It was an abuse of process to seek to challenge the planning status of a quarry, not by a prompt action for judicial review of the relevant planning permission, but in an ordinary action for a declaration brought after a substantial period of delay.
The Court of Appeal so held in a reserved judgment dismissing an appeal by the claimant, Stancliffe Stone Co Ltd, from the refusal of Mr Justice Moore-Bick (unreported (2004) EWHC 1475 (QB)) to make declarations sought as to the current planning status of two quarries, Endcliffe and Lees Cross Quarries, in or near the village of Stanton-in-Peak and for which the Peak District National Park Authority was the mineral planning authority.
Timothy Corner QC for the national park authority.
LORD JUSTICE CHADWICK said that the current planning status of Endcliffe and Lees Cross Quarries was said to turn on the true construction of a letter dated February 6, 1952 by which planning permission for the winning and working of stone from those and other quarries was granted by the Minister of Housing and Local Government under the Town and Country Planning Act 1947 and the General Development Order 1950.
The issue, in relation to that letter, was whether it granted a single planning permission in respect of all the quarries or four separate planning permissions.
Schedule 13 to the Environment Act 1995 provided a scheme for the review of old mineral planning permissions. The review scheme required the mineral planning authority to prepare lists of the mineral sites in their area.
A list of mineral sites was prepared and published on or about January 23, 1996. It contained a list of active sites and, also, a list of dormant sites which included Endcliffe and Lees Cross Quarries.
On January 15, 1999 the claimant made a planning application to permit recommencement of mineral extraction operations at the sites.
However, by a letter dated December 12, 2003 the claimant indicated for the first time that it was minded to challenge the inclusion of Endcliffe and Lees Cross Quarries in the 1996 list as dormant sites.
The premise which underlay the challenge to the treatment of Endcliffe and Lees Cross Quarries as dormant was that the letter of February 6, 1952 was the grant of a single planning permission in respect of all the quarries and not four separate planning permissions. The judge reached the conclusion that the letter contained four separate permissions for planning purposes, not one single permission.
If his Lordship had been required to decide the question of construction for himself de novo, he suspected that he would have reached the opposite conclusion, but he was not prepared to hold that the judge was wrong to reach the conclusion that he did.
There was, however, the contention, raised by a respondent’s notice, that the present proceedings were an abuse of process, being an attempt to raise in an action for declaratory relief matters solely of public law which ought to have dealt with by action for judicial review.
The 1996 list was intended, under the old mineral permissions review scheme, to be a definitive document on which the owners of land forming any part of the sites included in it, and members of the public living in the area, could rely in arranging their affairs.
If a scheme was to work as intended, a challenge to the list should be made before the dates, specified in the list, at which applications were to be made and conditions determined.
A challenge by way of judicial review, if brought within the three months prescribed by the Civil Procedure Rules, would meet that requirement. A challenge in an ordinary civil action some eight years later did not.
Lord Justice Buxton and Lord Justice Gage delivered concurring judgments.