R (on the application of Payne) v Caerphilly County Borough Council

Mineral planning permission — Application for determination of conditions — Validity of application — Appellant council rejecting respondent’s application on ground of invalidity — Whether application site sufficiently identified — Whether conditions so far removed from what permission contemplated as to invalidate application — Appeal dismissedThe respondent owned two sites, each with the benefit of a mineral planning permission for the disposal of colliery rubbish. The permission for one site dated from 1961, and for the other from 1955. In 2000, the respondent applied, under para 9(2) of Schedule 13 to the Environment Act 1995, for determination of the conditions attached to the planning permissions. He proposed that the conditions should permit the disposal of stone, brick and builder’s rubble in addition to colliery rubbish. The council rejected the application. The respondent succeeded in a judicial review challenge to that decision on the basis that, although the 1961 permission had expired in 1971: (i) the 1955 planning permission was extant under Schedule 5 to the Town and Country Planning Act 1990; (ii) since the two sites shared a common boundary, they could be treated as a single site under para 2 of Schedule 13, and thus the 1955 permission covered both; and (iii) para 9 of Schedule 13 did not allow the council to reject an application altogether, and they had therefore made no effective determination for the purposes of para 9 and had now to be taken to have accepted the respondent’s suggested conditions. The council appealed, contending that the respondent’s application had not been validly made because: (i) it referred to a lapsed permission as well as to an extant one, and did not accurately identify the mineral site to which it related; and (ii) the suggested conditions were completely different from the disposal of colliery rubbish and did not fall within the ambit of Schedule 13, since they would threaten, rather than protect, the environment. Held: The appeal was dismissed. 1. The respondent’s application had sufficiently identified the land to which it related for the purposes of para 9(2), since it contained site details and a plan, and the application as a whole clearly identified the relevant site. 2. Suggested conditions would not render an application invalid unless they were so far removed from what was contemplated by the planning permission as to invalidate it. It was impossible to characterise the respondent’s suggested conditions in this way, because colliery rubbish could include the materials he had listed, and the council had never imposed their own conditions as to what “colliery rubbish” could comprise. An application would fail to comply with para 9 only in extreme cases. It would not be invalid simply because it extended the planning permission. The approach of the trial judge could not be faulted. Milwyn Jarman QC (instructed by the solicitor to Caerphilly County Borough Council) appeared for the appellants; the respondent appeared in person. Sally Dobson, barrister