Berry & Marshall (Bolton Wood) Ltd v Secretary of State for Environment, Food & Rural Affairs & Ors

Factual and Procedural Background

The Claimant challenged a decision by an Inspector appointed by the Secretary of State for the Environment, Food & Rural Affairs, who dismissed an appeal against the refusal by the Environment Agency to grant a Pollution Prevention and Control (PPC) permit for land at a quarry site in The City. The local planning authority is the Council. The refusal was based on the absence of any necessary planning permission for the use of the site under the PPC Regulations, which require that such permission be in force for the permit to be granted.

The Claimant contended that planning permission existed either under the 1995 General Development Order (GDO) or under historic GDOs from 1950 through 1977. The Inspector dealt adequately with the 1995 GDO argument but was alleged by the Claimant to have failed to properly address the historic GDO argument.

Judicial review permission was granted on the basis that the Claimant had an arguable case that the Inspector did not adequately consider whether pre-1988 permitted development rights under the historic GDOs could still be relied upon after the 1988 GDO revoked those orders, particularly if the tipping operations were a continuation of prior lawful use.

The Secretary of State and Interested Parties resisted the application, contending that the Inspector had dealt with the argument adequately or that the Claimant would have failed regardless, thus no relief should be granted. The Claimant maintained that the issue required complex factual and legal findings and should be remitted for redetermination.

The Inspector’s decision described the quarry site and its long planning history, including mineral working permissions dating back to 1956, none of which expressly permitted waste deposit. The Claimant had a waste disposal licence since 1983, initially acknowledged by the licensing authority as permitted development under the 1977 GDO.

The Inspector summarized evidence about waste disposal at the site, noting uncertainty about the dates and extent of tipping prior to 1948 and limited tipping after 1983, with some intention to resume tipping when viable.

The Claimant applied in 2006 for a PPC permit for inert waste disposal over an area corresponding to the 1983 waste licence. The Environment Agency refused the permit in 2007 due to lack of planning permission. The Claimant appealed, relying on planning permission under the 1995 GPDO or alternatively historic GDOs. The Inspector rejected the 1995 GPDO claim and the Claimant only challenged the rejection of the historic GDO argument.

The parties made rival legal submissions regarding whether permitted development rights under the 1977 GDO survived its revocation by the 1988 GDO, with the Claimant arguing for continuity of use and the Agency contending that the 1988 revocation was effective without savings and that any new tipping beyond previously tipped areas or height required express permission.

The Inspector concluded there was no extant planning permission or permitted development rights for waste infilling post-1988, and thus no permission enabling the grant of the PPC permit.

Legal Issues Presented

1. Whether the Inspector adequately considered the Claimant's argument that permitted development rights under historic General Development Orders (GDOs), specifically the 1977 GDO, survived their revocation by the 1988 GDO in circumstances where tipping operations constituted a continuous use.
2. Whether the revocation of the 1977 GDO by the 1988 GDO operated retrospectively or extinguished pre-existing permitted development rights.
3. Whether the Inspector’s reasons for dismissing the Claimant’s appeal were adequate to enable the Claimant to understand why the appeal was dismissed, particularly concerning the historic GDO argument.
4. Whether the Claimant suffered substantial prejudice from any failure by the Inspector to provide adequate reasons, thereby justifying quashing the decision and remitting the matter for reconsideration.

Arguments of the Parties

Claimant's Arguments

• Planning permission existed either under Class 8, D of the 1995 GDO or under rights granted by historic GDOs, specifically Class XIX(3) of the 1977 GDO and its predecessors.
• The revocation of the 1977 GDO rights by the 1988 GDO did not extinguish pre-existing permitted development rights where tipping operations were continuous and ongoing.
• The Inspector failed to adequately address or give reasons on the historic GDO argument, leaving the Claimant unable to understand the basis for dismissal.
• The Claimant contended that each deposit of waste was not necessarily a material change of use requiring separate permission if it did not extend the superficial area or height beyond the surrounding land, in line with statutory provisos.
• The matter involved complex mixed questions of fact and law and should be remitted rather than the Court substituting its view.

Defendant's Arguments (Secretary of State, Environment Agency, and Council)

• The Inspector had dealt with the historic GDO argument adequately in paragraphs 7 and 8 of the decision letter.
• Any failure to deal with the argument fully would not have changed the outcome as the Claimant’s case would have failed on the facts.
• The revocation provisions in the 1988 GDO had no saving clause, so permitted development rights under the 1977 GDO ceased to apply for new tipping after 1988.
• Tipping after 1988 extending the superficial area or height of deposits constituted a material change of use requiring express planning permission.
• The Inspector’s reasons were adequate and the Claimant was not substantially prejudiced.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
West Oxfordshire District Council Appeal [1987] JPL 663	Completion of a single operation commenced before the removal of permitted development rights under an Article 4 direction.	The Court rejected the Claimant’s analogy to this case, noting tipping is not a single operation but a series of material changes of use.
Cole v Somerset Council [1957] 1 QB 23	Article 4 directions cannot withdraw permission already given and acted upon for a permanent change of use.	Supported the principle that once a permanent change of use under permitted development rights occurs, subsequent withdrawal does not affect existing rights.
South Bucks DC v SSE [1989] 1 PLR 69	Effect of Article 4 directions on temporary or intermittent uses and the nature of material changes of use.	Distinguished between permanent and temporary uses, emphasizing that repeated temporary uses involve successive material changes of use.
Ratcliffe v Department of the Environment [1975] JPL 728	Further tipping on a quarry already used for tipping is not a material change unless limitations on area or height are exceeded.	Adopted as logical interpretation of section 55(3) of the Town and Country Planning Act 1990.
Duckworth v Haslingden UDC [1964] (referenced)	Extension of superficial area of tipping constitutes a material change of use.	Supported the view that tipping not extending the superficial area may not be a material change.
Roberts v Vale U D C [1977] 1 EGLR 137	Recognized the peculiarity of tipping as a change of use rather than operational development.	Referenced in legal analysis of the nature of tipping operations.
Simplex v SSE (1988) 57 P & C R 306	On quashing decisions for inadequate reasons, the decision must have inevitably been the same to refuse relief.	Referenced regarding the standard for quashing decisions on reasons challenges.
South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953	Standards for adequacy of reasons in planning decisions.	Applied to determine whether the Inspector’s reasons were intelligible and adequate, and whether the Claimant was substantially prejudiced.

Court's Reasoning and Analysis

The Court began by considering the statutory framework governing planning permission and permitted development rights, particularly focusing on the PPC Regulations and the Town and Country Planning Act 1990. It noted that a permit under the PPC Regulations cannot be granted unless planning permission is in force for the relevant use of the land.

The Court analyzed the nature of the Claimant’s case that historic permitted development rights under the 1977 GDO survived revocation by the 1988 GDO if tipping operations were continuous. It found that tipping constitutes a material change of use whenever the superficial area or height of the deposit is extended beyond that of adjoining land, and that tipping is not a single operational development but a series of changes of use.

The Court rejected the Claimant’s reliance on the West Oxfordshire decision analogizing it to the current case, emphasizing the inexactness of the analogy given the differing nature of the developments involved.

It noted the absence of saving provisions in the 1988 and 1995 GDOs’ revocation clauses, unlike earlier orders, meaning that permitted development rights under the earlier GDOs ceased to apply for tipping after 1988.

The Court examined the Inspector’s decision letter and found that while the Inspector addressed the 1995 GDO argument adequately, the treatment of the historic GDO argument was inadequate. The reasons given did not sufficiently explain why the Claimant’s submissions on the historic GDOs were rejected or how the revocation affected the Claimant’s rights.

However, the Court found that the Claimant bore the burden of proving that waste had been deposited over the entire site before 5 December 1988 to establish extant permitted development rights for the whole area. The Inspector’s findings showed that the Claimant did not establish this on the balance of probabilities, and this failure meant the Claimant was not substantially prejudiced by any inadequacy in reasons.

Consequently, the Court concluded that the Inspector reached the correct outcome and that the Claimant’s challenge to the decision should be dismissed.

Holding and Implications

The Court's final decision is to DISMISS the Claimant’s application for judicial review.

The direct effect is that the Inspector’s decision dismissing the appeal against refusal of the PPC permit stands. The Claimant cannot rely on historic permitted development rights under the revoked GDOs for the whole site, and no planning permission exists to support the permit application.

No new legal precedent was established. The decision reinforces the principle that permitted development rights under revoked GDOs do not survive without express saving provisions, and that tipping operations constitute material changes of use requiring express permission if they extend the area or height of deposits beyond prior lawful use.