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 engineering operation that was requisite for the use of the land for the purposes of agriculture and therefore permitted under the Order. The question was, whether the construction of the reservoir would fall within the classes of development to which section 26(2) applied as constituting the use of the land for the winning and working of minerals.
Held: The appeal was dismissed. Whether a single process amounted for planning to two activities was a question of fact and degree; that, if it involved two activities, each of substance, so that one was not merely ancillary to the other, both required permission; that the construction of the appellants’ reservoir would involve two activities, each of substance, the extraction of minerals on such a scale not being merely ancillary to the carrying out of the engineering operation of constructing the reservoir; and that, accordingly, planning permission was required for the winning or working of minerals involved. ‘Mr. Schiemann QC, for the appellants, submitted that the impossibility of constructing the reservoir without extracting the gravel demonstrated that the latter activity was an integral part of the former. There was one indivisible process. Therefore, permission for the former was permission for the latter. I accept the premise of that submission but reject the conclusion. The planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process may for planning purposes amount to two activities. Whether it does so or not is a question of fact and degree. If it involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission.’ Neill LJ: ‘I see no reason in principle why works that are carried out on land may not comprise development of more than one class. In many cases, building or engineering operations will involve as an incidental feature of the operations the extraction of gravel or other minerals. In such cases, it would often be quite inappropriate to treat the development as involving the winning or working of minerals within article 8(1)(b) of the Order of 1977.’
Judges:
Nourse LJ, Neill LJ
Citations:
(1985) 50 PandCR 368
Statutes:
Town and Country Planning General Development Order 1977 3
Jurisdiction:
England and Wales
Cited by:
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Considered – 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 . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 12 May 2022; Ref: scu.188854