Fawcett Properties Ltd v Buckingham County Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER,MASTER OF THE ROLLS |
| Judgment Date | 27 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0427-3 |
| Date | 27 April 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J0427-3
The Master of the Rolls (Lord Evershed)
Lord Justice Romer and
Lord Jusitce Pearce
In The Supreme Court of Judicature
Court of Appeal
MR J. P. WIDGERY, Q. C, and MR ALAN FLETCHER (instructed by Messrs Sharpe, Pritchard & Co., agents for Mr. R. E. Millard, Aylesbury) appeared on behalf of the Appellants (Defendants below).
MR R. E. MEGARRY, Q. C. and MR C. F. FLETCHER-COOKE, Q. C. (instructed by Messrs A. L. Philips & Co.) appeared on behalf of the Respondents (Plaintiffs below).
In this case the validity is impugned by Fawcett Properties Limited (Respondents in this Court) of a condition imposed by the Appellants, the Bucks County Council, as the relevant planning authority under the Town and Country Planning Act, 1947, upon the grant of permission to one Clark, the Respondents' predecessor in title, to build two farm workers' cottages at Chalfont St. Giles. Mr. Clark first applied for such permission in May, 1952, and it was granted, upon condition, in the following July. Owing to certain difficulties in siting the cottages, Mr. Clark's proposal and the permission given for it had to 'be abandoned, and a slightly different planning proposal was made, by him in November, 1952. Permission to erect the farm workers' cottages according to this second proposal was granted, upon condition, on the 5th December, 1952, by the Clerk to the Araersham Rural District Council for and on behalf of the Appellants. We are only concerned with the terms of the document recording this permission on the 5th December, 1952. In certain (though immaterial) respects it differed from the earlier document of July; but the condition with which we are concerned appeared in fact in both documents in identical' language, and I will read it. It is as follows:" The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119 (1) of the Town and Country Planning Act, 1947, or in forestry, or in an industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid".
In accordance with Rules promulgated by the Ministry of town and Country Planning, the document granting the permission of the 5th December, 1952, also contained a statement of "the reasons for imposing" the condition which was as follows: "because the Council would not be prepared to permit the erection of dwelling houses on this site unconnected with the use of the adjoining land for agricultural or similar purposes".
Mr. Clark proceeded to erect the two cottages and no question ever arose in regard to them or in regard to the terms or efficacy of the condition between Mr. Clark and the Appellant Council, But the Respondents, having succeeded to the interest of Mr. Clark, have contended and now contend that the condition is wholly ineffective on the grounds that it was, according to its terms, beyond the competence of the Appellant Council to impose in accordance with the provisions of the Town and Country Planning Act or that it is void for uncertainty, or that, upon its proper interpretation, its force is now exhausted.
As is well known, the effect of the Town and Country Planning Act, 1947, was to place all land in England under planning control so that (so far as is relevant to this case) no vacant land could be "developed" by being built upon save with the permission of the local planning authority (in this case the Appellant Council), which permission might be granted either unconditionally or subject to conditions. Thus it is that section 14(1) of the Act provided so far as material: ".…where application is made to the local planning authority for permission to develop land, that authority may grant permission either unconditionally or subject to such conditions as they think fit, or may refuse permission; and in dealing with any such application the local planning authority shall have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations"
There was in this case at the relevant date no operative "development plan" for the area in question. It follows, therefore, that the obligation of the Appellant Council under the section was to have regard "to any other material consideration", and it is not in doubt that the effect in the present case of these five words which I have quoted was to introduce and make obligator; for the Appellants' consideration (there having been no direction by the Minister) the matters indicated by the final words of section 36 of the Act, namely, "the provisions which in their opinion will be required to be so included" (that is, included in the development plan when operative) "for securing the proper Planning of the said area".
At the relevant date there had been published by the Appellants what is called an "Outline Development Plan for Buckinghamshire", a print of which is document 8 in our papers, The most relevant paragraph of this document is set out in the judgment of Lord Justice Romer which I have had the advantage of seeing; and I do not repeat it. It is sufficient for the purpose 0f my judgment (for there is no dispute upon the matter "between Mr. Magarry for the Respondents, and Mr. Widgery for the Appellants' to say that the area of Chalfont St. Giles, which includes the law in question, was and is intended to form part of what is generally known as London's Green Belt, and as such dedicated to rural use and excluded accordingly from any form of urban development. The "reason" given in the planning document of the 5th December, 1952, is conceded to reflect by its language that purpose: and it is also (conceded, as I have already indicated, and as I later repeat, that by the joint effect of sections 14 and 36 of the Act it was the Appellants' duty in considering Mr. Clark's application for planning permission to have regard to the provision which would in their opinion be required for achieving that purpose.
I take first Mr. Megarry's more broad and general attack on the validity of the condition, viz., that in spite of the generalist- of the language of section 14 (1) of the Act, ".…such conditions as they think fit", it is not open to the local planning authority to impose a condition in reference to a proposed structure related not to the manner in which the building may be used (e.g. as a residence, or as a shop, etc.) but to the class of persons who may use or occupy it. Upon this point I am content to adopt the conclusion and reasoning of Mr. Justice Roxburgh, who stated that acceptance of such an argument would involve reading some gloss or qualification into the language chosen by Parliament and that he could find no sufficient justification for doing so. The learned judge observed (and I respectfully agree with him) that the examples given in subsection (2) of the section are expressed to "be without prejudice to the generality of the preceding subsection, and cannot, therefore, properly be invoked for the very purpose of limiting that generality. I add that, in my judgment, the fact that the terms of section 12 of the Act in general provide that a Material change in the user of premises will constitute development lends support to the interpretation of the general language of section 14(1) according to its natural sense.
Though I am taking the point out of its order, I can also deal here, and "briefly, with Mr. Megarry's last submission, viz., that on its true construction the condition only purported to apply by way of restriction to the first occupation of the cottages, so that its force must now "be taken as spent. Mr Megarry did not develop the argument at any length and he will therefore, I hope, forgive me if I reject it somewhat summarily. It is sufficient, in my view, to say that I do not think the language of the condition can fairly be so construed and that no planning authority could sensibly in a case of this kind be supposed to be discharging its statutory duty by imposing a condition so restricted.
To my mind the most difficult question is whether, when regard is had, on the one hand, to the planning scheme or proposals of the Appellant Council, which may be deduced from the Exhibit No. 8 in our papers, and the reasons given "by the Appellant Council for the imposition of the condition in December, 1952; and, on the other hand, to the scope and effect of the condition itself according to a fair interpretation of the language, the latter ought to 1 treated as having been beyond the Appellant Councils powers, not "being fairly and reasonably related to the former. In formulating the question, I have, as a matter of language, substituted (by reference) the words" the planning scheme and proposals of the Appellant Council" for the words used by Mr. Justice Roxburgh "the local planning requirements". Both forms of words depart some what from the language of Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government. 1958, 1 Queen's Bench, page 554, at page 572, where he spoke of the requirement that the conditions should "fairly and reasonably relate to the permitted development". The test proper to be applied, however it be expressed, is derived from the last four lines of section 14 (1) of the Act as they are qualified in the present case by the terms section 36 of the Act, the joint effect of these provisions being (so far as relevant to the present case) that in dealing with Mr. Clara's application to build the two "farm workers' cottages" the Appellant Council were bound to have regard to the provisions which in their opinion, would be required to be included in the then contemplated development plan in respect of this area for securing its proper planning. It seemed at one time...
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