Freda Margurita Jeary (Administratrix of the Estate of Charles Richard Jeary, deceased) (Plaintiff) (Appellant) Chailey Rural District Council and East Sussex Country Council (Defendants) (Respondents)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 22 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0222-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 1973 |
[1973] EWCA Civ J0222-6
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of His Honour Judge Stabb.
Lord Justice Russell,
Lord Justice Stamp and
Lord Justice Orr
Mr. M. R. HICKMAN (instructed by Messrs Lovell, White & King, Agents for Messrs Griffith, Smith, Dodd & Riley, Brighton) appeared on behalf of the Appellant.
Mr. JOHN GROVE (instructed by Messrs Farrington & whiting, Brighton) appeared on behalf of the Respondents.
I will ask Lord Justice Orr to deliver the Judgment of the Court.
LORD JUSTIOE ORR: This is an appeal, by the plaintiff in an action brought in the Queen's Bench Division, against a judgment given on the 6th July, 1972, by His Honour Judge Stabb, sitting as an additional Judge of the High Court, on the hearing of a preliminary issue ordered to be tried in the action. At the conclusion of that hearing the Judge made two Orders, first an Order in the issue that the plaintiff was not entitled to the relief sought and that the Court had no jurisdiction to entertain the action, and secondly, since it was agreed that that Order disposed of the action, an Order that judgment in the action be entered for the defendants; and it is against both those Orders that the present appeal is brought.
The original plaintiff in the action was a Mr. Jeary, who was the owner and occupier of premises called "Three Acres" at Ringmer in Sussex, but he subsequently died, and on the 22nd August, 1968, an Order was made giving leave to re-amend the statement of claim by the substitution of his widow and administratrix as plaintiff. The defendants in the action are the Chailey Rural District Council and the East Sussex County Council, and the matters at issue arose out of an enforcement notice served by the first defendants, as agents of the second defendants, on Mr. Jeary on the 6th March, 1964, pursuant to section 45 of the Town and Country Planning Act, 1962 (which we will call "the Act") and which read as follows:-
"The Chailey Rural District Council (acting for and on behalf of the East Sussex County Council, the local planning authority) hereby give you notice that it appears to the Council -
(1) that development of land, namely the change of use of land from a former caravan site to a breaker's yard, has been carried out at land adjoining Three Acres, Norlington Lane, Ringmer, without the planning permission required in respect thereof under Section 13 of the Town & Country Planning Act, 1962.
(2) that the said development was carried out between 2nd October 1963 and 5th February 1964.
(3) that you are the owner and occupier of the said land; And hereby require pursuant to Section 45 of the Town & Country Planning Act, 1962, that within fourteen days after the date on which this notice takes effect, you shall discontinue the use of the said land as a breaker's yard and restore the said land to its condition before the said development took place".
This notice was expressed to take effect on the expiration of twenty-eight days after its service, so that Mr. Jeary had until the 17th April, 1964, to comply with it, but he did not do so, nor did he within the time allowed appeal to the Minister of Housing and Local Government, though we have been told that he subsequently applied to the Minister for leave to appeal out of time, which application was refused on the ground that the Minister had no power to extend the time. In November, 1964, Mr. Jeary was convicted in proceedings brought against him in the Lewes Magistrates Court for non-compliance with the notice, and he asked the magistrates to state a case, but failed to enter into a recognizance as required for that purpose. In April, 1965, further proceedings for non-compliance were taken against him in the same Court, but on the 21st May, 1965, before they were heard, he issued the writ in the present action and the proceedings in the Magistrates Court were therefore adjourned to await the outcome of the action.
By the writ as originally indorsed, Mr. Jeary claimed only a declaration that the enforcement notice was a nullity, but the writ was later amended to seek an alternative declaration that the existing use of the land was as a breaker's yard and an injunction to restrain the defendants from prohibiting or interfering with such use. By his statement of claim he alleged that the facts stated in the enforcement notice were false, in that he had continuously since 1955 used the land, inter alia, as a breaker's yard and that there had been no development as alleged in the notice or at all. Later, in June 1967, the statement of claim was amended so as to allege, with due particulars, that the land had had an existing use as a scrap-dealer's and breaker's yard both since and for many years before the 1st July, 1948; the importance of that date being that development which took place on or before it may or may not have been in contravention of previous planning control but does not require planning permission under section 13 of the Act.
The defendants, by their amended defence, delivered in October 1967, denied the plaintiff's allegations as to user of the land before October 1963 and in addition, by paragraphs 11 and 13 of that pleading, contended that the plaintiff was precluded by section 177(1) of the Act from questioning the validity of the enforcement notice and therefore was not entitled to, nor did the Court have jurisdiction to grant, the relief claimed; and it was in these circumstances that an Order was made by the District Registrar on the 29th December, 1971, that the issues raised by these two paragraphs should be tried as a preliminary issue. For the purposes of that issue it is common ground that the facts alleged in the re-amended statement of claim must be assumed to be correct.
It will be convenient at this stage to refer to the relevant provisions of the Act, which are sections 12 and 13, contained in Part III; sections 45 and 46, contained in Part IV; and section 177.
So far as material for the present purposes, section 12(1) defines "development", except where the context otherwise requires, as "the making of any material change in the use of any buildings or other land"; and section 13(1) provides that (subject to the provisions of that section) planning permission is required for the carrying out of any development of land, but by virtue of section 223 and Schedule 14, Part III, paragraph 10, that sub-section does not apply to development carried out on or before 1st July 1948 ("the appointed day").
Section 45(1) provides as follows: "Where it appears to the local planning authority - (a) that any development of land has been carried out without the grant of planning permission required in that behalf in accordance with Part III of this Act, or (b)…. then, subject to any directions given by the Minister, and to the following provisions of this section, the local planning authority, if they consider it expedient to do so having regard to the provisions of the development plan and to any other material considerations, may, within the period specified in the next following sub-section, serve a notice under this section (in this Act referred to as an 'enforcement notice')."
Sub-section (2) of the same section provides that the period for the service of an enforcement notice which relates to the carrying out of development shall be the period of four years from the carrying out of that development; and sub-section (3) contains provisions as to the service and contents of the notice.
Section 46(1) provides: "A person on whom an enforcement notice is served…may, at any time within the period specified in the notice as the period at the end of which it is to take effect, appeal to the Minister against the notice on any of the following grounds, that is to says- (a)….; (b) that planning permission has been granted for that development; (c) that no planning permission was required in respect of that development, or, as...
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