Earthline Ltd v Secretary of State for Transport, Local Government and the Regions & Anor

An unappealed determination by a mineral planning authority is not immune from later challenge merely because it has become final under the statutory registration procedure. In the absence of clear statutory language equivalent to the finality protection in section 284 of the Town and Country Planning Act 1990, the court may quash a planning condition imposed without power.

Once unlawfulness is established, the discretion under section 288 concerns the remedy. An ultra vires condition should ordinarily be quashed unless a proper discretionary reason justifies withholding relief. Registration of the condition and the passage of time may be relevant to remedy if reliance or prejudice is proved, but do not themselves validate an unlawful condition.

A 1946 permission for gravel extraction was treated under the old-mining-permission regime. In 1996 the mineral planning authority imposed a condition requiring extraction to cease in 2000, although the statutory end date was 2042. The then owner did not appeal that determination.

After acquiring the site, Earthline sought under section 73 of the Town and Country Planning Act 1990 to extend the dates in the condition. A planning inspector dismissed its appeal against the authority's non-determination. On an application under section 288, Sullivan J accepted Earthline's contention that the condition was invalid, but rejected a second ground. The council appealed and Earthline cross-appealed.

The central issue was whether the finality and registration provisions for old mining permissions prevented a later challenge to a condition which the authority had no power to impose.

1. The council's appeal was dismissed unanimously. Lord Justice Brooke gave the principal judgment, with which Lord Justice Keene and Mr Justice Bodey agreed. The cross-appeal required no determination.

2. The statutory scheme fixed the end date of the permission at 2042. The council therefore lacked power to impose a condition terminating gravel extraction in 2000. The condition's invalidity was apparent and was a material matter for the inspector.

3. Section 284 of the Town and Country Planning Act 1990, as extended by paragraph 9(3) of Schedule 2 to the Planning and Compensation Act 1991, protects a decision of the Secretary of State on a Schedule 2 appeal if it is not challenged by the prescribed route. It does not confer comparable immunity on an unappealed determination of a mineral planning authority. Nor did the final determination and registration provisions contain clear language excluding the court's jurisdiction to strike down an ultra vires condition.

4. The reasoning in [1998] AC 92 did not assist the council. Whether a collateral challenge is precluded depends on the particular statutory scheme. Here, unlike the enforcement-notice scheme considered there, the legislation did not remove the court's power to consider unlawfulness.

5. Once jurisdiction was established, section 288 left a discretion as to remedy only. An unlawful condition should in principle be quashed. There was no evidence of public reliance on the registered condition and no proper reason to withhold relief. The inspector's decision was therefore quashed and the appeal remitted to the Secretary of State, who could amend Condition 1 to reflect the 2042 end date.

1. Court of Appeal (Civil Division): The council's appeal was dismissed. Earthline's cross-appeal required no order.

2. Administrative Court: Sullivan J allowed Earthline's first ground under section 288 of the Town and Country Planning Act 1990, concerning the invalid condition, and rejected its second ground.

3. Planning inspector: On 24 July 2001, the inspector dismissed Earthline's appeal against the council's non-determination of its section 73 application.