Newbury District Council v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE BROWNE |
| Judgment Date | 13 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0713-1 |
| Docket Number | No. 243 of 1975 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 1978 |
In the matter of Section 246 of the Town and Country Planning Act 1971
And
In the Matter of Land At Membury Airfield, Lambourn Woodlands Newbury, Berkshire
[1978] EWCA Civ J0713-1
The Master of The Rolls
(Lord Denning)
Lord Justice Lawton and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Divisional Court
MR. P. BOYDELL, Q.C. and MR. R. GRAY (instructed by Messrs. Sharpe Pritchard & Co., Solicitors, London, agents for W. J. Turner, Esq., LL. B, Solicitor Newbury) appeared on behalf of the Appellants.
MR. C. SYMONS (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
MR. D. WIDDICOMBE, Q.C. and MR. A. ANDERSON (instructed by Messrs. Herbert Smith & Co., Solicitors, London) appeared on behalf of the Second Respondents.
Before the 1939/45 War the stretch of land was delightfully rural. It was in open country next to an old earthwork of the Stone Age called Membury Fort in the down lands of North Wiltshire. But during the War the Crown requisitioned it and became the owners of it. It was turned into an airfield, with long concrete runways said huge hangars, used by the armed services for their military operations. After the War the Air Force gave up the airfield and gradually the area was restored to agricultural use. The concrete runways were broken up and turned into fields again. But not the hangars. They remained huge black structures of corrugated iron despoiling the landscape. They were used for storage. At first the Ministry of Agriculture used them to cope with the food shortage. They stored supplies in the hangars and distributed them as rations to the towns and cities. That went on for six years until 1953. A year or two later the Home Office made use of the hangars for Civil Defence. They stored vehicles in them for issue in the event of a national emergency. There were 152 Bedford self-propelled fire-pumps (Green Goddesses) and, 10 Morris Equipment vehicles. They were stored away like clothes in moth-balls. That went on until 1959 when the Home Office gave it up.
It then became known that the Crown was thinking of selling the site of the airfield and the hangars. This was of interest to the pre-war owner of the land, Mr. J.G. Gilbey, and his family trustees. He came to a provisional agreement with the Crown and applied for planning permission for the hangars. He said that he wanted them for agricultural purposes so as to store fertilisers and corn. The local council on 2nd December, 1959 granted him planning permission for this purpose: Change of use of hangars at Membury Airfield to allow for storage ofagricultural products:
Subject to these conditions:
(1) The buildings shall be removed at the expiration of the period ending 31st December, 1970.
(2) No fertiliser shall be stored in the buildings which give rise to offence by reason of smell.
For this reason:
To safeguard the amenities of the area".
After obtaining this permission the Gilbey trustees negotiated with the Air Ministry. On 30th November, 1961, they bought the freehold of the site from the Crown for £9,000 and granted a lease back to the Crown for 40 years at £2 a year.
Soon afterwards a rubber company became interested in the hangars. They thought them very suitable for the storage of synthetic rubber. The company was cabled the International Synthetic Rubber Co. Ltd. It was wholly-owned by the big rubber companies of the world.
On 7th May, 1962 this rubber company applied for planning permission. They stated in their application that the hangars were used for the "storage of synthetic rubber" and they asked for permission for their use "as warehouses for the storage of synthetic rubber". They said in a covering letter: "As we are prospective buyers from the Air Ministry, it would be appreciated if the planning authorities could see their way to giving their permission to cover as long a period forward as is possible".
On 31st May, 1962 (before they bought the hangars) they were given planning permission for: "Use of two hangars on Membury Airfield as warehouses". Subject to these conditions: "(l) The buildings shall be removed at the expiration of the period ending December 31st, 1972. (2) The use shall be confinedto storage and no materials shall be stored which give rise to offence by reason of smell". For this reason: "(l) To accord with the local planning authority's policy regarding industrial development in rural areas. (2) To safeguard the amenities of the area".
Having got that permission, which covered them for the next ten years, up to 51st December,1972 - the rubber company proceeded to purchase the hangars. There was a sale by the Crown by auction on 26th July, 1962 at Newbury of the forty-year lease at a ground rent of £2 a year. The particulars of sale contained an important quotation from the Development Plan about the future. It said: "The consent of the Berkshire County Council has been obtained for the use of these hangars for storage purposes until December 31st, 1970 … The revised County Map has been amended so as to conform with the County Council policy for such sites. The written statement says that: Problems have arisen from time to time regarding the use of buildings on sites relinquished by Government Departments. These are often suitable in design for industrial or storage use, although frequently their location in open countryside renders them unsuitable in location as permanent centres of employment and detrimental to landscape amenities. The local Planning Authority will normally only permit permanent changes of use in localities appropriate in the light of their general policy objectives for the distribution of employment; otherwise they will seek to secure removal of the buildings. Temporary periods of changed use may be permitted in particular circumstances."
The auction was held on 26th July, 1972. The 40-year lease was knocked down to the rubber company for £22,000. No doubt they made their bid, knowing that their permission only carriedthem for ten years. They knew they had to remove the hangars by 31st December, 1972. Yet they now seek to say that they are not so bound. To this I will return.
The rubber company continued thenceforward for several years to use the hangars for storing their synthetic rubber. In November 1970, realising that their permission was coming to an end in December, 1972, they applied for an extension for 30 years. On 4th January, 1971 the Hungerford District Council refused it. They gave as their reason that the proposal conflicted with the County Development Plan, that it was within an area of outstanding beauty, and "The development is very conspicuous from the adjoining highway and represents undesirable alien intrusion into the rural landscape to the detriment of the amenities of the area".
The rubber company appealed to the Minister against that refusal.
On 31st December, 1972 the rubber company ought to have ceased using the hangars and removed them. They did not do so. They continued to use them in defiance of the conditions. The council gave them a good deal of grace, but in November 1975 served enforcement notices. The rubber company appealed to the Minister. They contended that the condition was void, or that they were authorised to use them a warehouses.
In 1973 there was a local inquiry. The inspector was clearly of opinion that, on planning merits, the hangars ought to be removed. "There can be no doubt", he said, "that they are large, prominent and ugly in what must have been and could be a pleasant rural scene". But he thought that on legal grounds they could not be removed, nor could the rubber company be stopped from using them. He thought that the condition requiring theirremoval was void, because it was "a condition extraneous to the proposed use".
The Minister gave his decision in a letter of July 1975. He held that the condition was invalid, and that the planning permission itself was void, as in Hall & Co. v. Shoreham-by-Sea UDC (1964) 1 Weekly Law Reports 240. Nevertheless the rubber company could not be stopped from using them. The hangars were very unsightly and ought on the planning merits to be removed, but the rubber company had an indefeasible right to go on using them because they had started using them before 1963, see section 87 of the 1971 Act.
The local planning authority appealed to the Divisional Court. They dismissed the appeal. The local planning authority appeal to this court. The rubber company resist the appeal. So does the Minister.
THE PRESENT VIEW OF THE MINISTRY
The present view of the Ministry is contained in a circular which was issued in 1968 and is numbered 5/68. It is to the effect that, when an applicant applies for permission to change the use of an existing building, the local planning authority, when granting permission, can impose a condition limiting the period of time during which the building may be so used; but cannot impose a condition requiring the building to be removed at the end of that time. The crucial sentence in the circular is this: "A condition requiring the removal of an existing building, whether on the application site or not, will only be reasonable if the need for that removal springs directly from the fact that a new building is to be erected".
This the view of the Ministry (as appears from the Circular itself) is based upon some words of mine in the Pyx Granite case (1958) 1 Queen's Bench at page 572: "Although theplanning authorities are given very wide powers to impose 'such conditions as they think fit', nevertheless...
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