Jones v Swansea City Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE SLADE,LORD JUSTICE NOURSE,LORD JUSTICE STUART-SMITH
Judgment Date03 March 1989
Judgment citation (vLex)[1989] EWCA Civ J0303-6
Docket Number89/0271
CourtCourt of Appeal (Civil Division)
Date03 March 1989
Margaret Elizabeth Jones
Appellant (Plaintiff)
and
Swansea City Council
Respondents (Defendants)

[1989] EWCA Civ J0303-6

Before:-

Lord Justice Slade

Lord Justice Nourse

and

Lord Justice Stuart-Smith

89/0271

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (SWANSEA D.R.) ROCH J.

Royal Courts of Justice

MR. J. MACDONALD Q.C. and MR. P. REES (instructed by Messrs Robertsons, Cardiff) appeared on behalf of the Appellant (Plaintiff)

MR. J. LINDSAY Q.C. and MR. K. THOMAS (instructed by A.K.B.Boatswain Esq.) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE SLADE
1

This is an appeal by Mrs. Margaret Elizabeth Jones from a judgment of Roch J. given at the trial of an action on 4th February 1988. By his decision he dismissed her claim as plaintiff against the Swansea City Council ("the Council"), the defendant in the action and respondent to this appeal. The Council is the owner of freehold premises known as 88/89 High Street Swansea ("the premises"). As at 28th June 1979 the plaintiff held the premises under an agreement for a lease made between herself and the Council, which precluded their use for any purpose "other than a retail shop and/or offices". On that date the Council resolved that consent for a change in the use to be made of the premises to that of a licensed club should not be granted. In the action the plaintiff claimed that the resolution of 28th June 1979 caused her financial loss and sought compensation from the Council, relying on two causes of action, namely the tort of negligence and the tort of misfeasance in a public office. The learned judge rejected her claim under both these heads. She does not challenge his decision on the issue of negligence, but she asserts that he should have found that the Council had been guilty of the tort of misfeasance in public office, on the grounds that it had refused consent maliciously with the object of injuring her husband and herself.

2

At pages 5A-19H of the transcript of his judgment, the learned judge set out with admirable clarity the background and history of the dispute, and also made certain findings of fact. Mr. John Macdonald Q.C., on behalf of the plaintiff, has told us that he accepts this part of the judgment as containing a fair and accurate history of the matter and that he is content with the findings of fact there set out. The greater part of the summary of the facts which follows is accordingly derived more or less word for word, though with some omissions, from these pages of the judgment. However, there are also incorporated some later passages in which the learned judge summarised the course of certain meetings of the Council or its Committees.

3

The plaintiff is married to Mr. Benjamin Jones, who was himself a plaintiff in the action until Roch J. ordered his removal from the action for reasons given in a judgment of 2nd December 1987. Mr. Jones and the plaintiff now have a grown up family. She herself has for some considerable time run a General Store comprising a Newsagents, Grocers and Off-Licence at premises in Swansea. In the early 1970s Mr. Jones became concerned with her in two businesses. However, these did not flourish and during the course of 1979 both the companies through which they operated went into liquidation.

4

The political background

5

Neither the plaintiff nor Mr. Jones had been concerned in politics prior to the Local Government elections in May 1976. Before that date the Council had been controlled by the Labour Group of Councillors for some forty years.

6

Shortly before those elections allegations of corruption in its affairs had been made which involved the Leader of the Labour Group at that time, Mr. Gerald Murphy, and certain officers of the Council. He was one of three Councillors who represented the Landore Ward.

7

The Local Government election for the Council held in May 1976 followed a bitter election campaign. It resulted in the Labour Group being reduced to only eight Councillors out of a total of fifty-one. Following that election, a new group of councillors, calling themselves The Ratepayers Party, had an overall majority. Mr. Jones was one of the three new Ratepayer Councillors who replaced Mr. Gerald Murphy and two others as representatives of the Landore Ward. He had taken a leading part in the campaign, making available money, office accommodation and secretarial facilities to the Ratepayers Party.

8

Between 1976 and 1979 the atmosphere in the Council was an unhappy one. In 1976 or 1977 Mr. Murphy was convicted of corruption in connection with his conduct as a Councillor and sentenced to a term of imprisonment. Then, in 1978 or 1979, the Leader of the Ratepayers Group of Councillors, the then Leader of the Council, was himself convicted of corruption in regard to his behaviour as a Councillor and sentenced to a term of imprisonment.

9

A further election in May 1979 resulted in the Labour Party once again having a comfortable majority on the Council. Mr. Jones, and many of the Ratepayer Councillors who had become members of the Council in May 1976, did not stand in that election. Many others were defeated by Labour candidates. The then Leader of the Labour Group on the Council was Councillor Tysell Lewis, who has played a prominent part in these proceedings. He became the Leader of the Council.

10

The plaintiff's interest in the premises

11

Meantime, against this political background, the sequence of events which led to this case began in 1977. At that time Mr. Jones and the plaintiff were running their two businesses from premises in Swansea which, for various reasons, were regarded as unsatisfactory. They therefore decided to look for new premises.

12

Having noticed a vacant plot in High Street, Swansea, not far away, Mr. Jones ascertained that it was owned by the Council, and made an enquiry of the City Estate Agent, Mr. B.H. Morris ("Mr. Morris") stating that he was interested in taking a lease of it. On 14th November 1977 the Planning Committee and the Policy and Resources Committee of the Council both resolved that tenders for the lease of this vacant plot (the premises) be invited by public advertisement. On 24th November 1977 the full Council confirmed the recommendations of those Committees.

13

On 10th March 1978, the premises were advertised under the heading "Development Site at High Streeet with permission for erection of a shop or an office and showroom". The tender document made it clear that disposal of the site was to be by way of a lease for 99 years, that the lease would contain the usual terms appropriate to a long term lease for a commercial site and would include a covenant that the lessor's consent would be required for alterations, and that the user clause would accord with the use approved for planning purposes at the date on which possession of the site was granted.

14

On 23rd February 1978, the Council granted itself deemed planning permission in respect of the premises for the erection of offices and showrooms. On 4th May 1978, the plaintiff submitted a tender, which was the only one submitted. On 14th June 1978, the Council's Estates Committee resolved that the tender be accepted. On 29th June 1978, the full Council confirmed this resolution. On 30th June 1978, Mr. Morris communicated this decision to the plaintiff. On 22nd Auguat 1978, her then solicitors approved the draft lease, and sent a cheque to the Council for £450 by way of deposit, being one year's initial ground rent. In September 1978, she took possession of the site and work began on it. On 13th October 1978, Mr. Morris wrote to her architect informing him that the shown on the plans submitted by him to the Council were acceptable to it, that building regulations approval had been granted and that planning approval from the full Council at its meeting on 26th October 1978 could be anticipated. Those plans showed the construction of a shop and offices on the site. Subsequently, the full Council did give their approval.

15

Towards the end of 1978, Mr. Jones had the idea of changing the use of the premises to that of a club, with the club being on the first floor. As a result, on 2nd January 1979, the plaintiff's architect, Mr. Hedley Rees ("Mr. Rees") submitted a planning application to the Council for permission to use the premises as a club on the first floor, and for a cellar on the ground floor. Mr. Morris acknowledged receipt of a notice in respect of the application for change of use on 15th January 1979 and pointed out that, in addition to obtaining planning permission for the proposed use as a social club, the plaintiff would also need the consent of the Council through its Estates Committee, to the necessary change in the user clause in the agreement for the lease and in the lease itself. At this time the agreement for the lease had not yet actually been signed.

16

On 13th February 1979, Mr. Rees submitted a request for the Council's permission to change the use to which the premises should be put. On 27th February 1979, the plaintiff and Mr. Jones met Mr. Morris and asked what the procedure would be. He told them that the decision would be that of the members of the Council and that they had three alternative choices, namely (1) rejection, which would leave the plaintiff and Mr. Jones to continue using the building with its existing approved use; (2) approval, in which case an increased rent would have to be negotiated to reflect the use of the premises as a club; or (3) deferment until after planning approval had been granted. The plaintiff and Mr. Jones agreed that an extra rent should be payable and accepted Mr. Morris's suggestion that they should employ an...

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