Hartnell v Minister of Housing and Local Government
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Evershed,Lord Hodson,Lord Guest,Lord Wilberforce |
| Judgment Date | 03 February 1965 |
| Judgment citation (vLex) | [1965] UKHL J0203-1 |
| Date | 03 February 1965 |
| Court | House of Lords |
[1965] UKHL J0203-1
Lord Reid
Lord Evershed
Lord Hodson
Lord Guest
Lord Wilberforce
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Minister of Housing and Local Government against Hartnell, that the Committee had heard Counsel, as well on Tuesday the 1st, as on Wednesday the 2d, Thursday the 3d, Monday the 7th and Tuesday the 8th, days of December last, upon the Petition and Appeal of the Minister of Housing and Local Government, of Whitehall, London, S.W.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 19th of December 1963, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Wyndham Henry Hartnell, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 19th day of December 1963, so far as complained of in the Said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This case arises out of the present difficulty in obtaining planning permission for enough caravan sites to meet current demand. It appears that the value to the site owner of permission may amount to as much as £250 per caravan. In this case the Respondent in 1960 sought permission to station 94 caravans in a field of 4·7 acres near Battle. Battle Rural District Council, to whom planning powers have been delegated, gave permission to station six caravans on an area of ·78 acres at the north end of the field. The Respondent appealed to the Minister but, after an inquiry held by his Inspector, he confirmed the decision of the planning authority. The Respondent then raised proceedings in the High Court to quash the Minister's Order. Sachs J. quashed the Order and his decision was affirmed by the Court of Appeal.
What the Respondent seeks to establish in this action is his right to station on that area of ·78 acres a number of caravans limited only by what one may broadly call Public Health considerations. If he is successful that number will have to be determined later but he estimates that it will be at least fifteen. The form of the present Order gives rise to certain difficulties but it will I think make for clarity if I postpone consideration of the form of the Order and treat it for the moment as determining that that area of ·78 acres is an "existing caravan site" and that the Respondent is permitted to station not more than six caravans on it.
The case turns on the proper construction of section 17 of the Caravan Sites and Control of Development Act 1960. In view of its obscurity I find it necessary first to consider what the position was when it was passed, and, as it brings in provisions of the Town and Country Planning Act 1947, it is necessary to consider the position when that Act was passed. Neglecting earlier planning legislation on which neither party relies, the position then was that an owner was entitled to use his land for any purpose he chose and to change that use as often as he chose so long as he did not interfere with his neighbours' rights or infringe Public Health and other statutory regulations. Speaking broadly, because many of its provisions are very complicated, the 1947 Act did not seek to interfere with existing use of land but it took away the owner's right to make any material change of use and granted a measure of compensation for this. And then it required any owner who wished to change the use of his land to seek planning permission and pay for that permission if he got it.
So any owner who was then using his land as a caravan site could continue to do so. And moreover he could increase the number of caravans so far as Public Health and other such considerations permitted. I need not consider whether an inordinate increase could be prevented as being a material change of use. But if the owner wished to use as a caravan site land not previously used for that purpose he had to seek planning permission. Then the planning authority could either grant or refuse permission or grant permission subject to conditions. The conditions must not be unreasonable, but, if planning considerations led to the imposition of conditions so onerous that it was not worth while to proceed, the owner could not complain, either before or after the amending legislation which abolished the obligation to pay for permission.
If such an owner began to use his land as a caravan site without having obtained planning permission, proceedings could be taken to stop him. But if he used the site for that new purpose for four years without being stopped he could not thereafter be prevented from continuing that use. And it was not argued that he was then limited to the number of caravans on the site during those four years. He could increase the number in the same way as the owner with pre-1948 use could.
So when the 1960 Act was passed there were four classes of existing use. First there was the man who had used his land as a caravan site since a date before the passing of the 1947 Act. Secondly there was the man who had thereafter applied for and obtained planning permission with or without conditions. Thirdly there was the man with four years uninterrupted user after 1947. And fourthly there was the man who without permission had begun to use his land as a caravan site less than four years before the passing of the 1960 Act. But the rights of the first three classes of owners were not unqualified. Section 26 of the 1947 Act authorised the planning authority to order the discontinuance of any existing use or to impose such conditions on its continuance as might be specified: but then the owner was entitled to receive compensation. So, if before 1960 the planning authority had wished to limit to six the number of caravans which the Respondent was entitled to station on his existing caravan site, they would have had to make an order under section 26 imposing that condition and to pay compensation. The question in this case is whether the 1960 Act entitles them to impose that restriction without paying compensation.
The 1960 Act forbade the use of any land as a caravan site unless the owner obtained a site licence from the local authority. That applied both to existing sites and to new sites and the local authority is entitled by section 5 to attach conditions including a condition limiting the number of caravans on the site. But any such condition would not be based on planning but on public health and similar considerations, and it was not disputed that in the present case the local authority acting under section 5 would have to allow considerably more than 6 caravans on this site. As I have said the Respondent estimates that the number would probably exceed 15. The Respondent does not and could not object to a proper limitation under section 5, and there is no question of any compensation being due in respect of a limitation of that kind. What the Respondent denies is the right of the planning authority to impose this overriding limitation to 6 caravans without paying compensation.
No one can be given a site licence unless he has planning permission. An owner seeking a licence for a new site must first apply to the planning authority in the ordinary way and in such a case that authority has all the powers given by the 1947 Act: it can refuse permission or it can attach conditions so onerous that it is not worth while to proceed, and the owner cannot complain. But the owner of an existing site as defined in section 13 is treated differently. He applies directly to the local authority for a site licence under section 17, and the local authority then transmit the application to the planning authority. In that case admittedly the planning authority do not have all the powers which they have on an ordinary application for planning permission and the question is to what extent those ordinary powers have been cut down. Surprisingly there is no express provision in the 1960 Act dealing with this but the Appellant admits that there is to some extent a clear implication arising from the provisions of section 17(3). I need not set out the rather complicated chain of reasoning which leads to this result because the Appellant admits that, if the planning authority do not take steps to end the use of the existing site as a caravan site by enforcement or by discontinuance proceedings, as the case may be, they cannot refuse permission to an existing site owner and they cannot impose conditions so onerous as in effect to amount to a refusal even where either course would be well justified on planning grounds. The question in this case is whether they can under section 17 impose conditions which are not so onerous as in effect to amount to a refusal but are so onerous as materially to cut down the pre-existing right of the existing site owner. In effect the Appellant's argument is that, while section 17 does not enable the planning authority to take away the whole value of the existing site owner's right—that must be...
To continue reading
Request your trial
-
Dunnes Stores v Dublin City Council
...respectfully considers the reliance placed by the Council on such decisions as Hartnell v. Minister of Housing and Local Government [1965] A.C. 1134, Hughes v. Doncaster Metropolitan Borough Council [1990] UKHL J1213-2 and, for example, O'Hara and McGuinness v. An Bord Pleanála (Unreported,......
- Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan
-
Russell v Fanning
...APPEAL TRIBUNAL EX PARTE SWIFT 1962 2QB 647 HAMPSTEAD GARDEN SUBURB TRUST LTD, IN RE 1962 CH 806 MIN OF HOUSING & LOCAL GOVT V HARTNELL 1965 AC 1134 BARENTZ V WHITING 1965 1 WLR 433 ROLLEY V MURPHY 1964 2 QB 43 BROWN V DYERSON 1969 1 QB 45 KELLY IRISH CONSTITUTION 2ED P28 MURPHY V AG 1982 I......
-
Malloch v Aberdeen Corporation
...v. Postmaster GeneralELR,[1950] Ch. 435; Starey v. GrahamELR, [1899] 1 Q.B. 406;Hartnell v. Minister of Housing and Local GovernmentELR,[1965] A.C. 1134; Westminster Bank Ltd. v. Minister of Housing and Local GovernmentELR, [1971] A.C. 508; Colonial Sugar Refining Co. Ltd. v. Melbourne Harb......