James v Minister of Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL |
| Judgment Date | 08 July 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0708-5 |
| Court | Court of Appeal |
| Date | 08 July 1965 |
[1965] EWCA Civ J0708-5
In The Supreme Court of Judicature
Court of Appeal
From the Divieional Court
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
MR MICHAEL ALBERY, Q. C. and MR B. A. MARDER (instructed by Messrs Penningtons and Lewis & Lewis, Agents for Messrs G. Roger Prys. & Co., Rhyl) appeared as Counsel for the Appellant.
MR NIGEL BRIDGE (instructed by the Solicitor, Ministry of Housing and Local Government) appeared as Counsel for the First Respondents.
MR HYWEL ap ROBERT (instructed by Messrs Sharpe Pritchard & Co., Agents for the Clerk to the Breconshire County Council) appeared as Counsel for the Second Respondents.
Llangorse Lake lies in the Brecon National park. It is six miles round and is a place of great natural beauty. The land which edges the lake is mostly in private ownership. But the public can get to the lake over Llangorse Common. Next to the Common Mr James owns about acres of land. He has turned it into a pleasure site called the Royal Oak Camping Site. He has a cafe there, a boat hut, and a changing hut for swimmers. He has also one permanent caravan there. He wishes to station many more caravans there, especially in the summer season. But the local authorities object. They say that a caravan camp would be an eye-sore and spoil the landscape. Time after time Mr James has sought to use it for more than one caravan. Time after time the authorities have tried to stop him. The planning authority on 6th March, 1963, served an enforcement notice on him. The question is whether it is valid or not. There is a long history which I must recount.
On 24th September, 1956, Mr James applied to the planning authority for permission to develop the site for the purpose of "cafe, pleasure ground and camping site". He attached a pian which showed the whole site of 3½ acres with a site entrance to it. Inside this site there was a small rectangular area marked "permanent caravan"; and also a "camping site" of about ¾ acre bordered with shrubs.
On 29th December, 1956, the planning authority gave permission for the proposed development, subject to the condition that, with the exception of the permanent caravan, there should be no caravans on the whole site, except on the "camping site", and they should not exceed 12; and that the permanent caravan should be kept in a tidy condition. Mr James was aggrieved by these conditions and on 25th January, 1957, he appealed to the Minister. He lived to regret his appeal. He fared far worse, for the Minister took away a great deal. On 21st April, 1958, the Minister refused permission for the establishment of a caravan camp on the land and did not evenallow 12 caravans there. All that the Minister permitted was the one permanent caravan to remain there. He preserved the condition which said that the permanent caravan was to be kept in a tidy condition.
Mr James ignored the Minister's decision. In the summer months in and after 1959 there were many caravans on the site, far more than the one permanent caravan. In particular in and after 9th March, 1960, he was using the whole site as a caravan site. So much so that on 29th August, 1960, when the Caravan Sites Act, 1960, came into operation, it was admittedly an "existing site".
On 10th October, 1960, within the two months allowed by the 1960 Act, Mr James applied to the District Council for a site licence. He asked for a licence for 40 permanent residential caravans on the site which he put (with some exaggeration) at 5 acres. He claimed also that he had "existing use rights" as it had been in use as a camping and caravan site for 10 years. The District Council did not grant that application.
On 30th November, 1960, Mr James applied to the planning authority for permission to develop the land for camping and caravans. No such permission was given.
On 28th March, 1961, Mr James (outside the two months allowed by the 1960 Act) applied to the District Council again for a site licence. He asked this time for a licence for one permanent residential caravan and tor 25 seasonal caravans from 1st March to 30th September in every year. He claimed also that he bad "existing use rights" as it had been in existence 11 years and paid rates as a caravan site.
On 5th April, 1961, the District Council gave Mr James a site licence for one caravan. They allowed the land to be used as a caravan site subject to the condition that the site was licensed for the parking of one caravan only in accordance with the planning consent already issued, and it could be occupied from 1st April to 31st October in each year.
Mr James did not confine himself to the one caravan. He used site in 1961 and 1962 for several caravans. On 3rd October, 1962, he was summoned before the Magistrates for failing to comply with the conditions of the site licence of 5th April, 1961, contrary to Section 9 of the 1960 Act. The Magistrates dismissed the summons but stated a case for the Divisional Court. On 20th March, 1963, the Divisional Court sent the case back to the Magistrates with a direction to convict him. That case stands adjourned pending the decision of this appeal.
Meanwhile on 6th March, 1963, the planning authority (being anxious to act before Mr James acquired four-year rights) served an enforcement notice on Mr James. It was in these words: "Whereas land adjacent to Llangorse Lake and Llangorse Common… known as the Royal Oak Cafe and Camping Ground, has been used for the stationing of three(3) caravans in excess of the permitted number, namely one(1); And whereas the afore-mentioned change of use has bean carried out without the grant of planning permission under Part III of the said Act (the Town Planning Act, 1947): Now therefore….the local planning authority under Sections 23 and 24 of the said Act, do hereby give you notice to remove from the said land all the caravans which are not the subject of planning permission and cease using the said land for the stationing of more than one caravan".
On 2nd April, 1963, Mr James appealed to the Minister against the enforcement order. He asked the Minister to say it was bad. In October and December 1963 and January 1964 there was a local inquiry for six days by an Inspector. On 8th April, 1964, the Inspector made his report. On 13th August, 1964, the Minister dismissed the appeal. Mr James appealed to the Divisional Court, who on 19th January 1965 sent it back to the Minister on one point, namely, whether there had been a material change of use. Mr James appeals to this Court.
On the appeal to this Court we were engulfed in a whole host of technical points. It is an unfortunate feature of thelegislation about caravans that it is exceedingly complicated. It is very easy to get lost in the maze of procedure which it lays down. Even the most diligent of planning authorities must be discouraged from taking proceedings against infringers. There seems to be no end to the obstacles which the ingenuity of lawyers can place in their way.
I. " Deemed Permission".
Mr James claimed that he had "deemed permission" under Section 17 of the 1960 Act to use the site as a caravan site. He based this contention on the fact that on 10th October, 1960 (within the prescribed two months) he made an application for a site licence, and the local authority did not take the necessary measures (within the prescribed 6 months) to counter it. This contention involved us in a consideration of three separate points: (i) Abandonment. The Minister said that the first application of 10th October, 1960, was abandoned by Mr James; and that it was replaced by the second application of 28th March, 1961, I do not think there was any evidence of abandonment by Mr James. On 21st December, 1960, the surveyor to the District Council told Mr James that his first application could not be entertained. So Mr James put in his second application. But that did not mean that he abandoned the first. He was quite entitled to have two strings to his bow, and to put in a second application in case there was anything wrong with the first.
ii) The express grant of planning permission. The Minister said that Mr James had already been given planning permission on 21st April, 1958, for the use of the land as a caravam site (for one pernanent caravan): and that, on this account, Section 17 was expressly excluded by the last half of Section 17(1). Mr James replied by saying that the grant of 21st April, 1958, was void because it depended on the grant of 29th December, 1956; and that grant was void and a nullity because it was not given within two months after the application of 24th September, 1956. For this proposition he relied on the dictum of Lord Justice Salmon in Edwick's case, 1962, 1 Queen's Bench, 229 at p. 236. Thence the decision of the Minister on 21et April, 1958, was a nullity also. I think that the planning permission given to Mr James was perfectly valid and was not a nullity. I cannot agree with Lord Justice Salmon that the provisions of Article 5(8) of the General Development Order (as to time) are mandatory. I think they are directory only. The grant or refusal of permission after two months is not void, but at most voidable. If a planning authority allow more than two months to go by, and then give permission, with or without conditions, the permission is good. At any rate it is good, if it is accepted and acted upon. Or if an appeal is made against it, for it is then too late to avoid it. If a planning authority allow more than two months to go by, and then refuse permission, the party aggrieved can appeal against the refusal. Alternatively he can treat the failure to determine within two months as a refusal and appeal on that ground. If...
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