Miller (T. A.) Ltd v Minister of Housing and Local Government

JurisdictionEngland & Wales
Judgment Date05 February 1968
Judgment citation (vLex)[1968] EWCA Civ J0205-3
CourtCourt of Appeal (Civil Division)
Date05 February 1968

[1968] EWCA Civ J0205-3

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From the Divisional Court, Queen's Bench Division


The Master of the Rolls (Lord Denning)

Lord Justice Danckwerts and

Lord Justice Edmund Davies

T. A. Miller Limited
The Minister of Housing and Local Government and another

MR GEORGE DOBRY (instructed by Messrs Bell & Sherrard, Kingston-upon-Thames) appeared as Counsel for the Appellants.

MR NIGEL BRIDGE (instructed by The Solicitor, Ministry of Housing and Local Government) appeared as Counsel for the First Responded.

The Second Respondent was not represented


THE MASTEROF THE ROLLS: we need not trouble you, Mr Bridge.


This case concerns an area of land called Burnt Common Nurseries at Send near V.'oking. For many years from 1953 onwards this area was occupied by a firm of nurserymen called Fogwills Ltd. They used it as a nursery for producing seeds and plants. They sold their "home produced" seeds and plants. They also sold "imported" seeds and plants and other articles. They bought these "imported" goods from outside suppliers and resold them. From 1946 onwards their sales of "imported" goods diminished so as to be almost non-existent save for packeted seeds. From 1946 onwards sales dropped a lot and the business of Fogwills went down. In 1961 Fogwills sold out to a Company, T.A. Miller Ltd. They took over the nurseries. Mr Miller himself said that they purchased the nursery in order to expand their wholesale business. They did not sell by retail for several months after they took over the site in 1961. Now it appears that in the last few years they have developed on the premises a "Garden Centre" selling garden ornaments and furniture, garden accessories, tools, fertilisers, and the like.


The Local Planning Authority took the view that this was a "development" of the land: that there was a "material change" of the- use of the land: that permission had not been obtained for it: and they thought it was undesirable, especially as it was right on the A.3 trunk road where traffic considerations have to be borne in mind. So on the 18th July, 1966, the Guild-ford Rural District Council on behalf of the County Council issued an enforcement notice calling on Millers to give up this use of a part of the land as a garden centre. Millers appealed to the Minister. On the 18th January, 1967, there was an inquiry by an inspector on behalf of the Minister. Evidence was given on oath by four witnesses who were cross-examined and re-examined. In addition, the Planning Authority put before the inspector a letter from Mr Fogwill, the managing director of Fogwills, written on the 19th November, 1964. He wrote that letter to the localCouncil when be was at Guildford in the neighbourhood of the nurseries. It contained very material information about the premises. He said; "When we occupied the premises referred to, it was broadly true that only produce produced at those premises was sold there, except that a stock of picketed seeds produced elsewhere was normally kept there…. We can assure you that no garden equipment or furniture of any bulk was ever stocked at the premises or even trans-shipped there, unless there was some very isolated occurrences which may have escaped our attention".


But before the Inquiry was held, Mr Fogwill had moved to Ormskirk in Lancashire and he wrote a letter explaining that he could not attend the Inquiry; "I regret to have to inform you that owing to the distance involved, I could not consider assisting you by attending at the Public Inquiry…. Nevertheless you can continue to take it that the statements made in my letter of the 19th November, 1964, were accurate".


The solicitor for Millers objected to the letter of the 19th November, 1964. He submitted that it should not be received in evidence. But the inspector admitted it. It was put to the witnesses. They did not accept it as accurate. But the inspector accepted it and it formed an important item in his findings of fact. The Inspector found that: "Between 1946 and the winter of 1960/61 retail sales of imported goods except packeted seeds, diminished to an almost non-existent level, as stated by Mr G. M. Fogwill, managing director of the firm who only some 3½ years previously had vacated the nursery".


So the Inspector relied on for Fogwill's letter. So did the Minister in his decision. Mr Dobry said that they...

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