Slough Estates Ltd v Slough Borough Council (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE KARMINSKI |
| Judgment Date | 27 March 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0327-1 |
| Date | 27 March 1969 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Town and Country Planning Acts 1932-1962.
The Town and Country Planning (General Interim Development) Orders 1933 and 1945,
The Town and Country Planning General Development Order 1963, and
A Resolution and Permission Dated Respectively 8 and 17 October, 1945.
[1969] EWCA Civ J0327-1
The Master of The Rolls (Lord Denning),
Lord Justice Salmon and
Lord Justice Karminski
In The Supreme Court of Judicature
Court of Appeal
Mr. D. FRANK, Q.C., Mr. A.C. SPARROW, Q.C., Mr. P. FREEMAN and Mr. D, KEENE (instructed by Messrs. Kenneth Brown, Baker, Baker) appeared on behalf of the Plaintiffs.
Mr. J. ARNOLD, Q.C., Mr. J. HARMAN, Q.C. and Miss APPLEBY (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Mr. Norman T. Berry, Town Hall, Slough, and Mr. R.E. Millerd, County Hall, Aylesbury) appeared on behalf of the Defendants.
The Slough Trading Estate is owned by Slough Estates Limited. It lies astride the main railway line to the West. It is some 500 acres in extent. By 1944 half of it had already been developed for factory buildings. This development covered a floor space of 3,471,396 square feet. The end of the War was in sight. The company looked forward to post-war development. In 1944 the company's surveyor made a plan showing how the remaining half of the estate, some 240 acres, then undeveloped, could be laid out. I will call it the "1944 layout". It was dated 12/12/44. It showed now roads, factories, electric generating-station, oar-parks, and 15 acres marked "no development". The floor area of the proposed new factories was given as 2, 647, 697 square feet.
On 22nd January, 1945, the company's surveyor, by letter, submitted the 1944 layout, as an interim development measure, to the Slough Borough Council. The Council gave it the number "U.L, 21". On 8th October, 1945, the Council approved it by a Resolution which was noted in the Council minutes in this way:
Plan No.
Applicant and Proposed Development
Town Planning
U. L. 21
Slough Estates Ltd. Lay-out of Undeveloped portion, Trading Estate
Town PlanningApproved
On 17th October, 1945, the Slough Borough Council, by their Town Clerk, issued a planning permission which is the key document in this case. I will call it the "1945 permission" and I will set it out in full:
"Application No. U. L. 21.
To: Slough Estates Limited.
The Council as Interim development Authority hereby permit the land situate at the Trading Estate at present undeveloped and shown uncoloured on the plan submitted, to be used for industrial purposes, subject to the submission by the developer and subsequent"approval by the Council, or by the Minister of Town and Country Planning on appeal, of particulars of the proposed development (and to compliance) with the conditions specified hereunder:-
That further particulars of the proposed development be submitted and approved in due course.
The reasons for the Council's decision to grant permission for the development, subject to compliance with the conditions hereinbefore specified:-
To ensure that development shall comply with the Planning Scheme now in course of preparation.
DATED the Seventeenth day of October, 1945.
J. H. Warren,
Town Clerk".
The Company, Slough Estates Ltd., say that the 1945 permission is still in force: and that, by virtue of It, they are entitled to erect factory buildings on large open spaces without getting industrial development certificates. The Council say that it has long since been abandoned. I will assume for the moment that it le still in force, and seek to construe it, so as to see if it bears the wide import claimed by the company.
1. THE CONSTRUCTION OF THE 1945 PERMISSION
The first problem is caused by the word "uncoloured" in the phrase: "shown uncoloured on the plan submitted." The plan submitted was the 1944 layout U.L.21. It showed proposed development for industrial purposes on the coloured portion, and not on the uncoloured portion. The coloured portion was coloured yellow for proposed roads, pink for proposed factories, green for proposed open spaces, and so forth. The portion which was uncoloured showed the then existing development (of 250 acres) and a few odd bits scattered about for which there were no proposals. That word "uncoloured" was in the Permission obviously a mistake. By no possibility could anyone think that the Council had given permission to develop the uncoloured portion, when the plan showedthat the company wanted to develop the coloured portion and to build upon it factory buildings covering 2,687,652 square feet.
The learned Judge thought that this mistake could not be corrected: and that the permission must be construed literally so as to give permission for industrial purposes on the uncoloured land: though he confessed that he found this unattractive. It is not only unattractive. It is absurd. And I decline to give this permission such an absurd effect. It would mean that we would foist on to the company something for which they never asked and which was no good to them at all. If there were no other way out of the difficulty, I would hold the permission bad for uncertainty, or, at any rate, absurdity, or I would rectify it so as to give effect to the proved intention of the Council, if proceedings were brought for that purpose.
But I think there is a way out. The permission must be construed together with the plan which was submitted and was incorporated into it, see Wilson v. West Sussex County Council (1963 2 Q.B. 764). I confine myself to the plan. I do not think it is permissible to look at the Resolution of the County Council or the correspondence, for neither of them was incorporated into the permission, see Miller-Mead v. Minister of Housing and Local Government and Anr. (1963 2 Q.B. 223-234) by Lord Justice Upjohn. The reason for excluding them is this: The grant of planning permission has to be in writing (see the General Interim Development Order 1945, Article 12) and it runs with the land. The grant is not made when the County Council resolve to give permission. It is only made when their Clerk, on their authority, issues the permission to the applicant. Seeing that it has to be in writing, you can only look to the permission itself and the documents incorporated in it. In this case there was one important document incorporated in the Permission. It was the "plan submitted" showing the 1944 layout U.L.21 with all the colours and wording upon it. In the light of this plan, I think the only sensible way of interpreting the Permission is to reject the word"uncoloured" as being absurd and inapplicable (See The Merak 1955 p. 223) and to hold that permission was given to develop that portion of the Trading Estate which was at that tine undeveloped as shown on the plan. That is, the 240 acres or thereabouts, both coloured and uncoloured. It was what we would call today an outline permission. The colours and wording on the plan showed the proposals in outline, but not in such a way as to bind either the company or the planning authority to the details. The details were to be worked out later, by the company, submitting particulars, and by the Council approving, or disapproving them. Thus the site of the roads might be varied. The floor area of the factories might be increased or diminished. And so forth.
The second problem in the 1945 Permission is the meaning of the words: "to be used for industrial purposes". Does this authorise the company to erect factory buildings? or are they limited to using the 240 acres for roads, oar-parks, and so forth, without buildings? The answer is again to be found by reference to the plan submitted. It clearly includes the erection of factory buildings. And there is this very important point to be noticed: At that date in 1945 there was no need for the developer to obtain from the Board of Trade an Industrial Development Certificate. The need for such a certificate was only introduced in 1947 by Section 14(4) of the 1947 Act, It did not apply to pre-1947 permissions. So this 1945 permission (if it is still in force) has the enormous advantage that the company can erect factory buildings on these 240 acres (save for the 15 acres marked no development") without getting Industrial Development Certificates, That adds greatly to the value of the permission, see Viscount Camroso v. Basingstoke Corporation (1966 1 W.L.R. 1101).
There is one other thing to be noted on the 1945 permission. It is the reason for the condition. It was stated to be "to ensure that development shall comply with the Planning Scheme nowin course of preparation" Thai; planning scheme was altered from time to time. But it blossomed out into a full-blown Development Plan which was the subject of an Inquiry in July 1952 by ah Inspector from the Ministry. The Development Plan contained important differences from the 1944 layout. Largo areas which had previously in 1944 been allocated for industrial purposes were not in 1952 scheduled as open spaces. At the Inquiry, the County Council, through their clerk, appears to have acknowledged that the 1945 Permission was valid and that, If It was to be revoked so as to provide for these open spaces, the company would be entitled to compensation.
2. ABANDONMENT
Thus far I have assumed that the 1945 Permission is still in force. But now comes the crux of the case. The Council say that the Company abandoned it many years ago and cannot now revive it.
One thing is quite clear. The Company, Slough Estates Ltd., never acted on the 1945 Permission. They behaved for many years as if it never existed. They made a large number of new planning applications to erect factories on parts of these 240 acres, but they have in...
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