Franklin and Others v Minister of Town and Country Planning
| Jurisdiction | England & Wales |
| Judge | Lord Thankerton,Lord du Parcq,Lord Normand |
| Judgment Date | 24 July 1947 |
| Judgment citation (vLex) | [1947] UKHL J0724-1 |
| Date | 24 July 1947 |
| Court | House of Lords |
[1947] UKHL J0724-1
Lord Thankerton
Lord Porter
Lord Uthwatt
Lord du Parcq
Lord Normand
House of Lords
My Lords,
The Appellants, who are the owners and occupiers of dwelling-houses and land situate at Stevenage, challenge the validity of the Stevenage New Town (Designation) Order, 1946, made on the 11th November, 1946, by the Respondent, under the New Towns Act, 1946, which had received the Royal Assent on 1st August, 1946. This challenge is made under section 16 of the Town and Country Planning Act, 1944, which provides by subsection 1 ( b) that the Court, if satisfied that the order or any provision therein is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by any requirement of the Act or of any regulation made thereunder not having been complied with, may quash the order or any provision contained therein, either generally or in so far as it affects any property of the applicant.
The relevant provisions of the New Towns Act, 1946, are as follows:
"I.—(1) If the Minister is satisfied, after consultation with any local authorities who appear to him to be concerned, that it is expedient in the national interest that any area of land should be developed as a new town by a corporation established under this Act, he may make an order designating that area as the site of the proposed new town.
(2) The provisions of the First Schedule to this Act shall have effect with respect to the procedure to be followed in connection with the making of orders under this section; and sections sixteen and seventeen of the Town and Country Planning Act, 1944 (which relate respectively to the validity and date of operation of orders under section one of that Act, and to the registration of such orders in the register of local land charges) shall apply to an order made under this section as they apply to an order made under section one of that Act."
The relevant provisions of the First Schedule as to orders under section one are as follows:
"1. Where the Minister proposes to make an order under section one of this Act, he shall prepare a draft of the order, describing the area to be designated as the site of the proposed new town by reference to a map, either with or without descriptive matter (which, in the case of any discrepancy with the map, shall prevail except in so far as may be otherwise provided by the draft order) together with such statement as the Minister considers necessary for indicating the size and general character of the proposed new town.
2. Before making the order the Minister shall publish in the London Gazette, in one or more newspapers circulating in the locality in which the proposed new town will be situated, and in such other newspapers, if any, as he considers appropriate in the circumstances, a notice—
( a) describing the area to be designated as the site of the proposed new town;
( b) stating that the draft of an order under section one of this Act has been prepared by the Minister in relation thereto and is about to be considered by him;
( c) naming a place within the said area where a copy of the draft order (including any map or descriptive matter annexed thereto) and of the statement required by the foregoing paragraph, may be seen at all reasonable hours) and
( d) specifying the time (not being less than twenty-eight days from the publication of the notice in the Gazette) within which, and the manner in which, objections to the proposed order may be made,
and shall, not later than the date on which the notice is published in the Gazette, serve a like notice on the council of the county and of the county district in which the land, or any part of the land, to which the order relates is situated, and on any other local authority who appear to him to be concerned with the order.
3. If any objection is duly made to the proposed order and is not withdrawn, the Minister shall, before making the order, cause a public local inquiry to be held with respect thereto, and shall consider the report of the person by whom the inquiry was held.
4. Subject to the provisions of the last foregoing paragraph the Minister may make the order either in terms of the draft or subject to such modifications as he thinks fit:
Provided that, except with the consent of all persons interested, the Minister shall not make the order subject to a modification including in the area designated as the site of the proposed new town any land not so designated in the draft order."
Section 16 of the Town and Country Planning Act, 1944, thus incorporated by section 1 (2) of the Act of 1946, restricts the remedy open to any person desiring to challenge the validity of an order, or of any provision therein, to the ground that it is not within the powers of the Act or that some requirement of the Act has not been complied with, so that he must proceed by application to the High Court, as therein provided, and he requires to satisfy the Court that the order is not within the powers of the Act, or that his interests have been substantially prejudiced by any requirement of the Act not having been complied with.
On 3rd August, 1946, the Respondent prepared the Draft Stevenage New Town (Designation) Order, 1946, and, on or about 6th August, 1946, he caused the same to be published and notices to be given as prescribed by paragraph 2 of the First Schedule to the Act of 1946. Thereafter objections were received from a number of persons, including the Appellants; accordingly, the Respondent instructed Mr. Arnold Morris, an Inspector of the Ministry of Town and Country Planning, to hold a public local inquiry, as prescribed by paragraph 3 of the said Schedule. Mr. Morris held the inquiry at the Town Hall, Stevenage, on the 7th and 8th October, 1946, and on the 25th October made a report to the Respondent, in which he set out a summary of the submissions made and the evidence given by and on behalf of the objectors and attached thereto a complete transcript of the proceedings, which began with an opening statement by Mr. Morris giving a brief recapitulation of the reasons that had led to the designation of Stevenage as the site of a new town.
As already stated, on the 11th November, 1946, the Respondent made the Order, which is under challenge.
On the 9th December, 1946, the Appellants, by notice of motion, applied to the High Court to have the Order quashed, on the following grounds:—
"(1) That the said Order is not within the powers of the New Towns Act, 1946, or alternatively that the requirements of the said Act have not been complied with and the interests of the Applicants have been thereby substantially prejudiced in that—
(A) before considering the objections of the Applicants the Minister stated that he would make the said Order, and was thereby biassed in any consideration of the said objections; and
(B) the Minister did not before making the said Order cause a public local inquiry to be held with respect thereto; and
(2) that the New Towns Act, 1946, impliedly requires that the objections of the Applicants should be fairly and properly considered by the Minister and that the Minister should give fair and proper effect to the result of such consideration in deciding whether the said Order should be made and that such implied requirements were not complied with."
There does not appear to be much dispute as to the facts, but a great deal rests on the proper inference to be drawn from these facts, which may be stated chronologically as follows:
On 21st January, 1946, a committee appointed in 1945 by the Respondent, as Minister of Town and Country Planning, and the Secretary of State for Scotland, known as the "Reith Committee", made an interim report, dated 21st January, 1946, and published as Command Paper 6759, in which it is stated in paragraph 16, "(1) Stevenage is suggested in the Greater London Plan, 1944, as one of the new towns in the outer ring round London. We are informed that the development of this town is a matter of urgency, and that the agency must be chosen before legislation can be obtained. (2) It is possible that by a special arrangement with the Hertfordshire County Council, at the request of the Minister of Town and Country Planning, the necessary land may be acquired for the County Council under section 35 of the Town and Country Planning Act, 1932, the Exchequer providing the necessary finance. We recommend that there shall be an arrangement between the County Council and a government sponsored corporation established by Royal Charter, which will enable the latter to proceed in advance of legislation. (3) A draft charter for this corporation, drawn up at our request by the Treasury Solicitor, is in Appendix 4 (Note: Charters for corporations established after legislation has been passed would derive from that legislation and be different in content)." The committee recommended in the ninth place, " Stevenage. Arrangements should be made for setting up immediately a public corporation for the development of a new town at Stevenage to proceed with the necessary work in advance of legislation—paragraph 16."
The New Towns Bill was introduced by the Respondent in the House of Commons on 17th April, 1946, and was ordered to be printed.
On or about 24th April, 1946, the Respondent sent letters to 179 owners of land at Stevenage inquiring whether they were prepared to sell land to the Respondent, with a view to the development of the area as a garden city, as provided by section 35 of the Town and Country Planning Act, 1932. There is no evidence that any land was acquired by the Respondent as the outcome of these letters, and we are entitled to assume that the Minister was acting on the suggestion of the Reith Committee, and that the proposal was superseded by the passage of the New...
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