“Without planning permission, the deposit of rubbish, rubble or other material on the land.”
“Permission be granted for the area covered by sections A-A and E-E, but not for the area covered by sections B-B, C-C and D-D.”
“The proposed tipping on the area covered by sections B-B, C-C and D-D will seriously affect the amenities of the locality.”
“I also agree, and only add that in relation to the 1955 permission nothing in the decision of this court is concerned to define further the area of the site which is covered by that permission. In order to discover that one must look back at the terms of the 1955 permission.”
“I would add that having heard what Schiemann LJ has said, I agree with it.”
“Deemed permission secured in respect of the 1955 permission (reference number 1722) but not for the 1961 permission (reference number 4240) after 3 months from the date of the application in accordance with the judgment of the Court of Appeal. The conditions attached to the permission are those contained in the application together with the condition attached to the 1955 permission.”
“6…The case for the Council, advanced by Mr Jarman QC, is that the so-called condition attached to the 1955 permission was never, in fact, a condition at all. It was merely a way of clarifying on a pro forma document the area over which the disposal of colliery rubbish was being permitted. If that is right, then, as I observed to Mr Jarman in the course of argument, it is regrettable that it is still referred to as a ‘condition’ in the register, but perhaps that was intended to direct the reader to the part of the document which appears under the heading of that word. This is, as both Mr Payne and Mr Jarman say, a very short point, but an important one for all that. The question is whether the Council has failed to enter upon the register that which has been the outcome of the litigation before Sullivan J and the Court of Appeal. I have come to the conclusion, notwithstanding the eloquence and force of Mr Payne’s submissions, that Mr Jarman is right. I say that principally because of what Schiemann LJ said in the Court of Appeal and what Dyson LJ then said in agreement with it. What emerged from the litigation, once some consideration was given to the area of the site which is covered by that permission (which consideration was not given in the judgment of Sullivan J, for good reason), was that the 1955 permission was approached on the basis that nothing in the decision of the Court of Appeal was concerned to define the area of the site covered by that condition because ‘in order to discover that one must look back at the terms of the 1955 permission’. In other words, Schiemann LJ, whose eminence in the field of planning law is renowned, clearly considered that, notwithstanding the fact that Mr Payne’s conditions for the site prevailed, the site itself still fell to be defined by reference to the words on the face of the 1955document. It is implicit in that that he was approaching those words not as conditions in the strict sense, but as being a definition of the area of the site covered by the permission. It seems that any conclusion from me to the contrary would fly in the face of what the Court of Appeal decided and said. 7. In those circumstances, in my judgment, the application of Mr Payne for further relief in the form of a mandatory order effectively removing the words ‘objected to’ from the face of the register, must fail. It will remain a matter for the Council as to the wording on the register, but I do rather take the view that it may be appropriate to express the area of the site which is covered by the permission otherwise than by reference to the word ‘condition’ attached to the 1955 permission...”
“6. This matter clearly turns, as was perceived by Maurice Kay J, and indeed by the Court of Appeal who previously considered the matter, upon the construction of the grant in 1955. Mr Payne’s point quite shortly is: if the document says condition then that must be a condition and not any limitation of the grant. I quite agree with him and indeed with Maurice Kay J that the document is unfortunately phrased. It should not have set out the limited permission that was granted under the heading of 5 ‘Conditions’. No doubt that was because this was a standard form document that the local authority used for that purpose. “7. That said, however, it seems to me entirely clear that what was being granted in 1955 was what the local authority said was being granted: that is to say, permission for the area covered by sections AA and EE, but not for the area covered by sections BB, CC and DD. In other words, the permission was limited to part of the sought site. No permission at all was granted in respect of sections BB, CC and DD and therefore it was appropriate for conditions to be imposed in respect of those areas, because there can be no conditions on an area which is not the subject of planning permission… 10. This is a short case of construction. I agree with the view taken of it by Maurice Kay J. I am also fairly confident that that was the view of the matter taken by Schiemann LJ when this matter was before the Court of Appeal, but the matter was not argued out there and I make it clear that I do not decide this case on the basis that I am bound by what Schiemann LJ said. I decide it on the basis, as did Maurice Kay J, of my own construction of the underlying document.”
“Without planning permission, the removal of stone, aggregate, minerals or other material from the land, the deposit of rubbish, rubble or other material on the land, and the sorting and recycling of stone, aggregate, minerals, rubbish, rubble or other material on the land.”
“13... There can be no doubt from these judgements that the 1955 permission does not extend to the whole of the area south of Nelson Road that was the subject of the application. It was limited to the area of the section A-A. Consequently, the 1955 permission gave no approval for development of any kind other than on the land covered by the permission and any works of tipping, mineral processing or recycling that have taken place outside that permitted area do not have the benefit of planning permission.”
“14. I turn next to the definition of the area covered by the 1955 permission, which the Council says is the area of ‘white land’ excluded from the notice. The south west boundary of the white land is defined by the boundary of the 1955 application site. The western extremity, where it comes to a point over the former reservoir, and its northern boundary are also defined by the 1955 application. To define the rest of the area covered by the 1955 permission the Council has looked at the 1955 survey drawing on which the cross sections are shown. Cross section A-A shows an unbroken black line and it was agreed at the inquiry that this shows the existing ground levels at that time. The cross-section contains a dotted line rising from the Nant Cae’r Moel stream at the south western end to a height of 800 feet AOD; it was agreed that this indicates the extent of the proposed tipping. No new tipping is shown along the rest of the cross section, where the site rises above 800 feet. The Council has therefore used the 800 feet ground contour in 1955 to define the northern extremity and eastern boundary of the white land, since tipping was shown by cross section A-A not to exceed this height. This would appear to coincide with a dotted line drawn on the 1955 survey drawing. This dotted line continues to the south east and the Council has used it to define the south east boundary of the white land. This boundary cuts across a steep slope where the land would have been capable of being tipped to the height of 800 feet shown on the cross section A-A. Nevertheless, I accept the Council’s argument that if it had been intended to fill this area it would be reasonable to assume that cross sections B-B, C-C and D-D would have been extended across this south west part of the 1955 application site, rather than being limited to a strip along the opposite south east boundary. 15. For the appellants it was argued that the boundary of the white land, put forward by the Council as the area covered by the 1955 permission, is contrived and totally unconvincing. But I am satisfied that the boundary of the area excluded from the enforcement notice is reasonable and based on the best interpretation of the area of land covered by the 1955 permission that can be drawn from the available information. The appellants put forward no alternative boundary, but merely continued to assert, contrary to the clear judgements of the courts, that the 1955 permission covered the whole of the 1955 application site. The appellants have in my view failed to put forward any new evidence that has not already been considered by 7 the courts to show that the 1955 permission includes the land covered by the enforcement notice.”
“187B – Injunctions retraining breaches of planning control. (1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part. (2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”
“15. In my judgment the proper interpretation of this planning permission has been determined by Maurice Kay J. That decision was the subject of an unsuccessful application for permission to appeal. Accordingly the parties are bound by the decision and I have no option but to apply it in these proceedings. 8 16. Maurice Kay J decided that the permission granted for the disposal of colliery rubbish and the widening of that permission which was the effect of the conditions attached to the permission by virtues of Mr Payne’s application in December 2000 applied only to that part of the land which was the area covered by sections A-A and E-E upon the plan which accompanied the application for permission in 1955. Upon the plan attached to the enforcement notice and upon the plan attached to the interim injunction in this case the sections A-A and E-E are shown as an unshaded area as if in white and the remainder of the land which was the subject of the 1955 application is shaded in red. The effect of the decision of Maurice Kay J is that the Defendants are permitted to dispose of colliery rubbish on to the ‘white land’ and additionally, dispose of brick, stone, concrete and builders rubble on to that area and, further, they are permitted process these materials by machinery or otherwise ‘within the confines of the site’ (i.e. upon the ‘white land’) and export the recycled materials from the site. 17. In his closing legal submissions on behalf of all Defendants the First Defendant does not dissent from this analysis.”
“23...While the First Defendant disputed the assertion made by Miss Walsh that operations on site had significantly intensified between the two dates he did not suggest that Miss Walsh was inaccurate in describing what she had seen. In any event, I am completely satisfied that Miss Walsh accurately described what she saw on the occasions of her visit. Further as the photographs at JMW 19 to JMW34 amply demonstrate the activities undertaken and observed were not upon the ‘white land’ but rather upon the remainder of the site under the control of the Defendants. 24. Ostensibly, therefore, as of a date shortly before the institution of these proceedings the Defendants were undertaking activities in breach of planning control...”
“29. In my judgment the reality is that the Defendants have sought to carry out on the whole of the site under their control that which they claimed was permitted under the 1955 permission… 35. I have reached the clear conclusion that until restrained by the injunction granted by me the Defendants were in breach of planning control in the manner described in the enforcement notices served upon them… 37. In the instant case the Defendants have demonstrated remarkable tenacity in their refusal, in effect, to accept the decision of Maurice Kay J. Notwithstanding his decision, the Defendants began their activities in early 2004 and they continued them 9 in the face of an enforcement notice and a stop notice. It is true that the appeal against the enforcement notice suspended its effect; nonetheless the continued attempt by the Defendants to argue that the decision of Maurice Kay J was wrong or misunderstood was, in my judgment, simply a means of seeking to continue to carry on activities on the whole of the land which the First and Second Defendant knew full well were not permitted. In my judgment nothing short of an injunction will stop the illegal activity.”
“It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he has considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, ‘entirely 10 foreclosed’ at the injunction stage. Questions of the family’s health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken...”