Fawcett Properties Ltd v Buckingham County Council

CourtHouse of Lords
JudgeLord Cohen, Lord Morton of Henryton, Lord Keith of Avonholm, Lord Denning, Lord Jenkins
Judgment Date26 Oct 1960
JurisdictionEngland & Wales

[1960] UKHL J1026-1

House of Lords

Lord Cohen

Lord Morton of Henryton

Lord Keith of Avonholm

Lord Denning

Lord Jenkins

Fawcett Properties Limited
and
Buckingham County Council

Upon Report from the Appellate Committee, to whom was referred the Cause Fawcett Properties Limited against Buckingham County Council, that the Committee had heard Counsel, as well on Tuesday the 12th, as on Wednesday the 13th, Thursday the 14th, Monday the 18th and Tuesday the 19th, days of July last, upon the Petition and Appeal of Fawcett Properties Limited, whose registered office is situate at 170 King's Road, Chelsea, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 27th of April 1959, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of the Buckingham County Council, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 27th day of April 1959, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Cohen

My Lords,

1

The question for your decision is as to the validity of a condition, which the Respondents in exercise of powers conferred on them by section 14 (1) of the Town and Country Planning Act, 1947, imposed on the Appellants when granting, on the 5th December, 1952, planning permission for the development of two farm-workers' cottages. The condition is in the following terms: —

"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 dependant upon agriculture and including also the dependants of such persons as aforesaid."

2

The Appellants impugn the validity of the condition on four grounds. They say—

(A) That the imposition of a condition restricting the user of premises according to the personal circumstances of the persons using them is ultra vires the Respondents.

(B) That the condition now under consideration is ultra vires in that it is so wide that in the result it cannot fairly and reasonably be said to relate to the permitted development or to any policy possible under the Act of 1947.

(C) That the condition is void for uncertainty, and

(D) That in any event the condition has been fulfilled and its force is now spent.

3

Roxburgh, J. rejected the first of those arguments but accepted the second and did not find it necessary to reach a conclusion on the third or fourth. The Court of Appeal rejected all four arguments.

4

My Lords, I have been privileged to read the Opinion about to be delivered by my noble and learned friend, Lord Morton of Henryton, and do not find it necessary to restate the facts or the relevant sections of the 1947 Act and of the various housing Acts.

5

Finding myself as I do in complete agreement with the opinions expressed by all your Lordships on the first, second and fourth of the arguments summarised above, I shall state my conclusions thereon quite shortly.

6

Dealing with the first of them I agree entirely with what was said on the subject by their Lordships in the Court of Appeal. The argument that a planning authority cannot specify which persons may live in a house but only the purposes for which it is to be used, apparently concedes that the defendants in the present case could have made it a condition that the cottages should only be used for the purpose of housing agricultural workers and it is not easy to appreciate any significant difference between that condition and a condition that the occupation of the cottages should be limited to persons employed in agriculture. The difficulties in Mr. Megarry's argument are further illustrated by Romer, L.J.—see 1959 Ch. p. 572—and I cannot usefully add anything to what he said on the subject.

7

The fourth argument, namely, that the condition has been fulfilled and its force is now spent, was not, I think, seriously pressed before us. Like the Master of the Rolls, I cannot think that any planning authority could sensibly, in a case of this kind, have supposed that it was discharging its statutory duty by imposing a condition restricted to the first occupation of the cottages.

8

I return to the second argument. Here, too, I find myself in complete agreement with their Lordships in the Court of Appeal. I assume, in dealing with this argument, that the condition which has been imposed is not so uncertain as on that ground to be invalid. I shall deal with the question of uncertainty as a separate matter. On this basis it seems to me quite plain that though the wording of the condition may be unfortunate it cannot be said to be unrelated to the planning purposes the fulfilment of which is the duty of the Respondents.

9

The Master of the Rolls relied on the decision of the Court of Appeal in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. p. 223, where the question at issue was as to the validity of a condition imposed by the Wednesbury Corporation in granting a licence to the Plaintiff for Sunday cinema performances. The condition was to the effect that no child under 15 years of age should be admitted to Sunday performances at the cinema with or without an adult. It was sought to impeach the validity of this condition on the ground that it constituted an unreasonable exercise of the powers of the Corporation. The Court upheld the validity of the condition. The relevant passages of the judgment of Lord Greene, then M.R., are fully set out in the judgment of the Master of the Rolls in the present case. I will content myself with citing one passage, which reads as follows: —

"I do not read him (Atkin, J. as he then was) as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose."

10

In that case their Lordships were concerned with the policy of the local authority. In the present case it would perhaps be more accurate to say that what the House is concerned with is not planning policy but means of effectuating a policy predetermined. Be that so. I agree with Romer, L.J. (see 1959 Ch. p. 569) that the principle of the Wednesbury umbrella covers decisions reached in effectuating planning policy.

11

In support of this second alleged ground of invalidity Mr. Megarry relied mainly on the following argument. He said that the scope of the condition was unrelated to the policy declared in the outline plan or to any other sensible planning policy. He conceded that if his first argument was ill-founded the condition that the occupation of the houses should be limited to persons whose employment is employment in agriculture as defined by section 119 (1) of the Act of 1947 was unobjectionable. But he said that extending the list of permitted occupants to (1) persons whose latest employment had been in agriculture, a category which would include persons who had been employed in agriculture overseas (2) persons employed in "an industry mainly dependent upon agriculture" and (3) dependants of such persons as aforesaid, had so wide an effect that the condition could not be said to be reasonably related to the planning policy indicated in the permission. Mr. Megarry gave a number of illustrations in argument showing that a large category of persons could qualify as tenants whose occupation of the cottages could bear no relation to any sensible planning policy and certainly not to the policy outlined in the Outline Development Plan.

12

The Respondents by their counsel, both in the Court of Appeal and before your Lordships, frankly admitted that curious and anomalous positions might arise under the terms of the condition and that certain persons whose connection with agriculture was non-existent or remote might qualify as tenants whilst other persons who might ordinarily be expected to qualify would find themselves excluded. But they submitted that the condition made a broad division between persons whose employment is such that they may have to live in a rural area and persons whose employment is such that they need not; and that the effect of the condition was to exclude such persons as industrial or office workers who might otherwise have come into the area; that it therefore made a sensible contribution to the retention of the rural character of the part of the county concerned. The condition, it was said, was right in principle and the imperfection of detail afforded insufficient grounds for holding it to be ultra vires. Romer, L.J. agreed with this contention but thought the condition was unfortunately worded. He added that absurd results could follow but that, having regard to its terms, it did seem that broadly speaking it was in line with the Outline Development Plan. "It is", he said, "not possible to say...

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