Westminster Bank Ltd v Beverley Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS |
| Judgment Date | 30 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0530-1 |
| Date | 30 May 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0530-1
Lord Justice Danckwerts,
Lord Justice Diplock and
Lord Justice Salmon.
In The Supreme Court of Judicature
Court of Appeal.
Appeal by Minister of Housing and Local Government from Order of Mr. Justice Donaldson on 29th February, 1968.
Mr. D.P. KERRIGAN, Q.C., and Mr. A.B. DAWSON (instructed by Messrs. Bayliss Pearce McMillan & Mott) appeared on behalf of the Westminster Bank Ltd.
The Hon. S.C SILKIN Q.C., and Mr. GORDON SLYNN (instructed by The Solicitor) appeared on behalf of the Minister of Housing and Local Government.
The title of this appeal in the Cause List is somewhat misleading because this is an appeal of the Minister of Housing and Local Government against a decision of Mr. Justice Donaldson in favour of the Westminster Bank Ltd. on the 29th February, 1968. The Borough Council of Beverley were also parties before the learned Judge, but they do not appear on this appeal. The case concerns the powers of a planning authority under the Town and Country Planning Act, 1962, and is just the kind of case which is liable to arise in the over-governed state in which the citizens of this country live, Mr. Justice Donaldson was oppressed by the deprivation of property rights which the Statute appeared to produce, and that is a view with which I sympathise completely. But the question really is whether the arbitrary results which modern legislation has produced admits of any protection by the Courts in their function of guarding the rights of a subject against oppression by the executive. It is true that the subject in the present case is a bank, but even a bank is entitled to protection against unlawful deprivation of the bank's lawful rights.
In this case the County Council of the East Riding of Yorkshire it both the highway authority in respect of county roads, and is also the planning authority, but the County Council have delegated some of their planning functions to the Borough Council of Beverley in the East Riding of Yorkshire.
The site concerned is the back portion of the property of the bank which abuts on a narrow road in Beverley called Lairgate. On this portion of their property the bank wish to build a strong room, a manager's office, and a waiting room, and wish to alter the lavatory accommodation. For this planning permission is required, and this the bank have been refused by the Borough Council acting under the powers delegated to then. Putting the position generally, the grievance of the bank is that the permission has been refused because the Borough Council has produced a development plan and a nap for this part of Beverley which will involve the widening of Lairgate from its presentwidth of 16 feet, including pavements, to 40 feet with a 24 foot roadway. The plan has now been approved by the Borough Council, but has not yet been brought before the Minister for his approval. The bank's case is that provisions for the widening of roads are properly the subject of the fixing of "improvement lines" or "building lines" under sections 72 and 73 of the Highways Act, 1959, which would involve present payments of compensation for injurious affection, and should not be dealt with under planning legislation which might produce reduced compensation (if any).
The case before Mr. Justice Donaldson is reported in 1968, 1 Weekly Law Reports, at page 1080.
One of the objections raised on behalf of the bank is that the matter of this development has been under discussion for 20 years, and even now there is no real prospect of the development being carried out within 10 years or any other certain period in the future. This is a point which is not without force because refusal of planning permission might sterilise development of the bank's land for an indefinite period.
The history of the case and dates are as follows; the first refusal of planning permission by the Beverley Borough Council was in April 1962. A second refusal occurred in April, 1964, and the bank then appealed to the Minister. In March 1965 there was an enquiry by Mr. R.W, Deans, whose report, dated the 22nd April, 1965, did not receive a favourable reception by the Minister.
On the 10th March, 1966, the Minister's decision was adverse to the bank, but a further inquiry was offered by the Minister and accordingly on the 1st November, 1966, a further inquiry took place before Mr. J.P. Jackson. His report dated the 23rd November, 1966, was received with more approval by the Minister, and, on the 21st January, 1967, the Minister gave his decision by letter again against the bank's application. I do not regard this history with any admiration. Mr. Justice Donaldson has quashed the decision of the Minister. At the hearing before Mr. Justice Donaldson the bank's case was essentially based on two contentions: (1) If the local planningauthority or the Minister refuses permission for development for no other reason than that of thereby avoiding the creation of an Improvement or building line for highway purposes, the refusal is ultra vires. The basis of this argument, as I understand it, was that the proper way to deal with such an intention was by Invoking the provisions of either sections 72 or 73 of the Highways Act, 1959, with the resulting effects in regard to compensation.
(2) The Minister being under an admitted obligation to give sufficient reasons for his decisions, failed to give reasons for his decisions, and the bank's interests have been substantially prejudiced thereby.
In regard to the first point, we were referred to the often quoted statement by Lord Warrington of Clyffe in Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners (1927 A.C, 343) at page 359: "A statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms."
This is a well recognised and excellent principle, but unfortunately the Town and Country Planning Act, 1962, contains numerous provisions interfering with rights of property of a subject, sometimes on terms of compensation and sometimes without such terms. In such a situation the statement by Lord Warrington is either excluded or is satisfied, according to the manner in which it is viewed. Consequently this point must fail, I fear.
As regards the second point, it is plain, in my opinion, that in his decision the Minister made clear, expressly or by implication, the reasons which induced him to reach his decision. This appears from two paragraphs in the Ministers letter of decision (document 6, page 42): "The Minister has considered the reports of the Inspectors, Mr. R.W, Deans … who held a local inquiry on 30th March 1965, and Mr. J.P. Jackson …. who reopened the inquiry on 1st November 1966. Copies of both reports arc enclosed. The local planning authority's reason for refusing planning permission, as given in the notice of their decision, wasthat the proposed development might prejudice the possible future widening of Lairgate and the question of whether this is a proper or sufficient reason for refusing the planning permission sought is the only matter in dispute in the appeal
Moreover, on page 20 of document 6, in the case for the appellants, paragraph 7, the following statement appears; "It is significant that the machinery of the Highways Act has not been invoiced. If the road widening is a necessary and viable step in the interests of road efficiency, action under Section 73 of the Act is the only proper means of achieving the objective. It is a misuse of the powers under the planning Act to whittle away an owner's rights of compensation by refusing permission which would otherwise be appropriate, under the pretext of safeguarding a scheme which has no statutory standing, sc as to protect, in the eventuality, the public purse at the expense of individuals. The case of Hall v. Shoreham Urban District Council (W.L.R. 1964 page 240) was referred to — which is a different caseand indeed was only quoted for a dictum taken out of the judgment.
So the point made by the bank was plainly brought to the attention of the Minister and was plainly rejected by him.
Reference to the Town and Country Planning Act, 1962, shows that the Minister was entitled to take into consideration highway matters. See section 17 (1), which requires a planning authority to have regard to the provisions of the development plan so far as material to the application for planning permission, and to any other material considerations. The widening of Lairgate was certainly material, and, perhaps vital, to the scheme which was to be carried out by the material plan. Indeed the grounds for the refusal of the bank's application for planning permission were, in my opinion, reasonable and a matter of common sense. If Lairgate needed to be widened in order to carry the traffic anticipated under the planning authority's scheme, it would be absurd 2nd wasteful to allow buildings to be erected on Lairgate, which would have to be removed and destroyed when the scheme was carried out. and it may-be thatthe provisions of sections 72 or 73 of the Highways Act, 1959, might be employed at a later date. I do not think that the Minister's decision was ultra vires. For these reasons, in my view, the learned Judge reached the wrong conclusion and result in quashing the Minister's Order, and the appeal must be allowed.
LORD JUSTICE DIPLOCK. The Westminster Bank was minded to build a new strong room at the rear of their premises in the non-county Borough of Beverley where they abutted into Lairgate, a county road for which the East Riding County Council is the highway authority. This would constitute...
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