Eastbourne Corporation v Fortes Ice Cream Parlour (1955) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SELLERS |
| Judgment Date | 23 March 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0323-5 |
| Court | Court of Appeal |
| Date | 23 March 1959 |
[1959] EWCA Civ J0323-5
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Sellers and
Lord Justice Ormerod.
Mr. JOHN PENNYCUICK. Q.C. and Mr. J.D. JAMES (instructed by Messrs. Clifford-Turner & Co.) appeared on behalf of the Appellants, Forte's Ice Cream Parlour (1955) Limited.
Mr. GEOFFREY LAWRENCE, Q. C. and Mr. PETER BOYDELL (instructed by Messrs. Sharpe Pritchard & Co., Agents for Mr. F. H. Busby, Town Clerk, Eastbourne) appeared on behalf of the Respondents, Eastbourne Corporation.
: The Appellants, Forte's Ice Cream Parlour (1955) Limited, at all material times have occupied at Eastbourne premises which they have used as an ice cream parlour. In June, 1956, the Appellants placed on the forecourt outside the premises an automatic coin-operated ice cream sales machine, bolted to the ground when in use and supplied with refrigeration by means of electric cables from the shop. The Appellants did not ask for or obtain planning permission from the Respondents, the Eastbourne Corporation, who, in May, 1957, served on the Appellants an enforcement notice requiring removal of the machine. The Appellants appealed to the Justices under section 23 sub-section 4 of the Town and Country Planning Act, 1947; and the Justices quashed the notice, on the ground that no "development", within the meaning of section 12 of the Act, had occurred. On appeal, by way of Case Stated, by the Eastbourne Corporation to the Divisional Court of the Queen's Bench Division, that Court held (by a majority; Lord Goddard, Chief Justice, dissenting) that the Justices had no power under the Town and Country Planning Act to enquire or determine whether in fact development had taken place. From that decision, Forte's Ice Cream Parlour (1955) Limited now appeal to this Court.
I adopt as a statement of the problems raised by the appeal the language of Lord Goddard at 1953 2 Queen's Bench page 49: "The question we have to determine depends, in my opinion, on the construction of the words 'if satisfied that permission was granted under this Part of this Act for the development to which the notice relates, or that no such permission was required in respect thereof'. Is the court to assume that there has been development and to confine themselves to considering whether it is development permitted by the Act without permission, or can they go further and decide that there has not in fact been any development? I propose in the first place to treat this as a matter of construction and then to consider what effect, if any, the cases which have been decided on the section have upon the conclusion to which I have come".
I propose accordingly for my part also to deal with the problems raised as he did and as, indeed, they were presented to us by Counsel for the Appellants and Respondents: namely, first to consider the matter of construction of the Act, and second, the effect of the cases, and particularly of the East Riding case in the House of Lords, reported in 1957 Appeal Cases at page 223.
First, then, as to the construction of the Act. The vital words in section 23 sub-section 4 are those cited by Lord Goddard - "or that no such permission was required in respect thereof".
Section 12 sub-section 1 enacts that "permission shall be required under this Part of this Act in respect of any development of land which is carried out after the appointed day" - the appointed day being July 1st, 1948. Sub-section 2 provides: "In this Act, except where the context otherwise requires, the expression 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land: Provided that the following operations or uses of land shall not be deemed for the purposes of this Act to involve development of the land, that is to say…": and then there are under paragraphs (a) to (f) inclusive a number of such cases not deemed to involve (accordingly) development.
Sub-section 3: "For the avoidance of doubt it is hereby declared that for the purposes of this section.…" - and then there are two paragraphs showing matters which, if otherwise in doubt, are to be treated as affirmatively involving development (for example, "the use as two or more separate dwelling-houses of any building previously used as a single dwelling-house"); and there is a proviso which I need not read.
Sub-section 5 is as follows: "Notwithstanding anything in this section, permission shall not be required under this Part of this Act…": and then there follow in three paragraphs, (a), (b) and (c), cases in which permission is not required for what is assumed none the less to be development. Again there are provisos to which I need not allude.
Mr. Lawrence observed on behalf of the Respondents that three conceptions are involved in section 12, namely: (1) that of "development of land", which is closely defined in the section; (2) that of changes of user which are deemed not to constitute development; and (3) that of changes of used which, though constituting development, are excused from requiring permission. Mr. Lawrence drew attention to the distinction between the second and third conceptions. Parliament might, as he pointed out, have treated those changes in user falling within the second conception in the same way as those falling within the third, namely, that they were excused from the requirement of permission. An answer to his point in this respect may be that, by so doing, Parliament would or might have thereby Widened the meaning of the word "development". But the distinction is made and was somewhat relied upon, as later appears, by Mr. Lawrence in support of his argument for the Corporation.
I turn at once to section 23. Sub-section 1: "If it appears to the local planning authority that any development of land has been carried out after the appointed day without the grant of permission required in that behalf under this Part of this Act, or that any conditions subject to which such permission was granted in respect of any development have not been complied with, then, subject to any directions given by the Minister, the local planning authority may within four years of such development being carried out, if they consider it expedient so to do having regard to the provisions of the development plan and to any other material considerations, serve on the owner and occupier of the land a notice under this section".
Sub-section 2: "Any notice served under this section (hereinafter called an 'enforcement notice') shall specify the development which is alleged to have been carried out without the grant of such permission as aforesaid or, as the case may be, the matters in respect of which it is alleged that any such conditions as aforesaid have not been complied with, and may require such steps as may be specified in the notice to be taken within such period as may be so specified for restoring the land to its condition" - etc.
I can leave out sub-section 3. Sub-section 4: "If any person on whom an enforcement notice is served under this section is aggrieved by the notice, he may…appeal against the notice to a court of summary jurisdiction for the petty sessional division or place within which the land to which the notice relates is situated; and on any such appeal the court (a) if satisfied that permission was granted under this Part of this Act for the development to which the notice relates, or that no such permission was required in respect thereof, or, as the case may be, that the conditions subject to which such permission was granted have been complied with, shall quash the notice to which the appeal relates; (b) if not so satisfied, but satisfied that the requirements of the notice exceed what is necessary for restoring the land" (etc.) "shall vary the notice accordingly; (c) in any other case shall dismiss the appeal". As I have already stated, the relevant words in the last sub-section that I have read, sub-section 4, are "that no such permission was required in respect thereof".
It was conceded by Mr. Lawrence that if his arguments were to prevail the clear meaning of these words must exclude the relevant enquiry, videlicet, whether the use alleged or complained of constituted development at all. The concession was, in my judgment, necessary; for if upon this matter the construction and scope of the words be doubtful, then Mr. Lawrence would be inevitably faced with the serious difficulty presented to his argument by inconsistency created by other provisions in the Act and most forcibly by the terms of section 17.
Mr. Lawrence's first submission was based on the strict limitation upon the powers of Justices which appears from the language of section 23 sub-section 4 itself, and particularly the words in paragraph (c) "in every other case shall dismiss the appeal". The limitation is indeed plain and has been noted in the cases, including the East Riding case itself. With this background of strict limitation of powers, Mr. Lawrence then proceeded to emphasise the word "such" immediately before the word "permission" in the relevant formula. He contended - and in my judgment rightly contended - that the word "such" was a reference back to section 12, so that the phrase, when extended, reads "no permission under this Part of this Act was required" - etc. With this interpretation of the word "such" Mr. Megarry (who argued this point in the Guildford case, our Judgment in which follows after this case) was himself in agreement. It follows, according to Mr. Lawrence, that if you do refer back to section 12, then permission is only found to be...
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...court to give effect to the whole expression of the parliamentary intention”: see per Lord Evershed, M.R., in East-bourne Corporation v. Fortes Ice Cream Parlour (1955) Ltd. [1959] 2 Q.B. 92, at p.107. The same advice was given by the Privy Council in Canada Sugar Refining Co. v. Reg. [1898......