Guildford Rural District Council v Fortescue; Guildford Rural District Council v Penny

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SELLERS
Judgment Date23 Mar 1959
Judgment citation (vLex)[1959] EWCA Civ J0323-6

[1959] EWCA Civ J0323-6

In The Supreme Court of Judicature

Court of Appeal

Before:

The Master of the Rolls

(Lord Evershed)

Lord Justice Sellers and

Lord Justice Ormerod.

Guildford Rural District Council
and
Fortescue: A.J. Hopkinson; K. Carter; R. Godley; G.T. Winson; E. Lees; A. Jeffery; Ivor P. Houlahan; R. Woodcock; N.A. Martin: F.W Peto; N.P. Goddard; Juhl Arnold Ulrich; M.J. Sims; S. Gray: H. H. Baillie; M. Wort: A. Miles; W. Hediger; C.J. Bradley, R.C Rapley; M.J. Cooper; D.C. Willingham
Guildford Rural District Council
and
Jack Spence Penny and Doris Elsie Penny

Mr. R.E. MEGARRY. Q.C. and Mr. BERNARD MARDER (instructed by Messrs. Garber Vowles & Co.) appeared on behalf of the Appellants.

Mr. NIGEL C. BRIDGE (instructed by Messrs. Jaques & Co., Agents for Messrs. Barlow Norris & Jenkins, Guildford, Surrey) appeared on behalf of the Respondents the Guildford Rural District Council.

Mr. J.D. JAMES (instructed by Messrs. Sharpe Pritchard & Co., Agents for Mr. F.H. Busby, Town Clerk, Eastbourne) held a watching brief on behalf of the Eastbourne Corporation.

THE MASTER OF THE ROLLS
1

: These two appeals raise precisely the same questions, namely: first, whether the Justices at Woking had jurisdiction under the Town and Country Planning Act to enquire into and determine whether there had in fact been development on the land owned and occupied by the Appellants, within the meaning of section 12 of the Act; and second, if so, whether they were entitled to conclude, as they did, that there had not been any development. In the circumstances, Mr. Megarry confined himself in argument to the appeal by Mr. and Mrs. Penny, the owners of the land in question; and this Judgment is similarly confined in terms.

2

The facts appear from the Case Stated and may be briefly summarised as follows. The Appellants, Mr. and Mrs. Penny, are the proprietors of acres of land within the jurisdiction of the Respondents, the Guildford Rural District Council, as the appropriate local planning authority. On the 1st July, 1948 - the date of the coming into operation of the Town and Country Planning Act, 1947 - the 1½ acres was being used (as it had been before that date and as it has continued to be used since) as a site for residential caravans. On the 1st July, 1948, the number of such caravans appears to have been 8, but thereafter the number steadily increased. In 1955 and 1956 recourse was had to the powers and jurisdiction of the local planning authority and (on appeal) to the Minister, the result of which was that the Minister permitted 21 caravans to be placed on the 1½ acres. The Appellants, however, were not satisfied with the scope allowed by this determination on the part of the Minister; and it is not now in doubt that, in spite of the time and the trouble taken; we must determine the question before us without regard to what was then done.

3

When the matter came before the Justices, the number of caravans on the site was 27, and the Justices were of opinion that the increase in the number of caravans from 8 to 27 did not, in the circumstances, constitute a material change of use of the land and they accordingly quashed the Council's enforcement notice dated 21st August, 1957.

4

The matter having then been taken, by way of Case Stated, to the Divisional Court, the present Appellants conceded before that Court that its recent decision in the Eastbourne case (reported In 1953 2 Queen's Bench, page 41) must cover this case also, and they submitted accordingly to an Order allowing the Council's appeal and setting aside the Justices' Order. From that Order by the Divisional Court the matter has now come on appeal before this Court.

5

On the first question, that of the jurisdiction of the Justices, we have had the advantage of a full and careful argument by Mr. Megarry. Mr. Bridge, for the local authority, did not desire to contest that point; and in any event the Judgments which we have now delivered in the Eastbourne case have determined that point in the present case in Mr. Megarry's favour. There remains, however, the second question: Were the Justices justified in concluding, as they did, that the increase from 8 to 27 in the number of caravans on this site did not amount to a material change in the user of the land? If it is open to the Justices to decide the question aye or no, then according to the Appellants it...

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23 cases
  • Hartnell v Minister of Housing and Local Government
    • United Kingdom
    • Queen's Bench Division
    • 1 January 1963
  • Callan v Boyle Quarries Ltd
    • Ireland
    • High Court
    • 20 March 2007
    ...57 3 6.2 Intensification of use does not necessarily constitute a material change of use. Guildford Rural District Council v. Fortescue (1959) 2 QB 112, Patterson v. Murphy [1978] ILRM 85, and Butler v. Dublin Corporation [1999] I.R. 565. 58 Keane J. (as he then was), stated in the latter c......
  • Patterson v Murphy
    • Ireland
    • High Court
    • 4 May 1978
    ...been held that an intensification of use may amount to a material change of use (See; Guild for Rural District Council .V. Fortescue (1959) 2 Q.B. 112, 125; and Brooks and Burton Ltd. .v. Environment Secretary, (1977) 1 W.L.R. 1294, 1306). It seems to me that this concept is a correct one......
  • Brooks and Burton Ltd v Secretary of State for the Environment
    • United Kingdom
    • Court of Appeal
    • 28 July 1977
    ...this may be so as a matter of the strict application of the law relating to precedent. In Guildford Rural District Council v. Perry (1959) 2 Queen's Bench 112, Lord Evershed, Master of the Rolls, without deciding the point, expressed the opinion that "mere intensity of use may….affect ......
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