Staffordshire County Council v Riley & Ors

Whether a mineral planning permission has been implemented must be assessed objectively by reference to the statutory concept of “winning and working” minerals. An act authorised and necessary for mining does not automatically begin that operation. Topsoil removal may be a distinct and ambivalent operation, particularly because topsoil has a special public-interest value. A breach of a storage condition does not remove the legal effect of an authorised act, and subjective motives are irrelevant. On the limited facts, removal of 12 inches of topsoil did not establish that the marl had become available or accessible for removal, or that winning and working had begun.

A 1952 planning permission authorised the extension of a marl-hole and required phased working and separate storage of removed topsoil. Topsoil was removed from part of the permitted area, but no marl was extracted, the topsoil was not stored separately, and waste was later tipped on the land. On a preliminary issue, His Honour Judge Boggis QC held that the removal was preparatory and had not implemented the permission. The developers appealed, arguing that topsoil removal began the winning of the marl. The central issue was whether development had begun within the statutory time limit applicable to the mineral permission.

Appeal dismissed unanimously. Lord Justice Pill delivered the judgment, with Lord Justices Tuckey and Kay agreeing.

1. The relevant time-limit arose under section 65 of the Town and Country Planning Act 1968. Under section 12(2) of the 1947 Act, development included mining operations. Section 81 and the Town and Country Planning (Minerals) Regulations 1971 created a special mineral regime. Regulation 7 focused on the earliest date on which a mining operation covered by the permission began, while regulation 1(3) defined mining operations as the winning and working of minerals.
2. The court accepted that implementation could occur when winning had begun even if working or extraction had not itself started. The question nevertheless remained whether the particular act formed part of winning and working. The general approach was objective. The court had to ask whether the work was done in accordance with the permission and whether it was material rather than de minimis. Subjective motives and intentions were not an additional requirement.
3. Removal of the topsoil was authorised by the permission and was necessary before the marl could be extracted. The phasing requirement and the failure to store the topsoil separately did not deprive the removal of legal effect. The storage failure was a breach enforceable as such. The court distinguished Oldham MBC and Another v The Secretary of State ex parte Foster [2000] JPL 711, applying Whitley and Sons v Secretary of State for Wales (1992) 64 P&CR 296, because those cases concerned a condition which had to be satisfied before mining could commence.
4. The general planning authorities concerning commencement of development could not be applied mechanically. The mineral expression “winning and working” was not defined in equivalent detail. The court treated the provisional approach in English Clays v Plymouth Corporation [1974] 1 WLR 742 as requiring evidence that the topsoil removal had made the marl available or accessible for removal. The physical alteration of the land had little relevance to that question. Topsoil’s special public-interest value, illustrated by the Agricultural Land (Removal of Surface Soil Act), also supported treating its removal as a potentially separate operation.
5. There was no evidence of the depth of the marl or of the effect of removing 12 inches of topsoil on access to it. The court therefore declined to establish as a proposition of law that such removal began, or formed part of, winning and working. The preliminary issue was correctly decided for the Council. The developers were ordered to pay 85% of the specified costs, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the preliminary-issue decision.
• Queen’s Bench Division, His Honour Judge Boggis QC, decided on 10 February 2000 that removal of the topsoil was preparatory and had not implemented the planning permission.