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

Under the Town and Country Planning Act 1990, s 55(3) creates a special regime for waste tipping. Extending the superficial area of a deposit is a new material change of use, even where it continues the same activity within the same planning unit. A permitted-development right under an earlier General Development Order does not authorise new extensions after the order has been revoked without a saving provision. A waste permit cannot be granted unless planning permission is in force where required. An applicant seeking a permit for the whole site must establish that the requirement is satisfied throughout the site. Failure to address an legally unsound argument causes no prejudice.

Berry & Marshall (Bolton Wood) Ltd appealed from the decision of HH Judge Behrens in the Administrative Court, reported at [2010] EWHC 2367 (Admin). The judge had dismissed a statutory challenge to a planning inspector’s refusal of a PPC permit for depositing inert waste at Bolton Woods Quarry.

The permit could not be granted unless planning permission existed or was unnecessary. The appellant relied on historic General Development Orders, particularly the 1977 GDO, and argued that permitted-development rights acquired before revocation continued to authorise tipping. The central issues were whether later deposits extending the tipping area required fresh permission and whether the inspector’s failure to address the historic-GDO argument caused prejudice.

The appeal was dismissed. Lord Justice Carnwath gave the judgment of the court, and Lord Justice Maurice Kay and Lady Justice Hallett agreed.

1. Regulation 10(4)(b) of the Landfill (England and Wales) Regulations 2002 prevented the grant of the permit unless planning permission was in force for the proposed waste activity where permission was required. The applicant therefore had to establish an extant permission covering the proposed site, or show that permission was unnecessary.

2. The so-called historic-GDO argument rested on a misconception. Although ordinary planning principles may treat continuation within one planning unit as not involving a further material change of use, s 55(3) of the Town and Country Planning Act 1990 declares that each extension of the superficial area of a waste deposit is a material change of use. The same statutory regime applies where the height of the deposit exceeds the level of adjoining land. The court accepted the approach drawn from Ratcliffe v Department of the Environment [1975] JPL 728.

3. Before revocation, extensions falling within the 1977 GDO were permitted. After that order was revoked, later extensions were new acts of development requiring planning permission in their own right. They were not authorised merely because they occurred within the area covered by the 1983 waste licence. The authorities concerning the effect of Article 4 directions, including Cole v Somerset Council [1957] 1 QB 23 and South Bucks DC v SSE [1989] 1 PLR 69, supported the distinction between the legality of past deposits and the authorisation of future deposits.

4. The inspector might have addressed the argument more fully, but no prejudice arose because the argument was legally wrong. The application concerned the whole licensed area. If the appellant wished to rely on a smaller area, it had to identify that area and relate the evidence and submissions to it at the inquiry. It had not done so.

There was therefore no basis for remittal or for disturbing the refusal of the permit.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 636, the court unanimously dismissed the appeal.
• High Court, Administrative Court: HH Judge Behrens dismissed the statutory challenge to the inspector’s refusal of the PPC permit in [2010] EWHC 2367 (Admin).