Factual and Procedural Background
This opinion concerns an application for judicial review by the Plaintiff of a decision made by the Defendant on 8th September 2004, notified on 7th October 2004, which declined to consider the Plaintiff's application dated 28th June 1999 for new conditions under section 96 and paragraph 9 of Schedule 13 to the Environment Act 1995 ("the 1995 Act"). The application related to a planning permission granted on 28th April 1971 ("the 1971 permission") concerning a quarry known as Hart Quarry.
The Plaintiff, a quarrying company, has operated the quarry under a lease since the original 1971 permission was granted by Durham County Council. The 1971 permission included twenty conditions, notably condition 10 requiring a restoration scheme to be agreed by the local planning authority before extraction commenced. No such restoration scheme was ever submitted or approved.
Subsequently, planning permissions were granted in 1989 and 1996 for extensions and variations related to the quarry, which included restoration provisions. The quarry was classified as an active Phase II site under the 1995 Act. The Plaintiff applied to the Defendant for a determination of new conditions under Schedule 13 in respect of the 1971 permission. The Defendant refused to consider the application on the basis that the 1971 permission had lapsed due to non-compliance with condition 10.
The core procedural issue is whether the 1971 planning permission has lapsed because condition 10 was not complied with, specifically whether the failure to agree a restoration scheme before extraction commenced means the permission was not validly implemented.
Legal Issues Presented
- Whether the absence of an agreed restoration scheme means condition 10 of the 1971 permission was not complied with, based on the proper interpretation of that condition.
- If condition 10 was not complied with, what is the legal effect of that non-compliance on the validity and implementation of the 1971 planning permission?
Arguments of the Parties
Plaintiff's Arguments
- Condition 10 should be interpreted as permitting restoration either to the levels shown on the 1971 plan without the need for a restoration scheme, or to other levels subject to an agreed restoration scheme before extraction commenced.
- The failure to agree a restoration scheme before extraction commenced does not mean condition 10 was breached if restoration was to the levels shown on the original plan.
- It would be inappropriate to judge the 1971 permission by modern environmental standards and the restoration provisions in later permissions effectively supersede the original scheme.
- Even if condition 10 was a condition precedent, the Plaintiff argues that after 34 years of quarrying, enforcement action to prevent extraction would be irrational or an abuse of power, especially as restoration conditions are governed by later permissions.
Defendant's Arguments
- Condition 10 requires the approval of a restoration scheme before any extraction commences, making it a condition precedent to the lawful commencement of development.
- Failure to comply with condition 10 means the 1971 permission lapsed as the development did not lawfully commence within the prescribed time.
- All extraction from the original quarry since 1976 has been unlawful.
- Reliance was placed on the "Whitley principle," which holds that development begun in breach of a condition precedent is unlawful and does not constitute commencement of the planning permission.
- The Defendant contended that the planning permission had not been implemented and therefore the Defendant was justified in refusing to consider the Plaintiff’s ROMP application.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Oldham Metropolitan Borough Council and Pugmanor Properties Ltd, ex parte Foster [2000] JPL 711 |
Confirmed that if a planning permission has lapsed, the authority has no power to consider new conditions under Schedule 13 of the 1995 Act. |
Used to establish that if the 1971 permission had lapsed, the Defendant's refusal was lawful. |
| R v Caerphilly County Borough Council ex parte Payne [2003] EWCA Civ 71 |
Clarified the meaning of an extant "relevant planning permission" under Schedule 13 of the 1995 Act. |
Supported the position that the 1971 permission must be extant for the Defendant to consider the application. |
| R v Ashford Borough Council ex parte Shepway District Council [1998] 2 PLCR 12 |
Extrinsic evidence is not admissible for interpreting planning conditions. |
Applied to exclude extrinsic evidence when interpreting condition 10. |
| FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72 |
Established the principle that operations in breach of a condition precedent are not development authorised by the planning permission ("Whitley principle"). |
Central to Defendant's argument that failure to comply with condition 10 meant the 1971 permission was not lawfully implemented. |
| Etheridge v Secretary of State for the Environment (1983) 48 P&CR 35 |
Development begun without approval of reserved matters is not development authorised by the permission. |
Supported the Whitley principle and was cited to illustrate its application. |
| Oakimber Ltd v Elmbridge Borough Council (1991) 62 P&CR 594 |
Confirmed development carried out in breach of conditions is unauthorised and does not commence the permission. |
Reinforced the Whitley principle and its limits. |
| R v Elmbridge Borough Council, ex parte Health Care Corporation Ltd [1991] 3 PLR 63 |
Supported the principle that development in breach of condition is not authorised development. |
Used to affirm the Whitley principle. |
| Staffordshire Moorlands District Council v Cartwright (unreported, 1991) |
Confirmed that failure to comply with conditions means development is not authorised. |
Applied the Whitley principle to conclude non-compliance meant no lawful implementation. |
| Daniel Platt Ltd v Secretary of State for the Environment [1997] 1 PLR 73 |
Applied the Whitley principle in minerals context; mining operations without approved details were unauthorised. |
Defendant relied on this case to argue the 1971 permission had not been implemented. |
| Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 |
Judicial creation of the Whitley principle to fill legislative gaps and give effect to statutory purpose. |
Referenced to explain the origins and purpose of the Whitley principle. |
| Leisure Great Britain Plc v Isle of Wight Council [1999] |
Confirmed that operations carried out in breach of conditions do not commence development. |
Discussed to illustrate limits of the Whitley principle in non-minerals cases. |
| Hammerton v London Underground Ltd [2002] EWHC 2307 (Admin) |
Qualified the Whitley principle, allowing for exceptions where enforcement action would be irrational or abusive. |
Adopted by the court to temper the strict application of the Whitley principle. |
| Henry Boot Homes Ltd v Bassettlaw District Council [2002] EWCA Civ 983 |
Confirmed that breach of condition prevents lawful commencement of development. |
Used to illustrate the consequences of failing to comply with pre-commencement conditions. |
| R (Prokopp) v London Underground Ltd [2003] EWCA Civ 961 |
Endorsed exceptions to the Whitley principle where enforcement is irrational or an abuse of power. |
Supported the court's approach to limit the strictness of the Whitley principle. |
Court's Reasoning and Analysis
The court first considered the proper interpretation of condition 10 of the 1971 permission, which requires progressive back-filling and restoration of worked out areas either to levels shown on the submitted plan or to levels agreed by the local planning authority in accordance with a restoration scheme to be agreed before extraction commenced. The Plaintiff's interpretation—that restoration to the levels on the plan did not require prior agreement of a restoration scheme—was preferred. The court reasoned that the condition should be read as a single sentence governed by an "or," not imposing two separate obligations. This interpretation also gave effect to other related conditions (3 and 11 to 15), which would be rendered redundant if the Defendant's interpretation were accepted.
The court rejected the Defendant's argument that condition 10 was a condition precedent in the sense that failure to comply rendered the entire permission void. It distinguished the present case from cases where conditions expressly prohibit any development before approval of certain matters. Condition 10, concerned with restoration after extraction, did not prohibit extraction before agreement of a restoration scheme.
The court also addressed the "Whitley principle," under which development begun in breach of a condition precedent is not authorised and the permission lapses if the condition is not complied with within the statutory period. Applying this principle rigidly would lead to absurd consequences, such as invalidating decades of lawful quarrying due to a breach of a restoration condition. The court endorsed a more nuanced approach, consistent with public law principles and recent case law (notably Hammerton and Prokopp), which allows for exceptions where enforcement action would be irrational or an abuse of power.
Given that extraction had continued for over 34 years and that restoration provisions in later permissions superseded the 1971 scheme, the court concluded it would be irrational and an abuse of power for the Defendant to commence enforcement proceedings now to prevent extraction based on non-compliance with condition 10.
Accordingly, the court held that condition 10 was complied with under the preferred interpretation and, even if not, the 1971 permission was effectively implemented and not lapsed.
Holding and Implications
The court's final ruling was as follows:
- The Defendant's decision dated 8th September 2004, refusing to consider the Plaintiff's ROMP application on the basis that the 1971 permission had lapsed, was quashed.
- A declaration was granted that the 1971 planning permission has not lapsed and remains valid.
- The Defendant was ordered to pay the Plaintiff's costs, subject to detailed assessment if not agreed, with a payment on account of £10,000 to be made within 28 days.
- The Defendant was granted permission to appeal, with the time to file and serve a notice of appeal extended to 28 days after receipt of the transcript.
The direct effect of this decision is that the Plaintiff may continue quarrying operations under the 1971 permission, and the Defendant must consider the ROMP application. The court did not establish new precedent but emphasized a practical and common-sense approach to the application of the Whitley principle, limiting its rigid application where it would produce absurd results. The judgment clarifies the interpretation of restoration conditions and the consequences of non-compliance in long-standing mineral permissions, providing guidance for local planning authorities and developers.