The Town and Country Planning Act 1971 and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE GLIDEWELL,LORD JUSTICE RUSSELL |
| Judgment Date | 17 May 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0517-2 |
| Date | 17 May 1988 |
| Docket Number | 88/0429 |
| Court | Court of Appeal (Civil Division) |
[1988] EWCA Civ J0517-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MR. M.T. PILL Q.C., Sitting as an Additional Judge of the Queen's Bench Division)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Glidewell
and
Lord Justice Russell
88/0429
CO/355/87
And
And
MR. MICHAEL BARNES Q.C. and MR. RICHARD HAYWARD (instructed by Messrs. Edwin Coe & Calder Woods, Solicitors, London WC2A, agents for Messrs. Roderick O'Driscoll & Partners, Solicitors, Maidstone, Kent, ME14 1EB) appeared on behalf of the Applicant (Appellant).
MR. J. SULLIVAN Q.C. and MR. N. PLEMING (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent (Respondent).
MR. A. PORTON Q.C. and MR. M. LOWE (instructed by Messrs. Sharpe, Pritchard & Co., Solicitors, London, WC1V 6HG, agents for Mr. A.E. Drew, Solicitor to Ashford Borough Council) appeared on behalf of the Second Respondent (Respondent).
I have asked Lord Justice Glidewell to deliver the first judgment in this case.
The appellant, Mr. Robbins, and his wife are the owners and occupiers of a windmill with an adjoining mill house, together with some 920 square metres of land, known as Willesborough Windmill, Mill Lane, Ashford, Kent. Mr. and Mrs. Robbins purchased the windmill in 1969, with planning permission to convert it to use as a dwelling house. They have since adapted the mill for that purpose, and occupy it and the mill house as their home.
The mill, which was constructed in 1868, is of the kind known as a smock mill. It consists of a two-storeyed square brick base, above which is an octagonal mill constructed of timber framing covered with weather boarding. The mill itself-that is to say, above the brick base—contains 4 further storeys, the whole being surmounted by a cap which, at least in the past, could be turned so as to cause the sweeps, or sails, to face the wind. Around the base of the wooden mill, above the second storey of the brick structure, there was formerly a platform, or catwalk, with a railing, much of which has now been removed.
Before saying anything more about the facts I think it would be helpful to consider the legislation relevant to the problem which arises in this appeal. By section 54(1) of the Town and Country Planning Act 1971, the Secretary of State is required to compile lists of buildings of special architectural or historic interest. By subsection (9) of that section a building for the time being included in such a list is called a "listed building". The list describes buildings in three categories which, for reasons that I for one have never understood, are not called I, II and III but are called I, II* and II. By section 114 of the 1971 Act, quoting subsection (1),
"where it appears to the Secretary of State, in the case of a building to which this section applies, that reasonable steps are not being taken for properly preserving it, the Secretary of State may authorise the council of the…. county district in which the building is situated…..to acquire compulsorily under this section the building and any land comprising or contiguous or adjacent to it which appears to the Secretary of State to be required for preserving the building or its amenities, or for affording access to it, or for its proper control or management".
By subsection (3),
"This section applies to any listed building, not being an excepted building as defined in section 58(2) of this Act"—
and this building is not an excepted building. By subsection (4),
"The Secretary of State shall not make or confirm a compulsory purchase order for the acquisition of any building by virtue of this section unless he is satisfied that it is expedient to make provision for the preservation of the building and to authorise its compulsory acquisition for that purpose."
By subsection (5) the Acquisition of Land Act 1981 shall apply to the compulsory acquisition of land under this section; subsection (6) reads:
"Any person having an interest in a building which it is proposed to acquire compulsorily under this section may, within twenty-eight days after the service of the notice required by (section 12 of the Acquisition of Land Act 1981) apply to a magistrates' court acting for the petty sessions area within which the building is situated for an order staying further proceedings on the Compulsory Purchase Order; and, if the court is satisfied that reasonable steps have been taken for properly preserving the building, the court shall make an order accordingly."
Subsection (7) provides for an appeal from the Magistrates' Court to the Crown Court.
By section 115(1) the compulsory purchase of a building under section 114 of the Act shall not be started by a council
"unless at least two months previously they have served on the owner of the building, and not withdrawn, a notice under this section (in this section referred to as a 'repairs notice')—
(a) specifying the works which they consider reasonably necessary for the proper preservation of the building; and
(b) explaining the effect of sections 114 to 117 of this Act."
By subsection (4),
"For the purposes of this section a compulsory acquisition is started when the council…. serve the notice required by" section 12 of the Acquisition of Land Act 1981.
Turning to the 1981 Act, section 12(1) requires the acquiring authority to
"serve on every owner, lessee and occupier (except tenants for a month or any period less than a month) of any land comprised in the order a notice in the prescribed form—
(a) stating the effect of the order,
(b) stating that it is about to be submitted for confirmation, and
(c) specifying the time (not being less than twenty-one from service of the notice) within which, and the manner in which, objections to the order can be made."
By section 23(1) of the 1981 Act,
"If any person aggrieved by a Compulsory Purchase Order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court."
By section 24(2),
"If on the application the court is satisfied that—
(a) the authorisation granted by the Compulsory Purchase Order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act…..
the Court may quash the Compulsory Purchase Order or any provision contained therein…. either generally or in
so far as it affects any property of the application."
So the procedure for making a Compulsory Purchase Order under section 114 has to start with a repairs notice under section 115 (1); then, at least two months later the acquiring authority, if it be a district council, serves notice under section 12 of the 1981 Act of the making of the Compulsory Purchase Order, and the person upon whom it is served, the owner or occupier, has two ways of challenging the Compulsory Purchase Order, by way of application to the Magistrates' Court under section 114, or by objecting to the confirmation to the Secretary of State for the Environment. Indeed, those remedies are not alternatives; they can, at least theoretically, be cumulative. If there is an objection to the Secretary of State, he will hold an inquiry into the objection or objections and give consideration to the report of his Inspector before he decides whether or not to confirm the Compulsory Purchase Order.
I turn back to the facts. Willesborough Windmill was included in a list of buildings of special architectural or historic interest which was published by the then Minister of Local Government and Planning on 24th September 1951. It is described in the Schedule accompanying the notice of that listing as follows:
"Willesborough Windmill. Built in 1868 by John Hill of Ashford, Mill-wright. Rectangular brick base of 2 storeys. Above this an octagonal smock mill of white weather-boarding with a platform and railing round above the base. Sash windows with glazing bars intact. Hooded cap. Fantail and sweeps partly mising. The Windmill is still worked as a mill but not by wind. Unusually good condition."
As a matter of history, though it is not relevant to the matters arising on this appeal, about a year later on 4th October 1952, a preservation order was made, the Willesborough Windmill, Ashford Preservation Order 1952, made under section 29 of the Town and Country Planning Act 1947; that was confirmed by the Minister.
The Inspector who held the inquiry into objections by Mr. Robbins to the compulsory purchase order which, as I shall say in a moment, was made in respect of this windmill, made the following relevant findings of fact in paragraph 136 of his report to the Secretary of State:
"The windmill the subject of the order was built in 1868; it was last worked in 1938; it was included in grade II in a provisional list of buildings of architectural or historic interest in December 1949...
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