Calder Gravel Ltd v Kirklees Metropolitan Borough Council: 1989

The plaintiff’s predecessor in title had applied in 1946 for planning permission. The authority approved the application and for nearly 40 years all concerned had proceeded on the basis that outline planning permission had been granted. In 1984 the defendant council contended that in the absence of a document containing a formal grant no valid permission could have been granted. A fresh application for permission was refused and the plaintiffs therefore sought a declaration that there had been a valid grant of permission in 1946 under a document that had since been lost. The Vice-Chancellor heard evidence of the circumstances in which the application had been made and the manner in which the parties had acted in the intervening period. The evidence was not satisfactory on either side and he was unable to make a firm finding either that there had, or had not, been a formal grant of permission contained in a document that had since been lost. In those circumstances he considered it proper to resort to the presumption of regularity which he described in the following terms: ‘But in certain cases the law raises a presumption . . The presumption is that when there has been a long-term enjoyment of a right which can only have come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence of proof to the contrary, that there was a lawful origin. This is the historical basis from which the doctrine of lost modern grant was developed in relation to easements. Given the long enjoyment of a right of way, then the court presumed the existence of a grant of the right of way. I am not for a moment suggesting that the technicalities and indeed the legal consequences applicable to lost modern grant in the law of easements are applicable to the present case; they are not. The legal basis though is the same, namely a presumption from long enjoyment. The same presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty.’


Sir Nicolas Browne-Wilkinson V.-C


(1989) 60 P and CR 322


England and Wales

Cited by:

CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority CA 17-Jun-2005
In 1952, the Minister wrote a leter confirming the planning permissions for four quarries now owned by the claimants. In 1996, two of the quarries were separately included in a list of dormant sites, and in 19999 the applicant began to apply for . .
Lists of cited by and citing cases may be incomplete.

Planning, Administrative

Updated: 30 April 2022; Ref: scu.228574