Hall & Company Ltd v Shoreham-by-Sea Urban District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE PEARSON |
| Judgment Date | 26 November 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J1126-2 |
| Docket Number | 1963. H. No. 3595 |
| Court | Court of Appeal |
| Date | 26 November 1963 |
[1963] EWCA Civ J1126-2
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
From: Mr. Justice Glyn-Jones
Mr. DESMON G. F. FRANKS and Mr. NORMAN D. WISE (instructed by Messrs Wilkison Howlett & Moorhouse) appeared on behalf of the Appellants (Plaintiffs).
Mr. C. FRANCIS DEHN (instructed by Messrs Haslewoods Agents for Mr. T, C, Hayward, Clerk of the County Council, Chichestor appeared on behalf of the Repondents (Defendants.)
LORD JUSTIE WILLMER: This is a appeal by the plaintiffs against a judgement of Mr Justice Glyn-Jones given on the the 27th May 1963 whereby he dismissed an action brought by them against the defedant Councils. The Plaitiffs carry on business at premises known as Lennards' Wharf, Shorehad, and are the oweners of a plot of land which it is desired to develop for industial purposes. The defendant County Council is planning authority for the area under the Town and Country Planning Acts, and has delegated certain of its powers to the defendants Urban District Council. By thier statement of claim the plaintiffs claim a declarationthat certain conditions attached to a planning permission granted to them by the defendant Urban Ditrict Council in reapect of proposed development at Lennards Wharf are void for uncertainty and or ultra vires. The learned Judge decided against the plaintiffs' claim and dismissed the action.
Section 16 of the Town and Country Planning Act 1947 provides that an appeal lies to the Minister if an applicant is aggrieved by conditions imposed by a local planning authority in respect of planning permission. Notwithstanding ths existence of this right of appeal, however, it is not contested that the alternative remedy of proceeding for a declaration in the High Court is open to the plaintiffs.
The plaintiffs' premises are situated in astrip of land which lies between the main Brighten road on the north and the estuary of the River Adur on the south. The plaintiffs are importors of sand and gravel, which is brought by sea and unloaded at their wharf on the river bank. Part of the land which they occupy has not yet been developed, and in respect of this undeveloped plot the plaintiffs now seek planning permission for (a) the erection of a concrete aggregate grading plant for seaborne aggregates, (b) the erection of a ready mixed concrete plant, and (c) the provision of a further access to the main Brighton road. The adjoining land to the eastward of the plaintiffs' land is occupied and used by the British Transport Commission; that on the west side belongs to an organisation called Southern Wharves, but is at present undeveloped.
The whole strip of land lying between the main road and the river is, however, scheduled for industrial development. It Is accepted that astrip of land along the northern edge of the plaintiffs' land fronting the Brighton road will be required at some future date for a road widening scheme.
There is no doubt that under section 12 of the Town and Country Planning Act 1947, the plaintiffs require planning permission for the proposed deve lopment of their land and for the creation of the proposed new means of access to the main road. The powers of the planning authority are defined by section 14 ofthe Act, which provides as follows: "(1) Subject to the provisions of this and the next following section, where application is made to the local planning authority for permission to develop land, that authority may grant permission either unconditionally or subject to such conditions as they think fit, or may refuse permission;and in dealing with any such application the local planning authority shall have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations. (2) Without prejudice to the generality of the foregoing subsection, conditions may be imposed on the grant of permission to develop land thereunder — (a) for regulatlng the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission; (b) for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the expiration of a specified period, and the carrying out of any works required for the reinstatement of land at the expiration of that period; and any permission granted subject to any such condition as Is mentioned in paragraph (b) of this subsection is in this Act referred to as permission granted for a limited period only".
The plaintiffs obtained from the defendant Urban District Council planning permission for their proposed development in terms of a document issued to them and dated the 12th July 1960. The permission was expressed to be subject to certalu conditions. Condition 1 refused permission for the development of the strip of land required for the proposed road widening scheme along the northern edge of the plaintiffs' land. Condition 2 required that a level landing should be constructed at the point of the proposed access to the main road. No question arises as to either of these two conditions. The dispute has arisen over conditions 3 and 4which are in the following terms; "(3) The applicants shall construct an ancillary road over the entire frontage of the site at their own expense, as and when required by the local planning authority, and shall give right of passage over it to and from such ancillary roads as may be constructed on the adjoining land. The ancillary road shall consist of a carriageway 20 ft, wide with a margin 3 ft. vide on each side. (4) The new access shall be temporary for a period of five yeavs initially, but the local planning authority will not enforce its closure until the ancillary roads referred to in condition 3 shall have been constructed and alternative access to the main road is available within 150 yards of the temporary access". The reasons for the imposition of these conditions were exprossed to be as follows: "3 & 4. The local planning authority are of the opinion that in the interests of highway safety an ancillary road should be constructed along this frontage but are prepared to allow the access now proposed as a temporary expedient pending the construction of the said ancillary road".
It is common ground that the main Brighton road carries a considerable volume of traffic. It is not disputed that the respective Councils, as planning authorities, are rightly concerned as to the effect of the proposed development, and of the possible future development of land further west, on the traffic conditions on an already overloaded road. Nor is it disputed that the provision of an ancillary or service road giving access to the main road at only a limited number of points is, from a planning point of view, an admirable way to avoid unnecessary further congestion on the main road and to minimise the risk of traffic accidents thereon.
It is contended, however, that the defendants are exceeding their powers in seeking to impose these conditions on the plaintiffS. The effect, it is said, is to require the plaintiffs: to build the ancillary road at their own expense and to give what will virtually amount to a public right of passage over it, whereas the proper course would be for the appropriate Council, as the highway authority, to exercise its powers under the Highways Act 1559, acquire the landby compulsory purchase, and it self build the necessary ancillary or service road to be dedicated to the public. The plaintiffs contend that the conditions sought to be imposed by the defendants are ultra vires; alternatively, it is said, the conditions are void for uncertainty. In either case the court is invited to pronounce the conditions invalid.
The defendants deny that the conditions are either ultra vires or void for uncertainty. In the alternative they say that, if there is any uncertainty in the conditions, certain phrases contained therein are severable from the rest; and the court is invited, if necessary, to delete any or all of these phrases and to pronounce In favour of the conditions as so amended. A further question is raised by the defendants as to what is the effect if the court pronounces against the conditions. Does the permission lapse altogether, as the defendants would contend, or is it to be regarded as having been granted without either of the offending conditions attached?
The learned judge decided that the conditions objected to were neither ultra vires nor void for uncertainty. He therefore pronounced against the plaintiffs' claim, and the further questions as to severability and as to the effect on the planning permission if the conditions were held bad did not strictly arise. In a supplementary judgment, however, delivered at the request of the parties, he expressed the view, first, that no part of the conditions could be severed from the rest without destroying the whole effect of the conditions, and secondly, that If the conditions were held to be invalid, the effect must be that the whole permission must lapse.
It will be convenient to deal first with the allegation of uncertainty. The language of conditions 3 and 4 is certainly inelegant, and no doubt somewhat obscure. But I do not think that the words used by a local authority In imposing conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman. It seems to me that conditions imposed by a localauthority, like bye-laws, should be...
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...with situations in which planning and other consents had been granted for ulterior, and therefore impermissible, motives. Hall and Co. Ltd. v. Shoreham-by-Sea UPC (1964) 1 WLR 240 (CA) is a well known example, to which Lloyd LJ referred at length in Bradford. In granting permission for a h......
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