Payne v Caerphilly County Borough Council

An application under paragraph 9 of Schedule 13 to the Environment Act 1995 is not ordinarily a nullity merely because its proposed conditions extend or adversely affect the permitted use. Only an extreme departure from the permission can take the document outside the statutory concept of an application. The mineral planning authority should normally determine the application on its merits and reject objectionable conditions where appropriate. The environmental-impact regulations disapply the paragraph 9(9) deemed determination only where the relevant development falls within the specified Schedule 1 or Schedule 2 categories and the required screening exclusion is absent. Simple tipping of colliery waste was neither underground mining nor an installation for waste disposal. Paragraph 9 does not apply to permissions already lapsed, and later duration provisions do not revive them.

Mr Payne applied under paragraph 9 of Schedule 13 to the Environment Act 1995 for new conditions governing two mineral planning permissions. One permission, granted in 1955, concerned the disposal of colliery rubbish. The other, granted in 1961, concerned removal of a tip and had expired in 1971.

The Council rejected the application in relation to the 1961 permission and returned it in relation to the 1955 permission. Sullivan J granted judicial review concerning the 1955 permission and declared that the Council was deemed to have determined the proposed conditions. He rejected the challenge concerning the 1961 permission. The Council appealed on the 1955 permission, while Mr Payne sought permission to appeal concerning the 1961 permission. The central issues were the validity of the application, the effect of environmental-impact regulations, and whether paragraph 9 applied to an expired permission.

The Court of Appeal unanimously dismissed the Council’s appeal. Dyson LJ gave the leading judgment; Mummery LJ agreed, and Schiemann LJ agreed subject to an additional clarification.

1. Identification of the site. Paragraph 9(2)(a) did not require a separate plan precisely delineating each mineral site. The application identified the 1955 permission by its date and code number, and the plan attached to that permission identified the relevant land. Read as a whole, the application also identified the sites relating to both permissions, despite the wider red-line area.
2. Validity of the application. The proposed conditions concerning materials and processing did not fundamentally change the nature of the 1955 permission. An application should be treated as a nullity for departure from the permission only in an extreme case. Authorities should ordinarily deal with objectionable conditions on their merits, using the wide discretion conferred by paragraph 9(6), rather than ignoring the application. The court accepted the statutory objectives summarised in R v North Linconshire County Council ex parte Horticultural and Garden Sales (Humberside) Ltd [1997] 76 P&CR 363, but held that those objectives could not give paragraph 9 a meaning contrary to its words.
3. Environmental-impact regulations. The disposal of colliery rubbish by tipping was not development providing underground mining. Nor was it an installation for the disposal of waste, since no disposal installation was provided or proposed. Regulation 26A(22)(a) therefore did not disapply paragraph 9(9), and the Council’s failure to determine the valid application within the statutory period resulted in the proposed conditions being deemed determined.
4. Expired permission. Paragraph 9(1) did not apply to the 1961 permission because it was no longer extant. The statutory purpose was to modernise conditions attached to subsisting permissions, not to determine conditions for a permission that had already lapsed. The duration provisions in Part 1 of Schedule 5 to the Town and Country Planning Act 1990 did not revive it. Mr Payne’s application for permission to appeal on this issue was refused.

Schiemann LJ added that the judgment did not define the precise extent of the land covered by the 1955 permission; that remained a matter for the terms of that permission. Costs applications were to be dealt with in writing.

1. Court of Appeal (Civil Division) dismissed the Council’s appeal concerning the 1955 permission and refused Mr Payne permission to appeal concerning the 1961 permission: [2003] EWCA Civ 71.
2. Administrative Court, Queen’s Bench Division granted a declaration that the Council was deemed to have determined the 1955 permission subject to the proposed conditions, but dismissed the application for judicial review concerning the 1961 permission. The Council was given permission to appeal on the 1955 issue; Mr Payne’s later application to appeal on the 1961 issue was refused.