Wilson v West Sussex County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK
Judgment Date31 January 1963
Judgment citation (vLex)[1963] EWCA Civ J0131-3
Date31 January 1963
CourtCourt of Appeal
Kathleen Wilson
Claimant Appellant
and
West Sussex County Council
Compensating Authority Respondents

[1963] EWCA Civ J0131-3

Before

Lord Justice Willmer

Lord Justice Danckwerts and

Lord Justice Diplock

In The Supreme Court of Judicature

Court of Appeal

From the Lands Tribunal

(Mr Erskine Simes)

MR R. E. MEGARRY, Q.C. and MR DAVID TRUSTRAM EVE (instructed by Messrs George E. Baker & Co., Guildford) appeared as Counsel for the Appellant.

MR GERARD RYAN (instructed by Mr T.C. Hayward, Clerk to the West Sussex County Council) appeared as Counsel for the Respondents.

LORD JUSTICE WILLMER
1

This is an appeal by way of Case Stated dated the 19th July, 1962, from a decision of the Lands Tribunal given on the 7th March, 1962. The case arises out of a claim for compensation brought by the claimant under the Town and Country Planning Act, 1947, consequent upon the Planning Authority having made a modification order in respect of certain property which was the subject of two earlier planning permissions granted to the claimant and to her predecessor in title. Broadly speaking, the answer on behalf of the Compensating Authority is that no compensation is payable because the modification order does not in fact take away from the claimant any right that she previously had. The question whether compensation is payable at all was ordered to be tried by way of a preliminary point as a question of law. When the matter came to trial before the Lands Tribunal, the parties in fact prepared three questions of law which they invited the Lands Tribunal to answer, and the answers to which they thought would enable the claim for compensation to be readily disposed of. Whether or not that result will in fact follow from our decision is another matter.

2

The relevant facts of the case are set out in considerable detail in the decision of the Lands Tribunal and in the statement of facts, both of which were annexed to the Case Stated. I propose, therefore, to refer to the facts only in the barest outline. The claimant is the owner of premises called Greenhill Farm at Roundhurst near Haslemere. It appears that the country in which her property lies comes within an area described as being of outstanding natural beauty. The two planning permissions, to which I have referred, and the modification order, the subject of this appeal, relate to a cottage proposed to be built on the land forming part of the claimant's farm. The first permission was an outline planning permission granted to the claimant's predecessor in title on the 23rd July, 1956. The relevant part is in the following terms: "The Council hereby permit thefollowing development, that is to say: Erection of agricultural cottage, part 0.S.90" – that is the number of the field, I understand – "Greenhill Farm, Roundhurst, Lurgashall, in accordance with the plan and application No.LG/2/56 submitted to the Council on the 7th March, 1956". That was granted subject to two conditions: "(a) The permission hereby granted is an outline permission under Regulation 5(2) of the Town and Country Planning General Development Order, 1950, and the approval of the local planning authority is required in respect of the matters reserved in this permission before any development is commenced. (b) Further particulars giving details of the siting, design, and external appearance of the building and details of the means of access shall be submitted to and approved by the Council".

3

It will have been observed from what I have read that the permission in terms incorporated the plan and application. I will deal in a moment with a point which has been raised with regard to that; but looking at the application it is not unimportant, I think, to observe the terms of Question 4 of the printed form, which is in these words: "Particulars of the proposed development, including" the purpose for which the land and/or buildings are to be used. If for were than one purpose, give details;. The answer submitted by the applicant was: "Agricultural cottage". I do not know whether it was because the applicant asked for permission for the erection of an "agricultural cottage", but in fact she obtained outline permission for the erection of an "agricultural cottage"; it appears that that expression was derived from the words used by the applicant herself.

4

The second application was granted on the 20th October, 1959. That was in response to an application made by the claimant herself. The following were the relevant terms: "The Council hereby permits the following developments, that is to say: Agricultural cottage, Greenhill Farm, Roundhurst, in the terms of,and subject to compliance with, the details specified in plan and application NO.LG/2/56A submitted to the Council on 23rd July, 1959". Here again, the permission, it will be observed, referred specifically to the application. On this occasion the answer given to question 4 of the printed form was: "Cottage for additional accommodation on estate". The permission actually granted, it will be observed, was again for an "agricultural cottage".

5

After that there was what I can only describe as an abortive attempt on the part of the Planning Authority to revoke the two planning permissions; but that came to nothing, because the Minister refused to confirm the revocation order.

6

It was in that situation that the modification order, which has given rise to these proceedings, came to be made. It was an order made, as I understand it, in pursuance of the powers conferred by Section 21 of the Town and Country Planning Act, 1947. The order was made on the 26th January, 1961, and was confirmed by the Minister on the 22nd March, 1961. The main modification brought about by the order was by way of insertion in the conditions attached to both the planning permissions of a further condition in the following terms: "The occupation of the cottage shall be limited to persons employed or last employed locally in agriculture as defined in Section 119(1) of the Town and Country Planning Act, 1947. in forestry and the dependents of such persons". Pausing there, I think it is clear that the terminology of that condition must have been borrowed from the case of Fawcett v. Buckingham County Council, which had been decided not very long before the modification order was made.

7

Having regard to the insertion of this restrictive condition the claimant claims to be damnified by the modification order, and accordingly seeks compensation under Section 22 of the Act. It is her case that this condition restricts therights which she would otherwise have had in relation to the occupation of the cottage proposed to be built, and that that is a proper subject for compensation. Against her it is said on behalf of the Compensating Authority that under the previous planning permissions the claimant was already in effect subject to equivalent restrictions, so that the modifying order did not really take away any rights which she previously enjoyed. As I understand the case presented on behalf of the claimant, it is that under the two planning permissions, viz. the outline permission of 1956 and the second permission of 1959, there was no restriction at all on the class of occupier who might be introduced to the cottage proposed to be built. The use of the word "agricultural" to describe it was, it is said, merely descriptive of the type of building. It has been argued that any limitation on the type of occupier could only arise if an express condition were attached to the planning permission, as has indeed now been done by the modification order. In this connection our attention was called to Section 14 of the Act, under which it is competent for a planning authority to grant permission subject to conditions.

8

On the other hand, on behalf of the Compensating Authority it has been argued that having regard to the introduction of the word "agricultural" the two permissions only authorise the erection of a cottage to be occupied by a person engaged in agriculture. Mr Ryan has submitted that the phrase "agricultural cottage" means a "small house to be used by a person substantially engaged in agriculture". It was further argued, at any rate before the Lands Tribunal, that it was plain, both from the form of the applications and from the contemporaneous correspondence, that that was all that was asked for by the claimant and her predecessor in title.

9

At this stage I should, I think, read the questions which the Lands Tribunal were invited to answer and did answer.

10

They are as follows: "(a) Whether in law certain outline planning permissions for an" agricultural cottage dated 23rd July, 1956, and 20th October, 1959, limit the type or class of occupant of the said cottage? (b) If the said permissions in law limit the type or class of occupant of the said cottage, what is the extent of the limitation? (c) If the said permissions in law limit the type or class of occupant of the said cottage, whether the said permissions limit the occupation to persons employed or last employed locally in agriculture as defined in Section 119(1) of the Town and Country Planning Act 1947 or in forestry and the dependents of such persons?". The words of that third question, of course, follow the words of the express condition which was incorporated as the result of the modification order. The answers liven to those questions by the member of the Lands Tribunal were all answers favourable to the Compensating Authority. He answered the first question: "Yes". The second question he answered: "The type or class of occupant must be one employed locally in agriculture as defined in Section 119 of the Act of 1947"; and the third question he answered: "Broadly, yes". He went on to say (and this may very well be open to argument): "The effect of these answers must be that the original question as to the claimant's right to compensation must be, answered in the...

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