TOWN_AND_COUNTRY_PLANNING

In October 1952, a predecessor in title to the defendants, having applied to extract marl from land in Staffordshire, obtained planning permission, under the Town...In October 1952, a predecessor in title to the defendants, having applied to extract marl from land in Staffordshire, obtained planning permission, under the Town and Country Planning Act 1947, for the extension of marl-hole L.

It was a condition of the permission that soil to a depth of 12in should be removed and separately stored until required for respreading (the topsoil condition).

In operations carried out in or about 1954 a quantity of topsoil was removed and taken to a place unknown (the early operations).

No work relating to the permission was carried out until the events in dispute.

In February 1996 the respondent council, alleging that the 1952 permission had lapsed, obtained an interlocutory injunction restraining the defendants from reworking the site.

The council's allegation was based upon section 65 of the Town and Country Planning Act 1965 (re-enacted by the Town and Country Planning Act 1971 and modified by regulation 6 of the Town and Country (Minerals) Regulations 1971), which applied to permissions granted before 1 April 1969 where the development to which they related had not been begun before 1968.

Such permissions lapsed if the relevant development was not begun within the 10 years ending on 1 April 1979.

By regulation 7, a development consisting of mining operations was taken to be begun on the earliest date on which any of the mining operations to which the relevant grant of planning permission relates begin to be carried out.

The defendants contended that mining operations had in fact begun with the carrying out of the early operations.A preliminary issue was directed in order to determine whether the defendants' contention was correct, it being assumed for that purpose that the early operations were limited to the removal of 12in of topsoil.

The trial judge held that no mining operation had begun.

The defendants appealed, relying, inter alia, upon Thayer v Secretary of State for the Environment [1991] 3 PLR 104, Malvern Hills District Council v Secretary of State for the Environment [1982] 1 EGLR 175 and United Refineries Ltd v Essex County Council [1977] 1 EGLR 123 for the proposition that, unless de mimimis, the removal of topsoil did amount to the carrying out of an operation for planning law purposes, provided only that such removal was referable to the relevant consent.Held: The appeal was dismissed.

1.

The proposition advanced by the defendants was not of assistance.

A mining operation, although not defined, was clearly part of the special regime under the 1947 Act for developments consisting of the winning and working of minerals.

While the removal of the topsoil was necessary to the winning, that process was only effected when the mineral in question had been made available: see English Clays Lovering & Pochin & Co v Plymouth Corporation [1974] 1 WLR 742.

It could not be assumed that the removal of 12in of topsoil had made the marl available for working.

In those circumstances, and given the special value attached to the topsoil, the defendants had failed to show that its removal could be seen as an unequivocal step in the mining operation.

2.

If the requisite beginning had been made, its effect would not have been negated by the breach of the topsoil condition, as that went to enforcement rather than validity.

Nor was it material that the likely motive for removing the topsoil was to avoid certain penal sanctions, the relevant test being an objective one.Harry Wolton QC and Peter Goatley (instructed by Oldham Rust Jobson, of Stafford) appeared for the appellants; Robin Purchas QC and David Park (instructed by the solicitor to Staffordshire County Council)