International Traders Ferry Ltd v Adur District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE LATHAM,MR JUSTICE EADY |
| Judgment Date | 26 February 2004 |
| Neutral Citation | [2004] EWCA Civ 288 |
| Docket Number | C3/2003/1555 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2004 |
[2004] EWCA Civ 288
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Latham
Mr Justice Eady
C3/2003/1555
MR ALUN ALESBURY (instructed by Messrs Willans, Gloucestershire GL50 1RH) appeared on behalf of the Appellant
MR DAVID HOLGATE QC AND MR CHARLEY MYNORS (instructed by Barlow Lyde & Gilbert, London EC3A 7NJ) appeared on behalf of the Respondent
(Approved by the Court)
Thursday, 25 February 2004
This is an appeal against a decision of the Lands Tribunal, George Bartlett Esq QC President, dated 13 June 2003. The Tribunal considered a reference by International Ferry Traders Ltd ("ITF") dated 10 April 2000 seeking compensation under section 186(2) of the Town and Country Planning Act 1990 ("the 1990 Act") in respect of a stop notice served by the Adur District Council ("the Council") on 1 February 1995 along with an enforcement notice which had been quashed on appeal.
The enforcement notice and stop notice related to land at Shoreham Harbour, West Sussex in the ownership of the Shoreham Port Authority ("SPA") . The site had formerly been occupied by a power station. In 1994 and 1995 ITF used ground on the site as a holding area and for loading onto ships animals destined for France. The trade in live animals was a controversial activity at the time and subsequently. Other parts of the site were used by other persons.
The enforcement notice under section 172 of the 1990 Act related to the whole of the site known as the Brighton "B" Power Station site and to further land within the port. It required the cessation of:
"The use of the Quays for the docking of ships and the loading and unloading of cargoes and of the open land on the site for the movement of vehicles and for the temporary storage of cargo and materials and the use of any buildings or land in support of all these functions."
The stop notice served under section 183 of the 1990 Act, a draconian step, submits Mr Aylesbury on behalf of ITF, prohibited these operations.
By virtue of section 186(1) of the 1990 Act, compensation may be payable in respect of a prohibition contained in the stop notice if certain requirements are satisfied, including that the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 174(2) of the Act. The enforcement notice in this case was quashed on ground (c), namely that the matters stated in the notice did not constitute a breach of planning control. Section 186(2) provides, insofar as is material:
"A person who, when the stop notice is first served, has an interest in or occupies the land to which the notice relates shall be entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice…"
Section 186(3) provides:
"A claim for compensation under this section shall be made to the local planning authority within the prescribed time and in the prescribed manner".
Under Regulation 12 of the Town and Country Planning (General) Regulations 1992 ("the 1992 Regulations") a claim for compensation under the section must be in writing and must be served on the authority by delivery or by post within 12 months of the date of the decision in respect of which the claim is made or such longer period as the Secretary of State may allow.
Both ITF and SPA appealed against the enforcement notice. Following a local public inquiry held in January and February 1997 the Secretary of State accepted a recommendation of the inspector who conducted the inquiry that the appeal should be allowed on ground (c) . On 28 January 1998, the Secretary of State quashed the enforcement notice. That decision was itself quashed in the High Court but restored on appeal to this court on 23 July 1999.
ITF relied on a letter of 25 February 1998 as a claim for compensation within the meaning of section 186 and Regulation 12. An extension of time was later, on 21 January 2000, sought from the Secretary of State but was refused.
The President of the Tribunal ordered that the following matters be determined as preliminary issues:
"(a) whether or not the claimant is a person entitled by section 186(2) of the 1990 Act to be compensated in respect of the stop notice issued by the authority on 1 February 1995 relating to land and property known as the Brighton B Power Station Site at Shoreham-by-Sea, West Sussex;
(b) whether or not the letter of 25 February 1998 to the authority from the solicitors acting for the claimant constituted a claim for the purposes of regulation 12 of the 1992 Regulations and section 186 of the 1990 Act."
The President also made an order for the lodging and exchange of witness statements. Neither party complied with the time limit laid down but, well in advance of the hearing, the Council lodged a witness statement. None was lodged on behalf of ITF. Shortly before the date first fixed for the hearing in February 2003 consultants on behalf of ITF requested an adjournment. The hearing was adjourned until 10 April 2003 without objection from the Council. On the morning of the hearing, a representative of the consultants telephoned the Tribunal to say that he was ill and could not attend. Mr WJ Ford, a director of ITF, was given leave to appear on the company's behalf. He requested an adjournment but, unsurprisingly in the circumstances, the application was refused. Evidence from Mr Ford was not permitted, an order having been made on 28 January 2002 debarring the calling of evidence where no witness statement had been lodged.
The first preliminary issue turns on whether on the date on which the stop notice was served, 1 February 1995, ITF had an interest in or occupied the land to which the notice related.
The evidence before the Tribunal was the witness statement on behalf of the Council and the bundle of documents exhibited with it. Reference was also made to the inspector's report at the local public inquiry. No narrative evidence was available from ITF explaining their activities on site. The inspector at the local public inquiry commented in his report that "the evidential basis offered in support of the ITF claim is very limited".
The inspector's findings in relation to the use of the site had included a finding that there was an area "used for the export of livestock, in association with the access coloured yellow leading to turning basin where cargo was unloaded. Includes Howard's Timber Shed occupied as offices".
It was found by the Tribunal that the vessel used by ITF tied up at the quayside adjacent to the turning basin, was stern loaded there and that the transhipment of the cargo took place through the land to the west of the turning basin. It was found that on one occasion in March 1995, ITF's chartered vessel was displaced from its berth on the inner lay-by because SPA had told them that the berth was required for another vessel. The harbour master gave instructions that the vessel should be moored at a different wharf. It was found that ITF stored furniture and other office equipment in the Howarth shed, and used it as an office. ITF had erected security fencing at the site and it was in place on the relevant date.
For ITF, Mr Aylesbury relies on two licences which SPA had issued to the company. The first was stated to be for the period 1 November 1994 to 31 October 1994, and licensed the company:
"(i) to discharge and load vessels at the Wharves which are owned or under the control of the Port Authority and to make use of Transit Areas adjacent to those Wharves for the temporary storage of goods in transit;
(ii) to make use of the Transit Sheds owned or under the control of the Port Authority for the sorting and examination of goods in transit discharged or loaded at the adjacent Wharves;
(iii) to use the Port roads on foot and by vehicle for and in connection with the foregoing purposes."
The licence was subject to a number of conditions controlling the rights of the claimant. They included:
"1. Vessels will be berthed at the Port Authority's Wharves only as directed by the Harbour Master.
2. Space in the Port Authority's Transit Sheds and Transit Areas will be subject to control by the Harbour Master.
3. The licensee undertakes:-
(a) to pay whatever fees, rates, rents and charges may be authorised by the Port Authority from time to time for the use of the Wharves Transit Areas or Transit Sheds.
(b) to observe the conditions from time to time stipulated by the Port Authority for the use of the Wharves, Transit Areas, Port roads and Transit Sheds…
(g) to comply with the Port Authority's Byelaws in force from time to time, with all directions made by the Harbour Master acting thereunder or in accordance with his statutory powers and with all regulations made by the Port Authority with respect to Port roads.
(h) to remove goods from the Wharves, Transit Areas and Transit Sheds if directed to do so by the Harbour Master;
(i) to obtain the Port Authority's consent to the type of handling equipment to be used on the Wharves and Transit Sheds and to comply with any instructions of the Harbour Master in respect of the use of such equipment.
5. The Port Authority reserves the right to remove and store elsewhere any goods placed on its Wharves and Transit Areas or in the Transit Sheds should the Licensee fail to do so within a reasonable time of notice being given by the Harbour Master and to recover the cost of such removal and...
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