Regina (On the Application of Lowther) v Durham County Council and Another: CA 24 May 2001

The landowner sought to alter the fuel it used in a furnace at Thrislington, Durham, to a fuel which was constituted from waste. The council received a second opinion to the effect that the new fuel did not constitute a change in use. The objector appealed.
Held: The council had been properly advised. The fact that a use of material had additional purposes, did not necessarily create a second use for planning permission. It could, but whether it did was a question of fact and degree for the council sub-committee.
Lord Phillips MR referred to the caselaw and said: ‘West Bowers involved deciding whether a particular operation fell into one or both of two specific categories of operation. On the facts the Court of Appeal held that it fell into both. There is no difficulty in following the logic of this conclusion. The facts were such that an objective onlooker when asked what the operation involved might have said ‘digging a reservoir’ or ‘recovering gravel’ or both. The operation had two physical aspects the one the corollary of the other; a hole was dug; gravel was removed. Each aspect fell into a different planning category.
West Bowers recognised that one indivisible process could amount, for planning purposes, to two activities. It does not follow that the different aspects of a process always fall to be categorised as different operations or uses of land for planning purposes. Lord Kingsland did not suggest that disposing of petcoke was a distinct use of the land at Thrislington, although petcoke is a by-product of the oil industry that has all the features of waste, save that its qualities as a source of energy have become appreciated so that it is universally burnt for energy recovery. Lord Kingsland’s contention that disposing of waste is always a separate land use, regardless of the nature or manner of disposal, cannot be derived from West Bowers.’


Lord Phillips MR


Gazette 07-Jun-2001, Times 22-Jun-2001, [2001] EWCA Civ 781, [2002] 1 PandCR 283




England and Wales


ConsideredWest Bowers Farm Products v Essex County Council CA 1985
Farmers sought to construct a reservoir for irrigation. To create the reservoir they would have to excavate substantial volumes of sand and gravel which would be sold on. The appellants contended that the extraction of the sand and gravel was an . .

Cited by:

CitedRoberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Lists of cited by and citing cases may be incomplete.

Planning, Environment

Updated: 19 May 2022; Ref: scu.85994