspector found as a fact that the evidence showed that the [licence] had been granted on the basis that the area to which the licence related enjoyed permission for the deposit of waste under the 1977 GDO. A permission granted under 1977 GDO Class XIX(3) is a permission for the ‘use’ of land, rather than for an operation… Accordingly, so long as that use was neither abandoned nor materially changed, further deposits would continue to be permitted notwithstanding the revocation of the 1977 GDO….”
[19]He accepts that under section 55(3) any deposit of waste which extended the superficial area of the deposit would involve a material change of use. However, in his submission,

the judge was wrong to hold that it would require a new permission:

“On the contrary, as was recognised in the grant of the 1983 [licence] the permission already conferred by Class XIX(3) of the 1977 GDO itself authorised deposits within the area of the existing ‘excavation’, whether or not all of the excavation was used for such deposits… The only circumstances in which a further, express grant of permission would have been required is if either (a) any deposits went beyond the area of the ‘excavation’ (because this would go beyond the permission granted by the 1977 GDO and would exceed the parameters of s 55(3)) or if (b) the height of any deposits exceeded the height of the land ‘adjoining the site’ (again, because this would go beyond the permission granted by the 1977 GDO and would exceed the parameters of s 55(3)).”
[20]Alternatively, he submits, the judge was wrong to find that the inadequacy of the inspector’s reasoning caused no prejudice. The inspector should have made findings as to the extent of tipping under the historic GDOs, and thus provide the basis for a licence for at least that part of the site which could be tipped without further permission.

Conclusion

[21]Although it seemed to me when granting permission to appeal that there were arguable issues of some novelty and general interest, I am satisfied having heard full argument that the answer is relatively straightforward, and that the judge was right substantially for the reasons he gave.[22]The so-called “historic GDOs argument”, whether as formulated in Mr Williamson’s opinion, or as restated by Mr Barrett, rests on a misconception. Tipping of waste involves a material change of use, but of a particular kind. In most contexts a material change of use involves a single act of development. No further permission is required to continue it unless and until there is a further material change. Whether a simple extension of the spatial area of an activity constitutes such a material change will raise questions of fact and degree, and may also depend on identifying the appropriate “planning unit”.[23]Section 55(3) applies a different regime to the tipping of waste. A further material change of use occurs every time the superficial area of the deposit is extended. It matters not that the extended tipping involves a continuation of the same general activity within the same site or planning unit, so that under ordinary principles there is no material change in the use of the overall site. The statute “declares” it to involve a material change of use, regardless of what the position might be under the general law. Extensions of the area of tipping before 1988 were permitted by the 1977 GDO. Once that GDO was revoked any further extensions, even within the 1983 licence area, involved new acts of development requiring permission in their own right. They were not permitted by the replacement GDOs, and they were not authorised by any specific permission. Accordingly they could not provide a basis for the PPC permit for any parts of the application site which had not been tipped before 1988.[24]As to the adequacy of the inspector’s reasons, I do not see how this can arise as a separate point. She could perhaps have dealt more fully with Mr Williamson’s argument, but I cannot see how any prejudice arises from her failure to do so. If as I have held, the argument was wrong, then the way the inspector dealt with it is irrelevant to the ultimate decision. As to the suggestion that the inspector might have made findings in relation to a part of the site, that does not appear to have been raised at the inquiry. The application was for a licence for the whole site. Mr Barrett accepts that he cannot show that the tipping extended to the whole site. If his clients had wanted to argue for some smaller area, it would have been incumbent on them to identify an area, and to relate the evidence and their submissions to it. So far as we could judge from the somewhat confusing plans we were shown, it would have been a very difficult task.[25]For these reasons, I would dismiss the appeal.

LADY JUSTICE HALLETT :

[26]I agree.

LORD JUSTICE MAURICE KAY :

[27]I also agree.

Cited in 1 later judgment