Berry & Marshall (Bolton Wood) Ltd v Secretary of State for Environment, Food & Rural Affairs & Ors

Planning decision reasons must be intelligible and adequate. They must explain the conclusions on the principal controversial issues and disclose how material questions of law and fact were resolved. A reasons challenge succeeds only where the claimant has suffered genuine substantial prejudice.

Historic permitted-development rights for waste tipping may preserve deposits within the permitted limits. Revocation removes permission for later deposits extending the superficial area or exceeding the level of adjoining land, unless another permission applies. The claimant must establish entitlement over the whole area for which permission is sought.

The claimant sought judicial review of an Inspector’s dismissal of its appeal against refusal of a pollution prevention and control permit for waste disposal at Bolton Woods Quarry. The Environment Agency was required to refuse a permit unless planning permission for the relevant use was in force.

The claimant accepted the Inspector’s treatment of its argument under the 1995 General Permitted Development Order, but alleged inadequate reasons concerning rights under historic General Development Orders, particularly the 1977 Order. The central issues were the effect of revocation, the legal character of successive waste deposits, the adequacy of the Inspector’s reasons, and whether any inadequacy caused substantial prejudice.

1. Application dismissed. The Inspector reached the correct conclusion that no planning permission existed which enabled the Environment Agency to issue the permit. No relief was granted.
2. Under Town and Country Planning Act 1990, s 55(1), the deposit of waste is development through a material change in use, but s 55(3) treats further tipping as involving a material change only where the superficial area is extended or the height exceeds the level of adjoining land. The court adopted the approach in Ratcliffe v Department of the Environment [1975] JPL 728.
3. The historic General Development Orders granted permission for deposits within those statutory limits. The 1988 Order revoked the earlier general grant without a saving clause. Thereafter, a fresh deposit extending the superficial area or exceeding the adjoining land’s level required express planning permission. Whether the tipping was one continuous operation did not alter that result.
4. The analogy with the single operational development in West Oxfordshire District Council [1987] JPL 663 was inexact and was rejected. The court relied on the distinction drawn in Cole v Somerset Council [1957] 1 QB 23 and South Bucks DC v SSE [1989] 1 PLR 69 between a once-and-for-all permanent change of use and successive or intermittent changes of use.
5. Applying South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953, the Inspector’s reasons were inadequate because they did not explain the effect of the historic Orders or that deposits within the statutory limits would not involve a material change of use. Nevertheless, substantial prejudice was absent. The evidence did not establish, on the balance of probabilities, that waste had been deposited across the whole site before 5 December 1988. Thus no extant permission covered the whole area for which the permit was sought.

First-instance judicial review proceedings. Foskett J granted permission to apply for judicial review on the papers on 27 January 2010.