Property law report

Environment: Material change of useOperator of quarry changing fuel type to secondary liquid fuel - applicant objecting - council deciding material change of use of land requiring planning permission - council considering report containing advice from counsel and reversing decision - applicant seeking to quash decision - judge finding advice not defective in law and dismissing application - applicant appealing - whether burning of waste on a significant scale as part of an operation always constituting a separate land use for planning purposes - appeal dismissedR (on the application of Lowther) v Durham County Council and another: Court of Appeal: Lord Phillips MR, Lord Justice Pill, Sir Martin Nourse: 24 May 2001Lafarge Redland Aggregates (LRA) owned a quarry, which it operated for lime processing.

LRA substituted a proportion of secondary liquid fuel (SLF) for the petroleum coke used to fuel one of its kilns.

The applicant, a local resident, objected to the burning of SLF.

An issue arose as to whether that substitution involved a material change of use of the land, for which planning permission was required.

The subcommittee of the first respondents, Durham County Council, considered a report based upon the advice of specialist planning counsel.

This was to the effect that the substitution of SLF constituted a material change of use, and accordingly, appropriate planning applications would have to be made.

LRA maintained that no material change of use had taken place and declined to make an application.

The council did not take enforcement action, but took further advice from leading counsel, which was set out in an officer's report, and advised that there was a distinction between waste disposal and energy recovery.

The use of SLF could not be both, and, because of its high calorific value, it constituted energy recovery.

The recovery process was an integral part of the manufacture of cement for lime and it would be wrong to characterise it as a separate use.

Counsel advised that 'the use of SLF...

does not and would not constitute a material change of use'.

The report concluded: 'on the basis of the advice given...

we would recommend the sub-committee to conclude that the use of SLF...

does not constitute a material change of use requiring a separate planning permission'.

The subcommittee accepted that resolution and reversed its earlier decision.The applicant sought to quash that decision, principally on the grounds that the advice contained in the report was defective in law and that advice led to the committee's change of mind.

The judge held that there was no defect in law arising from the report and it had been open to the subcommittee to come to a contrary view.

The applicant appealed.

It was necessary on the appeal to review the merits of the advice.

If counsel's conclusions were unsound in law, it followed that the council's subcommittee was significantly misled about material matters.

Thus, the issues were: l Whether burning of waste on a significant scale always constituted a separate land use for planning purposes, even if it was an integral part of some other process; l Whether burning waste on a significant scale could ever constitute a separate land use if it formed an integral part of some other process, and;l Whether the use of SLF constituted a separate land use in the instant case, and did it so alter the character of lime production as to result in a change in the use of the land.The appellant relied upon West Bowers Farm Products v Essex County Council [1985] 1 EGLR 271 to support the contention that where disposal of waste formed part of an operation, it had to be treated as a separate land use.Held: The appeal was dismissed.The decision in West Bowers did not lead to the conclusion that simply because waste was matter that had to be disposed of, a person who made constructive use of the waste for the purpose of an activity other than its disposal, but who incidentally disposed of the waste at the same time, had to be deemed to be making two uses of the land.

In fact, West Bowers was at odds with such a conclusion.

It recognised that, for planning purposes, one indivisible process could amount to two activities.

But it did not follow that the different aspects of a process always fell to be categorised as different operations or uses of land.

The burning of waste on a significant scale did not always constitute a separate land use.An operation may involve a balance between the objective of waste disposal and the ultimate objective of the operation.

In such circumstances, it may be correct to hold that the land was being subjected to two uses.

Counsel's advice that the use of SLF was not a separate use of the land requiring planning permission contained no error of law.

Applying East Barnet Urban District Council v British Transport Commission (1961) 190 EG 221, an alteration in the source of power or fuel used for a process was capable of constituting a material change in the use of the land.

The question was one of fact and degree, and the subcommittee would have been well aware of that principle.

In the instant case, the character of the process was not altered to an extent that constituted a material change of use.Lord Kingsland QC and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Neil King QC and Reuben Taylor (instructed by the solicitor to Durham County Council) appeared for the first respondents; Gregory Stone and Thomas Hill (instructed by Travers Smith Braithwaite) appeared for the second respondent.