Hart Aggregates Ltd., R (on the application of) v Hartlepool Borough Council

A planning condition must be construed from its actual wording and in the context of the permission as a whole. An alternative requiring restoration to approved plan levels or, alternatively, to a level agreed under a scheme agreed before extraction, does not require prior approval of a scheme where the approved levels are used. The judge-made rule that development begun in breach of condition may fail to implement a permission must be applied cautiously. It does not turn every breach into wholesale unlawful development. It applies fully where the condition expressly prohibits development until a specified requirement is met. A breach confined to one aspect of development ordinarily leaves other authorised operations effective. In any event, enforcement that would be irrational or an abuse of power cannot prevent implementation.

The claimant sought judicial review of Hartlepool Borough Council’s refusal to consider its application under paragraph 9 of Schedule 13 to the Environment Act 1995 for new conditions governing a 1971 mineral planning permission. The Council considered that the permission had lapsed because no restoration scheme had been agreed before extraction under condition 10. The claimant relied on the permission’s restoration levels, the long history of quarrying, later permissions granted in 1989 and 1996, and the statutory review regime for old mineral permissions. The central questions were whether condition 10 required prior approval of a restoration scheme and, if so, whether non-compliance meant that the permission had never been implemented.

Claim allowed. The Council’s decision was quashed and a declaration was granted that the 1971 planning permission had not lapsed and remained valid.

1. Condition 10 was construed as requiring a restoration scheme to be agreed before extraction only where restoration was to a level other than the levels shown on the submitted plan. The absence of internal punctuation meant that the word “or” governed the alternative as a whole. Read with the permission in its entirety, conditions 3 and 11 to 15 already made detailed provision for restoration. The court also applied the principle in R v Ashford Borough Council ex parte Shepway District Council [1998] 2 PLCR 12 that extrinsic evidence was inadmissible. The conditions had to be interpreted as imposed in 1971, rather than by modern environmental standards.

2. There was therefore no breach of condition 10 and the permission had not lapsed. The judge nevertheless considered the alternative issue. The FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 PLR 72 principle was judge-made and had to be applied cautiously. The Town and Country Planning Act 1990 distinguished development without permission from development in breach of condition. A prohibition on commencing all development should not be implied from a condition directed to a particular aspect of restoration.

3. The full force of the Whitley principle applied only where the condition expressly prohibited development before a specified approval or requirement had been satisfied. If a condition merely regulated one aspect of development, breach ordinarily made that aspect unlawful and enforceable, but did not make all other authorised operations unlawful. The cases concerning outline or in-principle permissions, including Daniel Platt Ltd v Secretary of State for the Environment [1997] 1 PLR 73, were materially distinguishable.

4. Alternatively, applying the approach in Hammerton v London Underground Ltd [2002] EWHC 2307 (Admin), endorsed by the Court of Appeal in R (Prokopp) v London Underground Ltd [2003] EWCA Civ 961, development could nevertheless implement a permission where enforcement to stop it would be irrational or an abuse of power. After 34 years of extraction, and with restoration governed by later permissions and capable of being updated through the ROMP process, enforcement for the purpose of controlling extraction would have been unlawful.

The defendant was ordered to pay the claimant’s costs, subject to detailed assessment, with £10,000 payable on account within 28 days of receipt of the transcript. Permission to appeal was granted, with 28 days from receipt of the transcript for filing and serving the notice.