Good v Epping Forest District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE HIRST,LORD JUSTICE PETER GIBSON |
| Judgment Date | 05 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1105-4 |
| Docket Number | CHANF 92/0625/B |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 1993 |
[1993] EWCA Civ J1105-4
(The Vice Chancellor)
(Sir Donald Nicholls)
Before: Lord Justice Ralph Gibson Lord Justice Hirst Lord Justice Peter Gibson
CHANF 92/0625/B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR. B. PAYTON and LADY PONSONBY OF SHULBREDE (Instructed by Messrs Moss, Beachley & Mullem, London, W1) appeared on behalf of the Appellant.
MR. R. GRAY QC and MR. M. HUNT (Instructed by The Legal Department, Epping Forest District Council) appeared on behalf of the Respondent.
( )
Friday, 5 November 1993
This is an appeal by the plaintiffs, Mr Colin Geoffrey Good and Mrs Rita Good, in an action brought by them against Epping Forest District Council in which they claim a declaration that an agreement dated 22nd January 1987 and made between Mr Alan Elves and the council under section 52 of the Town and Country Planning Act 1971 is void in law. On 14th April 1992 Sir Donald Nicholls, Vice-Chancellor, dismissed the plaintiffs' claims. By their appeal the plaintiffs seek an order for that declaration in this court. The judgment of the Vice-Chancellor is reported at [1992] 3 PLR 103.
The plaintiffs in June 1987 bought Ashlings Farm. The farm, in High Ongar in Essex, is in the Metropolitan Green Belt. In 1985 the then owner, Mr Elves, applied to the defendants for planning permission to erect a house on the farm for a farm worker. On the farm there were then 1,000 pigs. Mr Elves needed a house for a pig man and, because of difficulty in getting a man to do the work, Mr Elves wanted to be able to offer the attraction of a house for husband and wife instead of accommodation in the farm house for an unmarried person.
For the reasons explained by the Vice-Chancellor in his judgment, and in order to protect the green belt from abuse, the Council took two precautions when granting planning permission to Mr Elves on 22nd January 1987. The first was to impose a condition to the effect that occupation of the new house should be limited to persons wholly or mainly employed, or last employed locally in agriculture…or a dependant of such a person residing with him but including a widow or widower of such a person.
The second precaution taken by the Council was to require from Mr Elves that he enter into a covenant under section 52 of the Town and Country Planning Act 1972 of which clause 3 provided:
"(a) That the said dwelling house when erected shall only be occupied by a person wholly or mainly employed in agriculture together with the spouse or other dependants of that person and (b) that the said dwelling house…shall not be sold away or otherwise alienated from the remainder of the application site."
The effect of the covenant, if valid in law, is to bind Ashlings Farm in the hands of successive owners. The covenant was registered as a local land charge so that the existence of it would be known to any subsequent buyer and the plaintiffs were aware of the terms of the covenant when they bought the farm in June 1987.
The plaintiffs wish to be free to sell the house for occupation by a person not "wholly or mainly employed in agriculture" and to sell it apart from the rest of the farm. If the section 52 covenant is held to be void, the plaintiffs can apply to the Council for removal or variation of the condition, which was imposed upon the grant of planning permission, as to occupation by persons so employed, and, if the Council refuse that application, the plaintiffs could then appeal to the Minister. There is, however, no provision for appeal to the Minister against a refusal by the Council to waive or vary the terms of a section 52 covenant. An application to the Lands Tribunal under section 84 of the Law of Property Act 1925 is the only route provided by statute by which the plaintiffs can seek an order for the discharge or modification of the covenant if it was valid in law when made.
The provisions of section 52 of the 1971 Act are now contained in section 106 of the Town and Country Planning Act 1990 as amended by section 12 of the Planning and Compensation Act 1991. A person against whom a planning obligation as there defined is enforceable may, after the expiry of the relevant period, apply to the planning authority for modification or discharge of it. That period is five years from the entering into the obligation or any other prescribed period of time. By section 106B provision is made for appeal to the Minister against a refusal by the planning authority to modify or discharge the obligation. These new provisions are not retrospective and the procedure is not open to the plaintiffs.
At the hearing before the Vice-Chancellor, the case for the plaintiffs presented by Mr Payton of counsel was based primarily upon the proposition that the terms of the section 52 agreement could not lawfully be imposed as conditions; and the power of the Council to enter into a section 52 covenant was limited to the taking of such covenants from any land owner seeking planning permission as could properly be imposed by the Council as conditions upon the grant of planning permission. He relied for that proposition upon passages in the judgment of Lloyd LJ in Bradford Metropolitan Council v D of E [1987] 53 P & CR 55 and of Kerr LJ in R v Westminster City Council, Ex parte Monahan [1990] 1 QB 87. Further, it was submitted for the plaintiffs that the Council, by the course taken in imposing the conditions and in requiring the section 52 agreement in different and more stringent terms, demonstrated that to their knowledge the terms of the section 52 agreement were contrary to the policy declared by the Secretary of State; that those terms if imposed as conditions would be struck down by the Secretary of State on appeal; and that to seek by means of a section 52 agreement rights which could not be got by means of planning conditions was to act for an improper ulterior purpose and in breach of the high standard of conduct required of a local authority.
As appears from his judgment, the Vice-Chancellor held:
(i) that the Council would have been acting within its powers as a local planning authority if it had imposed, as conditions attached to the planning permission pursuant to section 29 and section 30 of the 1971 Act, obligations in the terms of clause three in the section 52 agreement. They would have been imposed for a planning purpose and would have been valid within the threefold test stated by Lord Scarman in the Newbury case [1981] AC 578-618. The lawfulness of those obligations as conditions could not depend upon whether the Secretary of State in the exercise of his statutory powers of discretion would or would not have upheld them on appeal.
(ii) By choosing to require Mr Elves to enter into the section 52 agreement, in order deliberately to "bypass the Minister", if Mr Elves should consent to enter into the agreement, the Council had taken a course in which there was "a certain lack of attractiveness" but it did not reveal any improper purpose which could vitiate in law the section 52 agreement entered into by Mr Elves. In choosing the route provided by section 52 the Council was not activated by a non planning consideration and the Council was entitled to follow it.
(iii) Since the clause 3 obligations could have been imposed as valid conditions, the issue raised by the Council as to the scope of section 52 did not require to be decided.
By their notice of appeal the plaintiffs contended that the Vice-Chancellor:
(i) was wrong in law because, since the purpose of the Council was deliberately to bypass the jurisdiction of the Secretary of State, the taking of the section 52 covenant from Mr Elves was not within the powers of the Council under section 52 because it was not "for the purpose of restricting or regulating the development or use of the land".
(ii) Wrongly declined to find that the requiring of the section 52 covenant from Mr Elves was unlawful under the Wednesbury principles upon the grounds argued before him: reference was made to cases including Pioneer Aggregates Ltd v Secretary of State [1985] AC 132 and to Tower Hamlets LBC v Chetnik Developments Ltd [1988] AC 961.
By their respondent's notice the Council again contended that the powers granted to a local planning authority under section 52 enabled the authority to enter into a statutory agreement with a land owner the object of which was not attainable by the imposition of a planning condition under section 29 of the 1971 Act and, therefore, a finding of law that a covenant could not be validly imposed by way of condition under section 29 of the Act does not necessarily determine the validity of an agreement imposing that covenant made under section 52 of the Act.
In his submissions in this court, Mr Payton for the plaintiffs supported the grounds of appeal with further reference to authorities including Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1; Padfield v Minister of Agriculture [1968] AC 977, Reg. v Richmond upon Thames LBC, Ex parte McCarthy [1992] 2 AC 48 and Pyx Granite Co. Ltd v Minister of Housing [1958] 1 QB 554.
The essential ground of Mr Payton's argument was that, in exercising its powers under section 52 (1) of the 1971 Act to enter into an agreement "for the purpose of restricting or regulation the development or use of the land, either permanently or during such period as be prescribed by the agreement" the Council must, upon the proper construction of the words in their statutory context, exercise their powers in accordance with...
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