Davy v Spelthorne Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Wilberforce,Lord Roskill,Lord Brandon of Oakbrook,Lord Brightman |
| Judgment Date | 13 October 1983 |
| Judgment citation (vLex) | [1983] UKHL J1013-3 |
| Date | 13 October 1983 |
| Court | House of Lords |
[1983] UKHL J1013-3
Lord Fraser of Tullybelton
Lord Wilberforce
Lord Roskill
Lord Brandon of Oakbrook
Lord Brightman
House of Lords
My Lords,
This appeal is a sequel to the decision of this House in the case of O'Reilly v. Mackman [1982] 3 W.L.R. 1096. The issue of most general importance raised in the appeal relates to the circumstances in which a person with a cause of action against a public authority, which is connected with the performance of its public duty, is entitled to proceed against the authority by way of an ordinary action, as distinct from an application for judicial review.
The respondent is the owner of premises known as Riverside Works, Nutty Lane, Shepperton. The appellants are the local planning authority for the district within which those premises are situated. On 28th September 1977 the respondent made a planning application for the retention for a period of ten years of the existing buildings and the continued use of the premises as a precast concrete works. Thereafter, the respondent made another planning application, which was later withdrawn, and amended his original application, which was refused, and he met officers of the appellants on several occasions when he discussed with them the future use of the premises. The respondent alleges that eventually, as a result of the discussions and correspondence with the appellants' officers, on or about 6th November 1979 he entered into an agreement with the appellants whereby he undertook not to appeal against an enforcement notice to be served by the appellants upon him in respect of the use of the premises, provided that the notice would not be enforced by the appellants for a period of three years from the date of its service. The appellants served an enforcement notice on 15th October 1980 which, the respondent alleges, was in accordance with that agreement. The enforcement notice stated that the appellants required the respondent, within three years of the date when the notice took effect, to cease using the land for the manufacture of concrete products and to remove from it all buildings and works. The respondent did not appeal against the enforcement notice and the time for so doing has long since expired. The notice took effect thirty-five days after the date of service, 15th October 1980, and the time for appealing against it expired when it took effect. The respondent alleges that he refrained from appealing against the enforcement notice in pursuance of the agreement of 6th November 1979 and that he entered into that agreement on the advice of the appellants' officers.
On 24th August 1982 the respondent issued a writ against the appellants. In his statement of claim he made allegations including those which I have summarised. He also alleged that the agreement of 6th November 1979 was ultra vires the appellants and void on several grounds which I need not now particularise. He claimed damages from the appellants on the ground that the appellants, or their officers, had purported to advise him as to his rights under the Town and Country Planning Act 1971 ("the 1971 Act"), and that their advice had been negligent. The appellants deny that there was any legally enforceable agreement between the respondent and themselves. They also deny that they, or their officers, purported to advise the respondent on his rights, and they say that, if they did give any such advice, it was not given negligently. For the purposes of the present appeal the respondent's allegations must be taken to be true.
The relief claimed by the respondent was as follows:
1. An injunction ordering the appellants not to implement the enforcement notice.
2. Damages.
3. An order that the enforcement notice be set aside.
The appellants applied to have the writ and statement of claim struck out under the Rules of the Supreme Court, Order 19 Rule 1, or under the inherent jurisdiction, on the ground that they were an abuse of the process of the court. Their application was rejected by the Vice Chancellor on 11th October 1982, before the decision of this House in O'Reilly ( supra), and the learned Vice Chancellor's reasons have been largely superseded by that decision. The appellants appealed and the Court of Appeal (Cumming-Bruce and Fox L.JJ. and Bush J.), with the decision of your Lordships' House in O'Reilly before them, ordered that Claims 1 and 3, and certain portions of the statement of claim relating to them, be struck out, on the ground that they raised questions of public law which could only be raised by way of judicial review under Rules of the Supreme Court, Order 53. The Court of Appeal left the respondent's claim for damages for negligence alive. In the instant appeal, the appellants' seek to have that, the only remaining claim, struck out.
The first contention of the appellants is that the respondent's claim for damages involves a challenge of the enforcement notice which is, in substance, a challenge of its validity, and which is therefore barred by section 243 of the 1971 Act. In order that the respondent may succeed in his claim for damages, he must establish three things - viz. (1) that the appellants, or their officers, advised him on his rights under the 1971 Act and that they owed him a duty of care when they did so; (2) that they were in breach of that duty by negligently advising him not to appeal against the enforcement notice, and (3) that he has suffered damage flowing from the breach. The damages are claimed because, according to the respondent, he had a good defence to the enforcement notice which he could, or at least might, have established, if he had appealed against the notice timeously, but which he lost the chance of establishing when he acted on the appellants' advice and, in accordance with the agreement of 6th November 1979, did not appeal. It is thus a necessary step in the respondent's case for him to show that he had a good defence, good enough to give him at least a chance of successfully challenging the enforcement notice, if he had appealed against it in time. The amount of damages to which he would be entitled will, of course, depend largely on the prospects of success if he had appealed. The appellants maintain that the respondent is not entitled to have the merits of his defence investigated in these proceedings because the defence is in substance a challenge of the validity of the enforcement notice, and is therefore barred by section 243 of the 1971 Act. Section 243(1) (as amended by the Local Government and Planning (Amendment) Act 1981) ("the 1981 Act") provides as follows:
"243(1). Subject to the provisions of this section —
( a) The validity of an enforcement notice shall not, except by way of an appeal under Part V of this Act, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought;"
Part V of the 1971 Act deals with enforcement of planning control. The first section in Part V is section 87 which (as substituted by the 1981 Act) provides that a local planning authority shall have power to serve an enforcement notice in cases where there has been a breach of planning control. Section 88 (as substituted by the 1981 Act) provides:
"88(1). A person having an interest in the land to which an enforcement notice relates may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2). An appeal may be brought on any of the following grounds -
(a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged;
(b) that the matters alleged in the notice do not constitute a breach of planning control;
(c) that the breach of planning control alleged in the notice has not taken place;
(d) in the case of a notice which, by virtue of section 87(4) of this Act, may be issued only within the period of four years from the date of the breach of planning control to which the notice relates, that that period had elapsed at the date when the notice was issued;
(e) ….
(f) ….
(g) ….
(h) ….".
The defence on which the respondent would have relied would have been under paragraph ( d) of that section. The effect of section 243(1)( a) is to prohibit the bringing of appeals on any of the grounds to which it relates before the High Court and, in accordance with section 88(1), to substitute the Secretary of State as the forum for deciding such appeals. Section 88(1) also limits the time for appealing to the period before the date on which the enforcement notice is to take effect. Accordingly, the appellants say that the present proceedings, being in substance an appeal against the enforcement order, are incompetent because they are brought before the wrong tribunal and also, although I did not understand this to be relied on as a separate point, because they are out of time.
I note in passing that although section 243(1)( a) provides that the "validity" of an enforcement notice is not to be questioned except as therein provided, the word "validity" is evidently not intended to be understood in its strict sense. It is used to mean merely enforceability. That appears from a consideration of the grounds on which an appeal may be brought under Part V of the 1971 Act, which are not limited to matters affecting the validity of the notice. The relevant grounds are set out in section 88(2) part of which I have already quoted, and it is apparent that paragraph ( a), (at least) goes to the merits rather than to the validity (in the strict sense) of the notice. Accordingly, the fact that the respondent...
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