Payne v Caerphilly County Borough Council

The Court of Appeal considered an application under paragraph 9 of Schedule 13 to the Environment Act 1995 to determine conditions for two old mineral planning permissions. The court held that an application under paragraph 9 will not be treated as a nullity merely because it proposes conditions that extend the scope of the original permission unless the departure is so extreme as to remove the application from the statutory scheme. The judge's declaration that, in relation to the 1955 permission, the authority was to be treated as having determined the conditions specified in the applicant's submission was upheld. The court further held that paragraph 9 does not apply to planning permissions that are no longer extant, and that the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (as amended) did not displace paragraph 9(9) on the facts because tipping of colliery rubbish did not fall within the Schedule 2 descriptions relied upon.

Background and parties: The claimant (Mr Payne) applied under paragraph 9 of Schedule 13 to the Environment Act 1995 for determination of conditions relating to two historical planning permissions (a 1955 permission for disposal of colliery rubbish and a 1961 permission for removal of a tip). The mineral planning authority (Caerphilly County Borough Council) responded by treating the 1961 permission as no longer extant and returning the application in respect of it, while addressing the 1955 permission as a dormant site entry on the first list.

Nature of the claim and relief sought: Mr Payne sought judicial review and a declaration that, because the council had not given notice within the statutory period, paragraph 9(9) of Schedule 13 operated to treat the authority as having determined that the conditions to which the 1955 and the 1961 permissions were subject were those specified in his application.

Issues framed:

• Whether the application under paragraph 9 was valid in respect of the 1955 permission, or whether it was a nullity because some proposed conditions exceeded the scope of the original permission.
• Whether the Environmental Impact Assessment (EIA) Regulations 1999 (as amended) disapplied paragraph 9(9) so as to prevent the statutory deeming provision applying where screening had not been undertaken.
• Whether paragraph 9 applies to planning permissions that were no longer extant at the time of the application (the 1961 permission).

Court's reasoning and conclusions: The court agreed with the trial judge that the application was sufficiently identified and, on its merits, not so radically inconsistent with the 1955 permission as to be a nullity. The court emphasised that only in extreme cases should an application be treated as outside paragraph 9. On the EIA Regulations point, the court rejected the council's contention because tipping of colliery rubbish did not fall within the Schedule 2 descriptions relied upon (not being properly described as underground mining or as an installation for disposal of waste). Finally, the court affirmed that paragraph 9 is not intended to enable determination of conditions for permissions which had ceased to be extant; accordingly the applicant had no remedy under paragraph 9 in respect of the 1961 permission. The appeal in relation to the 1955 permission was dismissed; permission to appeal by Mr Payne in relation to the 1961 permission was refused.

The appeal is dismissed. The court held that the claimant's paragraph 9 application was valid in respect of the 1955 permission and, absent a screening opinion under the EIA Regulations, the deeming provision in paragraph 9(9) applied; the EIA Regulations did not displace that deeming because tipping colliery rubbish did not fall within the Schedule 2 descriptions relied upon. The court also held that paragraph 9 does not extend to planning permissions which were no longer extant, so the application failed as to the 1961 permission; permission to appeal on that point was refused.

Appeal from the Queen's Bench Division (Administrative Court) (Sullivan J). At first instance Sullivan J granted a declaration in respect of the 1955 permission and dismissed the application in respect of the 1961 permission; the Council appealed the 1955 decision and the claimant sought permission to appeal the 1961 decision (which was refused).