Abandonment of planning permission

In a decision of particular relevance to mineral planning authorities and operators, the general concept of abandonment of planning permissions has been rejected by the Court of Appeal. Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment and Others (The Times, 16 June) appears to be the first reported case where the point was directly in issue, and the outcome implies that planning authorities must in most circumstances rely on statutory machinery to ensure that apparently long disued planning permissions are not revived at a later date.

The case concerned a limestone quarry site in the Peak District National Park. Planning permission for mineral working had been gratned in 1950 to Hartshead Quarries Ltd, but in 1966 the company informed the local planning authority that they would cease quarrying, and the authority agreed that planning conditions concerning waste heaps had been adequately carried out.

During the next 11 years, planning applications for various types of development on the site wre made. One, to establish a caravan site, was granted but remained unimplemented.

In 1978, Pioneer Aggregates were interested in reviving old mineral workings, and decided to test the planning authority's view that the 1950 permission was no longer extant. Token acts of development were commenced, and the authority imposed an enforcement notice which was upheld by the Secretary of State on the ground that the permission had long been abandoned and could no longer be relied upon.

But the Court of Appeal, agreeing with Mur Justice Glidewell's decision at first instance, quashed the decision of the Secretary of State. Although the court agreed that abandonment was a concept recognised in certain fields of private law, and could be relevant indetermining established use rights in planning law, they held that it was generally inapplicable to planning permissions.

A planning permission was a public right which ran with the land, and such a right should not be affected by the subsequent intentions of owners and occupiers. As s 33 of the Town and Country Planning Act 1971 states, "any grant of planning permission to develop land (except in so far as the permission otherwise provides) enure for the benefit of the land and for persons for the time being interested therein."

Aside from specific statutory provisions, the courts have, however, recognised two situations where planning permission might cease to be effective at a later date. First, where more than one permission is granted for a certain site - which is quite possible, and legal - a developer may not implement a permission which would be inconsistent with development already carried out under one of the other permissions.

Secondly, the so-called 'Slough Estates principle', provides that rights under a planning permission will be waived if the landowner elects to claim some benefit to which he would not be entitled if the permission was effective. Apart from these limited situations, it is clear from the Pioneer Aggregates decision that planning authorities must use the specific statutory pwers available if they are concerned at the prospect of partially implemented planning permissions being revived at a later date.

In particular, permissions may be revoked under s 45 of the Town and Country Planning Act, and mineral planning authorities will have a new power under s 10 of the Town and Country Planning (Minerals) Act 1981 (not yet in force) to prohibit resumption of development, provided they are satisfied that no mineral development has been carried out to any substantial extent for at least two years, and that it appears that resumption is unlikely. The exercise of both these powers, however, requires confirmation by the Secretary of State and will involve payment of compensation.

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