Berry & Marshall (Bolton Wood) Ltd v Secretary of State for Environment, Food & Rural Affairs & Ors [2010] EWHC 2367 (Admin)

Case No CO/14584/20092010] EWHC 2367 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT in LEEDS
The Court House
Oxford Row
Venue Leeds LS1 3BGDate 24 th September 2010
Before
His Honour Judge Behrenssitting as a Judge of the High Court in Leeds
Between
BERRY & MARSHALL (BOLTON WOOD) LIMITEDClaimantSECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSDefendant(1) THE ENVIRONMENT AGENCYInterested Parties(2) BRADFORD METROPOLITAN BOROUGH COUNCILInterested Party
John Barrett (instructed by Walker Morris of Kings Court, 12 King Street, Leeds LS1 2HL) for ClaimantJames Maurici (instructed by Defra Law and Corporate Services of Ergon House, Horseferry Road, London SW1P 2AL) for Defendant.There was no appearance at the hearing by the Interested Parties.Hearing Hearing date: 9 th September 2010
JudgmentJudge Behrens:
[1]Introduction In this application the Claimant challenges a decision of Susan Holland (“the Inspector”) an Inspector appointed by the Secretary of State for the Environment, Food & Rural Affairs (“the Secretary of State”) contained in a decision letter (“DL”) dated 23 October 2009. The Inspector dismissed an appeal under regulation 27(1)(a) of the Pollution Prevention and Control (England & Wales) Regulations 2000 (“the PPC Regulations”) against the refusal by the Environment Agency (“the Agency”) to grant a PPC permit to the Claimant in respect of land at Bolton Woods Quarry, Bolton Hall Road, Bolton Woods, Bradford, BD2 1BQ (“the site”). Bradford Metropolitan Borough Council (“the Council”)is the local planning authority for the area in which Bolton Woods Quarry is located.[2]Under regulation 10(4)(b) of the PPC Regulations the Agency were bound to refuse a permit unless any necessary planning permission was in force in relation to the use of the site. 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[3]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]On 27 January 2010 Foskett J granted permission to apply for judicial review on the papers. He observed that the Claimant had an arguable case: that ‘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’[5]The Secretary of State and the Interested Parties resist the application on two main grounds. First they contend that the Inspector dealt with the argument in paragraphs 7 and 8 of the DL. In so far as she did not do so adequately they contend that the Claimant was bound to fail. Accordingly the Claimant is not prejudiced by the failure and the Court should not grant any relief.[6]Perhaps unsurprisingly the Claimant does not accept that the alternative argument was bound to fail. It contends that the outcome of the argument requires complicated findings of mixed fact and law and it is not the Court’s function to “rewrite” the decision. The matter should be remitted for redetermination.[7]Before dealing with the case in detail it is right that I should acknowledge the very considerable assistance I have received from all those involved in the preparation of this case. The skeleton arguments and the oral submissions were of the highest quality and have greatly shortened the time that would otherwise have been necessary to prepare this judgment.[2]The facts[8]In paragraph 3 of her decision the Inspector describes Bolton Woods Quarry as: "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.”[9]There is a plan at page 309 of the bundle which shows four areas where stockpiling of material has taken place.[10]Bolton Woods Quarry has a long and complex planning history. There is a full summary in section 2.0 of the Council’s hearing statement. In summary there are permissions for mineral workings dating from 1956. The most recent decision relating to the conditions is that of the Secretary of State dated 23rd September 2002. The permission expires in 2042. It is common ground that none of the planning permissions expressly cover the deposit of controlled waste.[11]The Claimant acquired Bolton Woods in 1956. A waste disposal licence was first granted for the site in about 1983. Mr Barrett on behalf of the Claimant drew my attention to a letter 6th September 1993 from the then licencing authority West Yorkshire Metropolitan County Council (WYMCC). In this letter WYMCC acknowledged that they had taken Counsel’s opinion and that the activities were a permitted development within Class XIX (3) of the 1977 GDO. The original licence was superseded by a later waste management licence in 1997.[12]There was evidence of the extent of the disposal of waste at Bolton Woods Quarry before the Inspector. Her findings appear at various places in the DL and may be summarised: 1. She accepted evidence to the effect that boiler ash, demolition materials and waste wool was deposited in earlier quarry holes. There were no records of the dates of tipping, the precise locations or the quantities tipped. It was “far from certain” that the tipping took place in every quarry hole that now forms the appeal site or even most of them. She was not satisfied on the evidence that this waste had been tipped before 1st July 1948 rather than between 1948 and 1956. 2. Since 1983 little or no written record exists of waste having been deposited on the site. She summarised the affidavit evidence: “After the issue of the licence tipping was reduced …to save the tipping void for the future to maximise the value of the site and because inert waste was more scarce.” 3. The terms of the licence were modified to reduce the amount of waste allowed to be deposited annually. Apart from one return in 1995/1996 only nil returns were submitted to the Agency. There was affidavit evidence that in spite of the ‘nil returns’ small amounts of waste were tipped though no details were available. She was satisfied on the evidence that it was the Claimant’s ultimate intention to resume tipping once it became both convenient and financially viable to do so.[13]On 9 May 2006 the Claimant applied for a permit under the PPC Regulations to dispose of inert waste at Bolton Woods Quarry. The area for which the permit was sought corresponds to that part of the area in respect of which the 1983 Waste Management Licence was granted. It is shown on the plan on page 309 with widely spaced black dots.[14]The Claimant asserted in the application that the appropriate planning permission was in place but produced no documentation in support of this. Correspondence then ensued between the Agency and the Claimant on the planning situation. The Agency contacted the Council, as local planning authority, and it expressed the view that Bolton Woods Quarry did not have planning permission nor did it enjoy any permitted development rights to dispose of waste.[15]The Claimant’s application for a permit was refused by the Agency on 20 March 2007 on the basis that Bolton Woods Quarry did not benefit from planning permission for the disposal of waste.[16]The Claimant appealed arguing that planning permission for the deposit of waste at Bolton Woods Quarry existed by virtue of:(i) the 1995 GPDO, Part 8, D; or in the alternative(ii) the historic GDOs, as defined above. A hearing was held on 25 August 2009. The Claimant, the Agency and the Council appeared at the hearing. The Inspector conducted a site visit on 26 August 2009.[17]The Inspector in her DL rejected the Claimant’s case under the 1995 GDO and the Claimant does not challenge this part of the decision. As already noted the challenge relates to the rejection of the argument in relation to the historic GDOs 2.1. The rival arguments before the Inspector.[18]The rival arguments before the Inspector are helpfully summarised in Mr Maurici’s skeleton argument. The Claimant’s argument was contained in paragraphs 47 and 48 of the January 2009 Advice of Andrew Williamson of Walker Morris which was put before the Inspector and adopted as part of the Claimant’s submissions. In summary it was argued that there was an analogy between this situation and Article 4 of the 1988 GDO and that if the Claimant could demonstrate that its tipping operations were to be viewed as a continuous operation it could rely on any permitted development (“PD”) rights it had acquired under the 1977 GDO even though the 1977 GDO had been revoked by the 1988 GDO. In his advice Mr Williamson put the matter thus:
“47 It is true that the 1988 GDO revoked the 1977 GDO and made no savings in respect of rights already acquired. This begs the question, therefore, whether any PD rights acquired under the 1977 GDO prior to the revocation can still be relied upon afterwards. I have not been able to find any case law specifically on the point at this moment in time, but there is case law which discusses what happens when an Article 4 direction is made under the 1977 GPDO, thereby removing permitted development rights previously granted. 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. 48 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. I deal with the issue of continuity in the context of earlier GDOs at paragraphs 61 to 68 below, but the same considerations would apply here to the 1977 GDO.”
[19]The Agency did not accept these submissions. It did not accept that PD rights under the 1977 GDO remained extant after 5th December 2008: 31. ... even where a void has lawfully been used for tipping any extension to the existing area of the deposit will need planning permission. There is no evidence (and it is not as the Agency understands it suggested) that the entire base of the void has been tipped. So any lateral extension of the tipped area would be a material change of use and require planning permission ...34. The effect of Class XIX(3) of the GDO was that permission was granted for the ongoing deposit of waste in mineral voids notwithstanding that the area of ground covered by waste may be extended provided the height of the deposit did not exceed the surrounding ground level.35. The 1977 GDO was revoked by the Town and Country Planning General Development Order 1988 (No 1813) (the` 1988 GDO') with effect from 5th December 1988. The replacement provisions were more prescriptive in that the replacement permitted development rights 'Waste tipping at a Mine' were limited to waste derived from the mineral working activities (see schedule 2 part 21). Any new development after 5th December 1988 would have had to be under the 1988 GDO and not the predecessor 1977 GDO.36. Importantly there were no saving provisions in the 1988 GDO to allow sites that had previously been relying on Class XIX(3) of the 1977 GDO to continue to do so in respect of future deposits that amounted to development.37. Therefore, from 5th December 1988 unless an operator could come within the provisions of the 1988 GDO the continuing disposal of waste would need a specific planning permission if it either extended the surface area on which waste had been deposited or extended the height of the deposit above the surrounding ground level.38. The 1988 GDO has been replaced by the 1995 GDO. This re-enacts the provisions of the 1988 GDO in respect of waste tipping at a mine (schedule 2 part 21).39. Class XIX (3) of the 1977 GDO referred to excavations "already lawfully used for that purpose". Given the definition of development since the 1947 Act this must have meant areas that already lawfully had waste on them – either before 1st July 1948 or subsequently under either an express permission or permitted development rights (the 1977 GDO revoked its 1973 predecessor). It then gave permission for these areas to be extended horizontally and vertically within a void.40. By comparison Class XX contains a similar provision in relation to the National Coal Board although there "already lawfully used" is replaced with a specific reference to the use having taken place on 1st July 1948 and was thus more limiting.41. So whether or not the 1977 GDO rights allowed tipping and justified the issuing of the waste management Licence in 1983, they no longer apply. Between 29th March 1977 (when the order came into force) and the 5th December 1988 (when it was revoked) it permitted tipping in accordance with class XIX (3). After that date it no longer authorised tipping. Instead any tipping which extended the area of ground already covered by waste would either need to comply with the replacement provisions in Part 21 of schedule 2 to the 1988 and 1995 GDOs or would need a specific grant of planning permission.42. The revocation of the 1977 GDO was not in any way retrospective. Development carried out in accordance with it prior to its revocation was and remains lawful. Any deposits of waste that occurred whilst it was current were and remain lawful. These were, not a single operation but a change of use each time a deposit is made that either extends the area of the deposit or its height above the surrounding ground level. This is plain from the definition of development explained earlier. As the 1977 GDO did not authorise the filling of the void or any overall scheme as a single operation, the logic of the West Oxfordshire District Council appeal [1987] JPL 663, that a single operation commenced before the revocation of any permitted development rights could be completed notwithstanding the revocation, does not apply.43. Even without the matter being put beyond doubt by the definition of development, with the low key nature of any tipping that had occurred and the lengthy gaps between tipping, it is difficult to see that tipping and the proposed tipping as part of a single operation.[20]The Claimant sought to answer these submissions in paragraphs 10 – 13 of its Supplementary Statement:
“10 Turning to the question of rights under Part XIX, 3. Whilst it is not expressly stated by the Agency in their statement of case, the assertions they make at paragraphs 42 and 43 to the effect that "it is difficult to see that tipping and the proposed tipping as part of a single operation" and that the deposits "were not a single operation but a change of use each time a deposit is made that either extends the area of the deposit or its height above the surrounding ground level" clearly imply that the Agency is treating every deposit of waste as a change of use requiring separate authorisation in the same way that every shovelful of mineral extraction is a new engineering operation. Whilst visibly acknowledging the fact that tipping of waste is considered to be a change of use rather than an engineering or other operation (a peculiarity noted in the Roberts case - see Appendix 12 of the Appellant's Advice), the Agency, however, in its application fundamentally misunderstands the distinction between the two. As a change of use, every deposit is clearly not development requiring separate authorisation; only a material change of use would require the same. 11 In this regard the Agency places reliance on the definition of development in the 1947 Town and County Planning Act, as made clear at paragraph 42 in the reference back to paragraphs 26 and 27. However, in reaching the view that "it is plain from the definition of development earlier" that any deposits of waste were not a single operation, the Agency is misconstruing, and therefore misapplying, the proviso within Section 12(3) of the 1947 Act, namely that a deposit on a site already used for the purpose will not require planning permission "if the height of the deposit does not exceed the level of the land adjoining such site and the superficial area of the deposit is not thereby extended". The proviso, therefore, sets out the parameters of when a deposit would or would not be a further material change of use requiring a new authorisation. 12 Having rightly identified the existence of this proviso, the only way the Agency can logically still reach its conclusion is by interpreting the reference in the 1947 Act proviso to "the level of the land adjoining such site" as meaning the height of the deposit immediately prior to further waste being deposited on it and the reference to extending "the superficial area of the deposit" as meaning any lateral extension of individual piles of waste within a site. On such an interpretation then every time a new deposit is added to an existing deposit there would be a material change of use, which is what the Agency appears to be suggesting. 13 This is a fundamental misunderstanding, however, of the limitations imposed by Section l2(3)(b) of the 1947 Act (limitations which are replicated in the current 1990 Act albeit in a different formulation). Firstly in terms of the issue of height, the wording of the proviso is clearly a reference to the wider site; it does not refer to the land adjoining such deposit but to the land adjoining the site on which such a deposit is made. Secondly, the superficial area of the pre-existing deposit must not be extended (NB activities leading to the deposit of material and areas used therefor would also be included). The scheme the Appellant has been working to relates to the GDO area and so all deposits made within the GDO area, provided they do not exceed the height of the excavation, will not amount to a separate change of use requiring planning permission.”
[21]The Agency’s arguments were supported by the Council. Although the Council’s hearing statement made a number of other points I do not find it necessary to rehearse them in detail. 2.2 The inspector’s decision on the alternative argument[22]As already noted the Claimant’s challenge to the decision is on the basis that she did not deal with the alternative argument and/or gave inadequate reasons for rejecting the relevant parts of the DL dealing with this aspect are: 7. The evidence is that the grant of the Waste Management Licence in 1983 was based on the provisions of the 1977 Town and Country Planning General Development Order 1977, Class XIX (3), according to which the deposit of refuse or 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 such excavation represents permitted development. Previous General Development Orders had contained a similar provision. The term refuse or waste materials is potentially wide-ranging and would have included household and commercial waste as well as industrial and quarry waste. 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). 8. 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. 20. I am satisfied, on the evidence, that the Appellant's ultimate intention was always to resume tipping once it became both convenient and financially favourable to do so. However, if no rights of permitted development existed for tipping after the 1988 GDO came into force, tipping from that date onwards carries no weight in favour of the-proposal that an Environmental Permit should be granted. 21. On several occasions in the past, the existence of planning permission (or its equivalent) for waste tipping at the appeal site has been queried but no investigation was ever apparently pursued: probably because such queries arose during the exercise of some other procedure to which they were at the time peripheral and/or not of material weight. There is no doubt that there were rights of permitted development for tipping prior to the coming into force of the 1988 GDO. On coming into existence in 1995/6, the Environment Agency 'inherited' hundreds of Waste Management Licences at a stroke, and did not investigate the existence of planning permission or its equivalent in respect of each one. However, that the Local Planning Authority or the Environment Agency, did not pursue such investigations in the past is not now sufficient to validate the current claim to permitted development rights as the basis for an Environmental Permit. Conclusion 22. On balance I consider that there is no extant planning permission for infilling the existing quarry void with waste and no permitted development rights for importing waste, whether or not only inert materials, into the site as a whole. My overall conclusion is therefore that no form of planning permission exists which would enable a permit to be issued by the Environment Agency.”[3]The Relevant Planning Law[23]Before dealing with the question of whether the Inspector gave adequate reasons it is convenient to consider the relevant planning law and to the various submissions and authorities to which I was referred. 3.1. The Statutory Framework[24]The Landfill (England and Wales) Regulations 2002 require sites which benefit from a waste management licence and wish to take waste after 16 July 2002 to apply for a pollution prevention and control (‘PPC’) permit under the 2000 Regulations.

(b) of the latter provides:

‘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.’
[25]S.55(1) of the Town and Country Planning Act 1990 (‘the 1990 Act’) defines ‘development’ as:
‘The carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land’
[26]S.55(3) provides:
‘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’
[27]S.58(1) provides: ‘Planning permission may be granted –a. by development order [or a local development order];b. by the local planning authority (or… the Secretary of State)[28]Development Orders are now governed by s. 59 of the TCPA 1990. Such orders include the Town and Country Planning (General Permitted Development) Order 1995 (“the 1995 GPDO”). Earlier orders which have been successively superseded were: 1. the Town and Country Planning General Development Order 1948 superseded by: 2. the Town and Country Planning General Development Order 1959, and superseded by: 3. the Town and Country Planning General Development Order 1963, and superseded by: 4. the Town and Country Planning General Development Order 1973, and was superseded by: 5. the Town and Country Planning General Development Order 1977, and was superseded by: 6. the Town and Country Planning General Development Order 1988.[29]Class XIX in the 1959 and 1963 GDOs 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 provided that the height of such deposit does not exceed the level of the land adjoining any such excavation”.[30]The 1973 and 1977 GDOs were drafted in materially the same terms (the words “provided that” being replaced by “so long as”).[31]The 1988 GDO granted planning permission for: “the deposit by an industrial undertaker of waste material or refuse resulting from an industrial process on any land comprised in a site which was used for such a deposit, otherwise than in contravention of previous planning control, on the 1st July 1948, whether or not the superficial area or the height of the deposit is therefore extended”.[32]The 1995 GPDO in Schedule 2, Part 8D grants planning permission for:
“the deposit of waste material resulting from an industrial process on any land comprised in a site which was used for that purpose on 1st July 1948 whether or not the superficial area or the height of the deposit is extended as a result. D.1 Development not permitted Development is not permitted by Class D if— (a) the waste material is or includes material resulting from the winning and working of minerals, or (b) the use on 1st July 1948 was for the deposit of material resulting from the winning and working of minerals.”
D.1 Development not permitted

Development is not permitted by Class D if—

[33]My attention was drawn, by way of example, to the revocation provisions in paragraph 20 of the 1973 GDO. 20. -(1) The statutory instruments specified in Schedule 7 hereto are hereby revoked but without prejudice to any permission granted …thereunder[34]All of the GDOs up and until 1988 contained the above saving clause. However the saving clause was omitted in the revocation provisions of the 1988 and 1995. Thus paragraph 31 of the 1988 GDO provides: 31. -(1) The statutory instruments specified in Schedule 7 hereto are hereby revoked. 3.2 Submissions and discussion Section 55 of the Act[35]Both Counsel drew my attention to the 2 separate limbs of development in section 55(1) of the Act –(i) the carrying out of …operations , and(ii) a material change in the use of …any land. It is clear from section 55(3) of the Act that the deposit of waste comes within the second limb and then only if either of limitations set out in the subsection is satisfied.[36]In Ratcliffe v Department of the Environment [1975] JPL 728 Bridge J (as he then was) commented on the predecessor of section 55(3): 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.[37]I was also referred to a reference in [1973] JPL 196 to the Divisional Court case of Duckworth v Haslingden UDC decided in 1964. The case concerned an appeal against an enforcement notice relating to tipping in a disused quarry of some 7.8 acres. The Minister had upheld the enforcement notice on the basis that there was in any event tipping in places which had extended the superficial area of the deposits. Thus the first limitation in what is now section 55(1)(3) was exceeded. According to the report he also said that tipping which had not extended the superficial area would not necessarily have involved a material change of use. Mr Maurici sought to draw on this view to submit that the Minister’s view was equivocal and that any form of tipping might give rise to a material change of use.[38]I do not share Mr Maurici’s concern. To my mind Bridge J’s view is a logical interpretation of what is now section 55(3) and I propose to adopt it. As Mr Barrett pointed out this is an area of the law which was recognised in Roberts v Vale U D C [1977] 1 EGLR137 as being something of a peculiarity. The GDOs[39]It is common ground that the developments permitted under the 1988 and 1995 GDOs were more prescriptive than those permitted under the earlier GDOs. The most important additional condition that had to be satisfied was that the site had to have been lawfully used for the deposit of waste on 1st July 1948. Under the previous GDOs planning permission was granted for a deposit of waste that extended the superficial area provided the height restriction was not exceeded.[40]The more difficult question is the effect of the revocation provisions in the various orders. As already noted the revocation paragraphs in all of the GDOs prior to 1988 were expressly made “without prejudice to any planning permission granted thereunder” whereas the 1988 and the 1995 GDOs contained no such saving clause.[41]There is no direct authority on the effect of revocation in a case such as this where the development comprises a material change of use. I was, however, referred to 3 cases where the local authorities had given directions under Article 4 of the relevant GDO. Article 4 of the GDO allows local authorities via directions to withdraw permission granted under the GDO.[42]In the West Oxfordshire District Council appeal decision [1987] JPL 663 the development concerned consists of a single operation – the digging of a trench for the construction of a fishing lake, which had been commenced but not completed at the time of an Article 4 direction removing permitted development rights, the Inspector determined that the Article 4 direction did not prevent completion of the trench.[43]As already noted in their submissions to the Inspector the Claimant submitted that there was an analogy with the West Oxfordshire case and that provided it could be shown that the tipping operations were a single operation the revocation of the 1977 GDO would not prevent the Claimant from relying on those rights today. I cannot accept that submission. As Mr Maurici points out the analogy with Article 4 is inexact. The West Oxfordshire District Council appeal was concerned with a single operational development. The deposit of waste is not ordinarily, and is not in this case, operational development. As already noted it is a material change of use whenever(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.[44]In the other two cases where the Court of Appeal considered the effect of an Article 4 direction where there has been a material change of use. In Cole v Somerset Council [1957] 1 QB 23 there was a change of use from a golf club to a caravan site. The change of use was at the time a lawful development permitted under the relevant GDO. It was held that there was no power under Article 4 to withdraw a permission that had already been given and acted upon.[45]South Bucks DC v SSE[1989] 1 PLR 69 was concerned the effect of an Article 4 direction on a temporary planning permission. Strandmill Ltd held 11 Sunday markets in a field between December 1985 and March 1986 in reliance on the permission granted for temporary uses. In February 1986 the Council made a direction under Article 4 of the GDO with the effect that planning permission was no longer available for the holding of temporary markets. Strandmill held a market on three further Sundays in defiance of the direction. The council then served an enforcement and a stop notice on Strandmill. Strandmill appealed. An inspector allowed the appeal on the grounds that once the first market had been held in December 1985, Strandmill became entitled to hold markets on 14 days in the calendar year and the council were not entitled to serve a direction under Article 4. As Strandmill had only held seven of the remaining 13 at the time that the council served its direction, they were still entitled to hold the next three markets and so there had been no breach of planning control. The Court of Appeal held that where there was a once and for all change of use of land to a permanent and continuous new use under permitted development rights then an Article 4 direction did not affect the continued use of the land for that new use The Court of Appeal considered the position was different with temporary or intermittent uses which were repeated at intervals. Such development involves a series of developments, namely changes of use and an Article 4 direction once made would prevent any further changes of use. At page 76H of the judgment Nicholls LJ analyses the position in this way: I prefer to approach the matter as follows. 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. If, for instance, a market is held on agricultural land on one Saturday in each month, there is a change of use from agricultural use to market use on each of those Saturdays. The development which is carried out on the first of those Saturdays consists only of the change of use which takes place on that day. On the following day, the land reverts to its normal, agricultural use. The resumption of that use does not require a fresh planning permission: see sections 23(8) and 24(6). When the relevant Saturday in the next month arrives, there is again a change of the use being made of the land. No doubt, the intention of the landowner throughout is to hold a market monthly on these Saturdays. But the physical change of use, which occurs each time the market is held, is not deprived of its character of a "material change of use" of land by the landowner's having an intention to repeat the temporary use at intervals. In the event, when each market is held, article 3 permits what would otherwise be a breach of planning law.[46]In the light of these authorities it seems to me that the effect of the revocation in 1988 of the earlier GDOs is accurately set out in paragraphs 46(c) and (d) of Mr Maurici’s skeleton argument: c. 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; d. 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;[47]This formulation is much the same as that contained in paragraph 42 of the Agency’s submissions which I have set out above. In my view the question of whether the tipping operations were a single operation does not affect the position. In the absence of abandonment (which is not relied on by the Secretary of State) the Claimant was and is entitled to deposit waste in accordance with the limitations set out in section 55(3) of the Act. If it wishes either to extend the superficial area over that already tipped or to raise the height above that of the surrounding land it requires an express grant of planning permission.[4]The adequacy of the reasons given by the Inspector[48]There was very little, if any, dispute as to the relevant law. In his skeleton argument Mr Maurici cited a passage from the speech of Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953 who said:
"35 It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit. 36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such an adverse inference will not readily be drawn. The reasons indeed refer only to the main issues in the dispute not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision"
[49]He also made the point that the DL is addressed to parties who are well aware of issues and the arguments deployed at the inquiry. I have set out above the paragraphs in the DL which touch on the Claimant’s alternative argument. Mr Barrett criticises the DL in paragraphs 4.5 – 4.10 of his skeleton argument. In summary he makes the following criticisms: 1. The Inspector identified the Claimant’s argument as being under the 1995 GDO without mentioning the alternative argument [paragraph 9 of the DL] 2. The Inspector failed at any point in her decision to consider the effect of the historic GDOs on the Claimant’s existing rights. 3. Paragraph 8 of the decision letter contains an error of law in so far as it purports to suggest that any permission under the historic GDOs had ceased to have any effect in law. 4. She failed properly to consider or adequately explain her view on the effect of revocation of the earlier GDOs[50]As already noted Foskett J in granting permission was of the provisional opinion that it was arguable that the Inspector did not deal adequately with these matters. Furthermore the Council in their detailed submissions accepted that it was arguable that the reasons given were inadequate.[51]Mr Maurici, however, manfully sought to uphold the reasons as adequate. In paragraphs 43 to 45 he sought to justify them on the basis that the Inspector must be taken to have accepted the Agency’s submissions and on the basis that paragraph 8 was correct as a matter of law.[52]I cannot accept Mr Maurici’s submission. In my view the reasons given by the Inspector were inadequate. The issue of the historic GDOs was fairly before the Inspector. Detailed submissions had been made by all parties. In my view the treatment by the Inspector in paragraphs 6 to 8 of the decision letter does not deal adequately with those submissions. It is not possible for the Claimant to know why he lost. Indeed the rival analysis of paragraph 8 of the DL by Mr Barrett and Mr Maurici in paragraphs 4.8 and 45 of their respective submissions goes some way to show that the reasons were not sufficiently expressed. Nowhere in the DL does the Inspector make the point that as a result of permissions granted under the historic GDOs there would be no material change of use in respect of deposits which did not extend the area of the existing deposits or exceed the height of the surrounding land.[5]Discretion[53]As this is a reasons challenge the Claimant will only succeed if he can show he has genuinely been substantially prejudiced by the failure to provide adequate reasons. In his skeleton argument Mr Barrett makes two points on this. First he submits that the court should quash the decision unless it can be satisfied that the decision would inevitably have been the same. It is not sufficient that the decision might have been the same or even that it was very likely to have been the same. In support of this submission he has referred to a number of cases such as Simplex v SSE (1988) 57 P & C R 306. Second he makes the point that the decision making body in this case is the Secretary of State and not the Court. The Court should not substitute its view of the facts for that of the Inspector. If there are areas of facts that need to be determined the decision should be quashed and the matter should be remitted for a fresh hearing. The cases cited by Mr Barrett were not cases dealing with a reasons challenge. In those circumstances it seems to me that the test is that proposed by Lord Brown in South Bucks v Porter rather than what may appear to be the somewhat more stringent test he proposes.[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. 56 In the result the Inspector came to the correct conclusion. It is accordingly not appropriate to grant any relief to the Claimant. I would dismiss this application for judicial review.