Staffordshire County Council v NGR Land Developments Ltd & Anor

Where two planning permissions concerning the same land are inconsistent and one has been implemented, the other remains effective unless the authorised development has become physically incapable of implementation in accordance with its own terms. Physical impossibility is not confined to whether the proposed structures or operations can physically occur. It includes an inability to carry out the development in the setting or manner required by that permission.

Mere incompatibility with the implemented permission is insufficient. Nor is an earlier permission extinguished because its implementation would undo restoration works or breach conditions attached to the later permission. Those conditions do not govern the earlier permission. A planning authority wishing to prevent reliance on an existing permission may use available statutory measures, including revocation or a planning obligation.

The Council granted a minerals planning permission in 1956 for the extraction of clay and associated minerals. A later permission granted in 1987 authorised opencast coal extraction over an overlapping area, followed by restoration to agriculture. The coal operations, restoration and aftercare were completed, but viable clay deposits remained beneath the restored land.

For the purposes of Schedule 13 to the Environment Act 1995, the Council excluded the overlapping area from its list of active mineral sites. It then obtained a declaration from His Honour Judge Boggis QC in the Chancery Division that the 1956 permission no longer authorised mineral extraction there. The landowners appealed.

The central issue was whether implementation of the 1987 permission, particularly the completed restoration and aftercare, had rendered development under the 1956 permission physically incapable of implementation.

1. Appeal allowed unanimously. Jonathan Parker LJ held that the 1956 permission remained capable of implementation over the overlapping area. Longmore and Peter Gibson LJJ agreed. The order below was set aside and the declaration sought in the appellants’ notice was made.

2. Where inconsistent planning permissions exist for the same land and one has been implemented, the question is whether the development authorised by the other permission can still be carried out in accordance with its own terms. This was the doctrine established in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527, endorsed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 and applied in Durham County Council v Secretary of State for the Environment (1989) 60 P&CR 507.

3. Physical impossibility is not limited to the literal impossibility of performing an operation. In Pilkington, construction remained physically possible on the vacant part of the site, but the development could not be carried out in the setting required by the earlier permission because the later development had destroyed the contemplated smallholding.

4. Mere inconsistency or incompatibility between permissions does not extinguish either permission. Nor does the fact that implementation of one permission would breach a condition attached to the other. Conditions imposed by a later permission do not govern development under an earlier permission. The court approved the reasoning in Prestige Homes (Southern) Ltd v Secretary of State for the Environment (1992) 3 PLR 125 and the explanation of physical impossibility in R v Arfon Borough Council, ex parte Walton Commercial Group Ltd [1997] JPL 237.

5. Extraction of the remaining clay was admittedly practical and viable and could occur in accordance with every condition of the 1956 permission. The need first to undo restoration and aftercare undertaken under the 1987 permission did not make clay extraction physically impossible in the relevant sense. The judge had therefore applied the wrong impossibility.

6. A planning authority concerned about incompatible permissions may use statutory measures, such as revocation or a planning obligation under section 106 of the Town and Country Planning Act 1990, to ensure that an earlier permission ceases to have effect.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The order below was set aside and the declaration sought in the appellants’ notice was made: [2002] EWCA Civ 856.
2. Chancery Division: His Honour Judge Boggis QC granted the Council declarations that the 1956 permission did not authorise mineral extraction in the overlapping area and that the consequential requirements of Schedule 13 to the Environment Act 1995 applied. No citation is stated.