Windsor and Maidenhead Royal Borough Council v Brandrose Investments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 27 January 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0127-4 |
| Docket Number | 83/0026 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 1983 |
[1983] EWCA Civ J0127-4
Lord Justice Lawton,
Lord Justice Griffiths
and
Lord Justice Dillon
83/0026
1979 W. No. 1701
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. Justice Fox)
Royal Courts of Justice
Mr. LIONEL READ, QC, and Mr. TIMOTHY STOW (instructed by Mr. P.B. Smith, Town Hall, Maidenhead) appeared on behalf of the Appellants (Plaintiffs).
Mr. KENNETH BAGNALL, QC, and Mr. K. REYNOLDS (instructed by Messrs. Lovegrove & Durant, Windsor) appeared on behalf of the Respondents (Defendants).
The judgment which I am about to read is the judgment of the court.
This is an appeal by the plaintiffs, the Royal Borough of Windsor and Maidenhead, against an order made by Mr. Justice Fox (as he then was) on 6th February 1981, whereby he dismissed the plaintiffs' claim against the defendants, Brandrose Investments Limited, for a declaration that the defendants had not been entitled in law to demolish, as they had done, certain buildings known as 107–111 Peascod Street, Windsor.
The plaintiffs in this court have accepted that their claim has no merit and that it could have been dismissed by the judge on the ground that it was not a proper case for the making of the declaration claimed. They have appealed, so their counsel, Mr. Read, told us, because the judge, when dismissing their claim gave as his reason for doing so his construction of section 52 of the Town and Country Planning Act 1971, which they submitted was wrong and which, if not corrected by this court, was likely to have serious consequences in the application and administration of planning legislation.
In or about 1973 the defendants, who are property developers, had, or expected to get, proprietary rights over 107–111 Peascod Street, which is part of the main shopping area of Windsor and near the Castle. The plaintiffs owned land to the rear of 107–111 Peascod Street. Both parties wanted to develop what they had got. Between 1973 and 1975 they negotiated to see whether they could develop their holdings together. These negotiations came to nothing. The plaintiffs then started compulsory purchase proceedings to acquire the defendants' holdings. These proceedings were compromised. Two agreements, both dated 22nd January 1976, gave effect to the compromise. Their general purport, so far as relevant to this appeal, was as follows: a building line was agreed. The defendants were to develop the Peascod Street side of it, the plaintiffs the other. Pieces of land on the wrong side of the building line from each party's standpoint were to be exchanged. The declared object of the exchange was to enable each party "successfully to complete its own development": see the third recital of the Land Exchange Agreement. The other agreement was declared to be made by the plaintiffs as "local planning authority" and its third recital was in these terms:"It is intended that the development of the land of the Developer"—that is the defendants—"and the incidental development of the Corporation's land shall be regulated in accordance with the provisions of section 52 of the Town and Country Planning Act 1971". Clause 2 (a) provided as follows:"The Corporation hereby covenants and agrees with the Developer that the Developer may build up to the said line 'X' 'Y' 'Z' and along its length at levels 'B' 'D' and 'E' on the said plan No. 2". There followed detailed provisions about building heights. In this court it was accepted by the plaintiffs that the defendants could not start the development contemplated by these two agreements without demolishing the buildings which then stood in Peascod Street. These buildings had no architectural or historic interest in themselves but Whilst standing they formed part of an attractive town vista towards the Castle.
On 5th October 1976 the plaintiffs granted the defendants outline planning permission to develop their Peascod Street site along the lines contemplated by the two agreements; but the parties had difficulty in agreeing the details of the design and external appearance of the buildings to be erected. These were not settled until the beginning of 1982.
On 29th March 1978 the plaintiffs designated an area, which included the part of Peascod Street which the defendants intended to develop, as a Conservation Area pursuant to section 277 of the Town and Country Planning Act 1971, as amended by the Town and Country Amenities Act 1974. Section 277A (2) of the 1971 Act, as amended, provided that "A building to which this section applies shall not be demolished without the consent of the appropriate authority". The section did apply to Peascod Street. Subsection (3) made it clear that consent to demolition had to be given specifically and was not to be inferred from the grant of planning permission. It followed, prima facie that once the Conservation Order had been made the defendants could not lawfully demolish the buildings standing on their land in Peascod Street which had to be demolished, as the plaintiffs well knew, before they could start the development which the plaintiffs had given them planning permission to carry out and which the plaintiffs had intended to be part of a large-scale development of an important part of Windsor's main shopping area. In these circumstances, by any standards other than those which sometimes are applied in Town Halls, the problem of consent to demolish could, indeed should, have been settled without recourse to litigation. The plaintiffs had acquired benefits under the two agreements by reason of the exchange of land and the arrangements for building up to an agreed line without regard to ancient lights and certain rights of way. Provided they were satisfied that the defendants did not intend, after demolishing the existing buildings, to leave an ugly gap in Peascod Street for a long time they could not properly have refused consent to demolish.
Unfortunately, on or about 29th June 1979, whether through ignorance or wilfully and without the plaintiffs' consent, the defendants started to demolish their buildings. Even if the defendants had behaved wilfully the plaintiffs...
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