Mixnam's Properties Ltd v Chertsey Urban District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK,LORD JUSTICE WILLMER |
| Judgment Date | 23 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0523-1 |
| Date | 23 May 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0523-1
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
1962. M. No. 2220
Mr. DOUGLAS G. H. FRANK (Instructed by Messrs Wilkinson Howlett & Moorhouse) appeared on behalf of the Appellants (Plaintiffs)
Mr. ALAN GARFITT (instructed by Messrs Champion & Co.) appeared on behalf of the Respondents (Defendants).
The plaintiffs, as holders of a site license issued by the defendants In respect of a caravan its at Staines Lane, Chertsey, brought this action claiming a declaration that certain conditions sought to be Imposed by the defendants are ultra vires and of no effect. No objection is taken to this form of action being resorted to for the purpose of testing the validity of the conditions. On the contrary, the action has been described to us as a friendly action, and we have been Informed that the defendants are just as anxious as the plaintiffs to obtain a decision as to the validity of their conditions.
The action was tried by Lord Justice Ormerod, sitting as an additional Judge of the Queen's Bench Division. By hisJudgment, given on the 12th February 1963, he decided that, having regard to the wide power to Impose conditions which is contained In the relevant statutory enactment, the conditions objected to could not be said to be ultra vires. He accordingly dismissed the action, and the plaintiffs now appeal to this court.
It will be convenient first to refer to the relevant statutory provisions, which are contained In the Caravan Sites and Control of Development Act, 1960. Section 1 subsection (1) provides that after the commencement of the Act no occupier of land shall cause or permit any part of the land to be used as a caravan site unless he Is the holder of a site license; and by subsection (2) penalties are prescribed for contravention of this requirement. Section 3 subsection (1) provides that application for the Issue of a site license must be made to the local authority In whose area the land is situated. By subsection (3). that authority may Issue a licence if, and only If, the appellant Is, at the time when the licence is issued, entitled to the benefit of planning permission under Part III of the Town and Country Planning Act, 1947. If the applicant is entitled to the benefit of such planning permission, then by subsection (4) the issue of a site licence by the local authority Is mandatory! similarly, under subsection (5), If the applicant becomes entitled to the benefit of planning permission after the application for a site licence has been made. Subsection (6) forbids a local authority to issue a site licence to any person who to their knowledge, has held a site licence which has been revoked within the last three years. This is a provision on which some reliance was placed by the defendants as showing that, unlike a planning permission (which operates in rem), a site licence is personal to the licensee.
The power to impose conditions on the issue of a site licence is contained in section 5, subsection (1) of which Is in the following terms: "A site licence Issued by a local authority in respect of any land may be so issued subject to such conditions as the authority may think it necessary or desirable to impose on theoccupier of the land in the Interests of persons dwelling thereon In caravans, or of any other class of persons, or of the public at large; and In particular, but without prejudice to the generality of the foregoing, a site licence may be Issued subject to conditions (a) for restricting the occasions on which caravans are stationed on the land for the purposes of human habitation, or the total number of caravans which are so stationed at any one time; (b) for controlling (whether by reference to their size, the state of their repair or, subject to the provisions of subsection (2) of the section, any other feature) the typos of caravan whole are stationed on the land; (c) for regulating the positions In which caravans are stationed on the land for the purposes of human habitation and for prohibiting, restricting, or otherwise regulating, the placing or erection on the land, at any time when caravans are so stationed, of structures and vehicles of any description whatsoever and of tents;(d) for securing the taking of any steps for preserving or enhancing the amenity of the land, Including the planting and replanting thereof with trees and bushes;(e) for souring that, at all times when caravans are stationed on the land, proper measures are taken for preventing and detecting the outbreak of fire and adequate means of fighting fire are provided and maintained; (f) for securing that adequate sanitary facilities, and such other facilities, services or equipment as may be specified, are provided for the use of persons dwelling on the land In caravans and that, at all times when caravans are stationed thereon for the purposes of human habitation, any facilities and equipment so provided are properly maintained".
The plaintiffs placed some reliance on subsection (6), which gives power to the Minister to specify model standards with respect to the lay-out of, and the provision of facilities, services and equipment for, caravan sites, and requires that a local authority, in deciding what conditions to Impose, shall have regard to any standards so specified. We were shown a leaflet published by the Minister specifying model standards in pursuance of this subsection; but the matters dealt with therein are remote from the conditionssought to be imposed In the present case; and I confess that I do not find the leaflet of much assistance in deciding the issues which fall to be determined here. Reference should also be made to section 7, which provides that any person aggrieved by a condition subject to which a site licence has been issued to him may, within twenty-eight days of the date on which the license was issued, appeal to the local magistrate's court, and that court, If satisfied that the condition is "unduly burdensome", may vary or cancel it. Lastly, it is necessary to refer to section 9, which provides that an occupier of land who fall's to comply with a condition attached to a site license held by him shall be guilty of an offence, for which penalties are proscribed. It is, I think, important to boar in mind, when considering the validity of conditions sought to be imposed, that breach thereof could have penal consequences.
In the present case the site had been In use for many years as a caravan site, and It was claimed (and not denied) that It was subject to "existing use rights ", so as not to require planning permission. The defendants were consequently bound to issue a site license, and it is in this context that the validity of the conditions sought to be Imposed has to be considered.
A large number of conditions was attached to the site license in this case, but objection Is taken to only six of them, namely, Nos. 28 to 33, which come under the headings "(E) Conditions of tenancy". It is, I think, desirable to set out in full the terms of the disputed conditions. They are as follows. "(28) The site rents which are to be inclusive of all services except electricity shall be agreed with the Council. (29) Security of tenure, subject to similar conditions appertaining to a statutory tenancy of a dwelling-house under the Rent Acts, shall be granted to all caravan occupier" (30) Site rules shall be restricted to those items normally covered by a tenancy agreement, and necessary for the good administration of the site. (31) There shall be no restriction on caravan occupiers as to from whom they purchase the commodities thatif they require, or on the callers that they may have for purpose of trade or pleasure (32) No premium late be charged for any caravan occupier entering the site, or any restriction as to the make or supplier of the caravan. Existing caravan occupiers purchasing now caravans shall not be compelled in any way to purchase a particular make of caravan or from a particular dealer.
(33) There shall be no restriction Imposed on the caravan occupiers of the formation of, or membership of, any form of tenants' association, political party or other organization".
The case for the plaintiff was that, wide as are the words of section 5, they must be read a subject to are limitation and cannot be construed as conferring an unfettered discretion on local authorities to impose whatever conditions they like Lord Justice Ormerod appears to have accepted that the section cannot be read as conferring an unfettered discretion, but he concluded that the only fetter is the right conferred by action 7 upon any person aggrieved to appeal to the magistrates if any condition imposed is considered to be unduly burdensome. I find myself unable to accept this view, and indeed counsel for the defendants has not sought to support it. It must, I think, be clear that the question whether a condition is burdensome or not is of no necessary relevance to the inquiry whether it is or is not within the powers conferred. A condition which is clearly intra vires may yet be unduly burdensome, and the converse is equally true.
In this court It has been accepted that, In spite of the wide terms in which It is expressed, the power to impose conditions which is conferred by section 5 of the Act must be subject to some limitation. Counsel for the defendants admitted, for instance, that a local authority would not be within Its powers in seeking to impose a condition contrary to law. He also conceded that the powers under the action must be limited to matters within the ambit of the statute, though he made it clear that the defendants took a different view from that of the plaintiffs as to what the ambit of the...
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