Stephens v Cuckfield Rural District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE UPJOHN,LORD JUSTICE HODSON |
| Judgment Date | 02 June 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0602-5 |
| Date | 02 June 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0602-5
Lord Justice Hodson
Lord Justice Pearce and
Lord Justice Upjohn
In The Supreme Court of Judicature
Court of Appeal
Mr. J.P. WIDGERY, Q.C. and Mr. ALAN FLETCHER (instructed hy Messrs. Sharpe, Pritchard & Co., Agents for Mr. J.A. Churchill, Haywards Heath, Sussex) appeared-on "behalf of the Appellants (Defendants).
Mr. G.G. BAKER, Q.C. and Mr. R. BELL (instructed "by Messrs. Iliffe, Sweet & Co.) appeared on behalf of the Respondent (Plaintiff).
JUDGMENT LORD JUSTICE HODSON: The judgment which I will ask Lord Justice Upjohn to read is the judgment of the court.
This appeal raises a short question of construction on section 33 of the Town and Country Planning Act, 1947 (which we shall call "the Act"). The question is whether certain land "belonging to the respondent (the plaintiff in the court below) is properly described as "a garden, vacant site or other open land" for the purposes of that section.
At the trial which took place before the Lord Chief Justice all the facts were agreed in the documents and by reference to certain agreed photographs, and no evidence was called by either side. The facts shortly are as follows.
The respondent has for many years, been the owner of a plot of land approximately 200 feet square on part of Tilgate Forest at Pease Pottage in the county of Sussex. During the war he erected timber and metal buildings with iron roofs on this plot of land and he used such buildings and the remainder of the plot as a sawmill for the purpose of cutting up wood hewn from the surrounding forest. The respondent ceased to use the plot for that purpose in the year 1955 anc" he then let it to a company for the purposes of a car breakers' business. At some time before the issue of the notice mentioned later the respondent enclosed this plot of land with a wire fence and concrete posts, which appear in the photographs. As one would expect from the nature of this type of business and as clearly appears from the photographs, the operations carried on by the respondent's tenants were very unsightly. The appellants, who are the local authority for this district, invoked the assistance of section 33 and served a notice on the respondent under that section on the 2nd April, 1957. That notice described the respondent's land as open land within the curtilage of premises to the north of Parish Lane, Pease Pottage, and ordered the respondent to remove from the said land all cars, car bodies and machinery. Exercising his rights under the Act and Regulations made by the Minister under section 33 sub-section 2, the respondent appealed to the local magistrates against the order. The magistrates, however, dismissed the appeal, and further appeals to Quarter Sessions and by way of Case Stated to the Divisional Court apparently suffered the same fate. But it is common ground that those courts had no jurisdiction to consider the short point that is before this court.
Section 35 sub-section 1 is in these terms: "if it appears to a local planning authority that the amenity of any part of the area of that authority, or of any adjoining area, is seriously injured by the condition of any garden, vacant site or other open land in their area, then, subject to any directions given by the Kinister, the authority may serve on the owner and occupier of the land, in the manner prescribed by regulations under this Act, a notice requiring such steps for abating the injury as ZiZy be specified in zhe notice to be taken within such period as may be so specified". This section is in Part III of the Act, Which is headed "Control of Development etc." Section 12 is the first section in that Part and provides that permission shall be required in respect of any development of land carried out after the appointed day (the 1st July, 1948). Sub-section 2 further defines the meaning ox the expression "development" and provides inter alia that the use of any buildings or ozher land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such should not involve development of the land. Then follow a number of sections dealing with applications for planning permission and appeals and so forth.
Section 23 empowers the local planning authority to serve enforcement notices where development of land has been carried out after the appointed day without the grant of permission. Section 26 and the following sections down to 5k are in a section of Part III headed "Additional Powers of Control". Section 26 provides that the local planning authority if they deem it expedient to do so in the interests of the proper planning of their area, may serve notices directing that the use of land should be discontinued, and section 27 provides that in such a case the owner of the land must "be compensated "by the local authority.
It is not in dispute that under the Town and Country Planning (Use Classes) Order, 1950, when the building and the land surrounding it was used as a sawmill both the building and the surrounding land used for the like purpose was a "general industrial "buildingll for the purposes of that Order. Furthermore, it is common ground that its use now as a car breakers" yard does not change its character from a "general industrial building" and therefore under the provisions of the Act no development permission was required when the sawmill business was abandoned and the car breakers' yard took its place. It cannot be doubted, therefore, that the respondent by his tenants is lav/fully entitled to carry on that business upon that land, without obtaining planning permission.
In the court below the learned Lord Chief Justice expressed the view that the prima facie meaning of "open land" in section 33 covers operations on or user of any open land in the sense of land which is not built upon. He was to some extent influenced by the Regulations made by the Minister under subsection 2, which showed that in the view of the Minister "open land" might include land upon which some business was carried on. We doubt very much whether it is right to construe the words of the section by reference to Regulations made under powers therein contained, especially when such Regulations are directed solely to procedural matters such as conferring rights of appeal in certain limited circumstances from an order of the local authority.
Nevertheless, looking at the section as a whole and despite the marginal note to which reference is made later, we respectfully agree with the Lord Chief Justice that unbuilt on land upon which businesa is carried on is not necessarily excluded from the definition of "open land" for the purposes of the section. However, he accepted the argument of Mr. Baker for the respondent that although the literal interpretation of "open land" might be "unbuilt on land". yet by reason of the earlier sections in Part III which we have briefly summarised Parliament could not have intended...
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