Planning - 1970- 1979

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This page lists 27 cases, and was prepared on 28 October 2012.

Manchester Corporation -v- Connolly [1970] Ch 420
1970 CA Lord Diplock	Planning, Land, Litigation Practice	Casemap 1 Citers
	The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: "The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. "

Hartley -v- Minister of Housing and Local Government [1970] 1 QB 413
1970 CA Lord Denning MR, Widgery LJ	Planning	Casemap 1 Citers
	A petrol station operated with an area to display and sell cars. Sales stopped in 1961 when the owner died. His son was thought too young and inexperienced son to be involved in car sales. Sales were resumed in 1965 when a new owner acquired the site. The court was asked whether that 1965 resumption amounted to an unauthorised change of use. The Minister and the Divisional Court held that it did. The appellant site owner submitted: "The intention is an essential element; and here the evidence supports the view that though the widow, because of her son's youth and inexperience, told him not to sell cars, she would have liked the car sales to continue since the demand was there; so the evidence is that the car sales use was only temporarily suspended until such time as the then owners felt able to resume it." Held: The submission failed. Lord Denning MR: "The question in all such cases is simply this: Has the cessation of use (followed by a non-use) been merely temporary, or did it amount to an abandonment? If it was merely temporary, the previous use can be resumed without planning permission being obtained. If it amounted to abandonment, it cannot be resumed unless planning permission is obtained. ... Abandonment depends on the circumstances. If the land has remained unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the tribunal may hold it to have been abandoned." Widgery LJ: "The substance of the defence of the appellant in this case must be that although it seems there had been no car sales use from 1961 to 1965, yet on a fair and commonsense view of the facts, the proper interpretation of those facts was that the original phase 1 use for car sales had never come to an end. It is in connection with that argument that the question of abandonment arises. It has been suggested in the courts before, and it seems to me that it is now time to reach a view upon it, that it is perfectly feasible in this context to describe a use as having been abandoned when one means that it has not merely been suspended for a short and determined period, but has ceased with no intention to resume it at any particular time. It is perfectly true, as Mr. Glidewell says, that the word 'abandonment' does not appear in the legislation. We are not concerned with the legislation at this stage but merely with the facts of the matter. I cannot think of a better word to describe a situation in which the land owner has stopped the activities constituting the use not merely for a temporary period, but with no view to their being resumed. If that has happened, then, as a matter of fact, the use has ceased."

Stringer -v- Ministry of Housing and Local Government [1970] 1 WLR 1281
1970 Cooke J	Planning	Casemap
	The material considerations to be allowed for by the local authority in exercising its planning functions are considerations of a planning nature, "all considerations relating to the use and development of land are considerations which may, in a proper case, be regarded as planning considerations". Though a private individual may not have any right of action against the local authority they can take his interests into account.

Lavender -v- Minister of Housing and Local Government [1970] 1 WLR 1231
1970 Willis J	Local Government, Planning	Casemap
	While it is not for the courts to interfere with the formulation or administration of the Minister's planning policies, the Minister is not able to dictate the exercise of discretion on the basis of a policy mandate.

Lever (Finance) Ltd -v- City of Westminster [1970] EWCA Civ 3; [1971] 1 QB 222; (1970) 21 P & CR 778; 68 LGR 757; [1970] 3 WLR 732; [1970] 3 All ER 496
22 Jul 1970 CA Lord Denning MR, Sachs, Megaw LJJ	Planning, Local Government	Casemap 1 Cites
	The appellant developers had obtained detailed planning approval for fourteen houses, but after adjustments for a building line, moving several properties distances of several feet toward other properties, further plans were submitted without identifying the changes. The changes were discussed, and an approval noted by the developer's architect. The development proceeded. A neighbour objected, and the officer recommended an application for approval of the amendment. The planning committee refused approval. Held: The developer succeeded. Lord Denning MR said that the case "should be decided on the practice proved in evidence. It was within the ostensible authority of Mr. Carpenter to tell Mr. Rottenberg that the variation was not material. Seeing that the developers acted on it by building the house, I do not think the Council can throw over what has been done by their officer, Mr Carpenter."
	Link[s] omitted

Kent County Council -v- Kingsway Investments (Kent) Limited [1971] AC 72
1971 HL Lord Morris	Planning	Casemap 1 Citers
	The objectives of the policy discouraging conditional planning consents included the avoidance of the accumulation of unimplemented permissions, an objective which itself underlay the time limit provisions, originally introduced under the 1968 Act.

Hussain -v- Secretary of State for the Environment, Transport and the Regions (1971) 221 EG 627
1971	Planning	Casemap 1 Citers

Regina -v- Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 23 P&CR 39; [1971] 70 LGR 142
1971 QBD Lord Widgery CJ Browne and Bridge JJ	Planning	Casemap 1 Citers
	The Council’s Planning Committee had resolved that the town clerk should be authorised to approve the application when evidence of an agreement about car parking facilities had been received. Held: There is no effective planning permission unless and until the written notice is issued to the applicant. No such notice having been given the authority was free to alter its decision.

Petticoat Lane Rentals Ltd -v- Secretary of State for the Environment [1971] 2 All ER 793; [1971] 1 WLR 1112
1971 CA Lord Widgery CJ	Planning	Casemap
	Lord Widgery LCJ considered the theory that once a land-owner erects a new building to replace another, that is a new use, and any establshed use falls: ". . . One gets in my judgment an entirely new planning unit created by the new building. The land as such is merged in that new building and a new planning unit with no planning history is achieved. That new planning unit, the new building starts with a nil use . . ."

Westminster Bank Limited -v- The Minister for Housing and Local Government, Beverley Borough Council [1971] AC 508
1971 HL Lord Dilhorne, Lord Reid	Planning, Local Government	Casemap 1 Citers
	The Bank's application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the Highways Act, 1959, but in that event would have had to pay compensation for the injurious effect on the bank's land. The bank sought to quash the refusal. It was held that although the local authority might have proceeded under the Act of 1959 they were entitled to refuse planning permission on the ground stated, even though the result would be to deprive the bank of compensation. Lord Dilhorne said: "It was strenuously argued for the appellants that the county council, having failed to prescribe such a line under the Highways Act, could not lawfully achieve the [same] result … by refusing planning permission for all development within [the relevant area]. The validity of this argument depends on whether the county council had been given by Parliament a choice of methods for preventing such development or were bound to exercise their powers under the Highways Acts. The answer to this question, in my opinion, is to be found in section 220 of the Act of 1962". The principle that property rights should only be removed without compensation on the use of clear wording in a statute was explained by Lord Reid saying that it flows from the fact that Parliament seldom intends to do that, and that before attributing such an intention we should be sure that it was really intended. However: "When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt."
	Town and Country Planning Act 1962 220

Stevens -v- Bromley London Borough Council [1972] 1 Ch 400
1972 Salmon LJ, Stamp LJ, Edmund Davies LJ	Planning	1 Cites 1 Citers
	The court referred to the extent of interest in land required by caravan dwellers to support payment of compensation on the issue of enforcement notice. Held: Salmon LJ: "I agree that the interest referred to in section 45(3)(b) is confined to a legal or equitable interest and does not include an interest in the loose or colloquial sense of someone being interested in the land." Stamp LJ, (dissenting), the caravan dwellers had no legal or equitable interest in the land itself or any part of it.
	Town and Country Planning Act 1962 45(3)(b)

Burdle -v- Secretary of State for the Environment [1972] 1 WLR 1207; [1972] 23 All ER 240
22 Jun 1972 QBD Lord Widgery CJ, Willis, Bridge JJ	Planning	Casemap 1 Citers
	The appellants had purchased land which had been used as a dwelling with a lean-to annex which had been used as a scrap yard, selling off car parts. The appellant had reconstructed the annex with a shop front, and began to use it more substantially for the sale of car parts. The planning authority served an enforcement notice asserting a change of use and breach of planning control. On appeal both the appellant and respondent presented the site as a whole. The appeal failed, but the respondent had argued that the notice could apply only to the annex, falling within the definition on its own of a shop, and that therefore the enforcement referred to the annex alone. The appellant said that by considering only the annex, he had lost the ability to argue that as regards the site as a whole, there had been no material cange of use. Held: The Secretary of State's decision did not identify the reasoning used to reach his decision, and the matter must be remitted. Whilst the word shop would not naturally apply to the whole site, the accident of the language used by the planning authority could not determine what made up the planning unit. A good guide to what made up a planning unit was to consider the site as a whole until and unless some smaller unit could be identified from its physical and functional identity. Bridge J: It 'may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say hat one isincidental or ancillary to another' and 'however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.'
	Town and Country Planning Act 1962 180

Thomas David (Porthcawl) Ltd and others -v- Penybont Rural District Council and others [1972] 3 All ER 1092
5 Oct 1972 Lord Denning MR, Edmund Davies, Stephenson LJJ	Planning	Casemap 1 Cites 1 Citers
	The appellant complained that an enforcement notice had been served as to an entire plot of land when the activities complained of, sand and gravel extraction, had occurred on only two smaller parts. Held: The site should be looked at as a whole. The appellant had a licence from the land owner to extract materials from the remaining site, had claimed the right to make such extractions, and had already extended their operations during the appeal process. The abolition of the four year rule for change of use enforcement did not apply to mining.

Kingston London Borough Council -v- Environment Secretary [1973] 1 WLR 1549
1973 Lord Widgery C.J	Administrative, Planning	Casemap 1 Cites 1 Citers
	Planning was granted for the rebuilding of a railway station on condition that the land allocated for parking should be made available for such purposes at all times and used for no other purpose. The station was duly rebuilt but the car park was not provided. The local planning authority served an enforcement notice requiring compliance with the condition. Held: The words of the statute clearly on their face entitle the local planning authority to impose conditions which affect land not the subject of the application itself and which go to the restriction of the past user or removal of existing work. Although they are wide it has been recognised for a long time that they are subject to certain restrictions. The two principal restrictions which the court had placed on those words are first that a condition is invalid as being contrary to law unless it is reasonably related to the development in the planning permission which has been granted: it must not be used for an ulterior purpose, and second a condition which is so clearly unreasonable that no reasonable planning authority could have imposed it may be regarded as ultra vires and contrary to law and treated as such in proceedings in this court

Aston -v- Secretary of State for the Environment Unreported, 09 April 1973
9 Apr 1973 Lord Widgery CJ	Planning	Casemap 1 Citers
	The court considered the planning effect of a new building on about a half of a site. Lord Widgery CJ: ". . The principle which one derives from the authorities and applies to the present case is that, where you have a new building erected, that part of the land which was absorbed in the new building and covered by the new building is merged in it; you start with a new planning unit which has no permitted planning use except those derived from the planning permission, if any, and from section 33(2) of the Town and Country Planning Act 1971, which allows such a building in many instances to be used for the purpose for which it was designed."
	Town and Country Planning Act 1971 33(2)

Hope -v- Secretary of State for the Environment (1975) 31 P & CR 120
1975 Phillips J	Planning	Casemap 1 Cites 1 Citers

Howard -v- Secretary of State [1975] QB 235
1975 CA Stamp LJ	Planning	Casemap 1 Citers
	A notice of appeal was given against an enforcement notice, under the Act which required that an appeal should be made by notice in writing to the minister, "which shall indicate the grounds of the appeal and state the facts on which it is based". Failure to submit a valid notice of appeal within the permitted time limit would result in the enforcement notice taking effect and any right to challenge it being lost. A notice of appeal was served in time, but it failed to state either grounds or facts. A subsequent letter gave the necessary information, but was not posted until after the period had elapsed. Held: Although the requirement for a written notice of appeal was mandatory, the requirement to set out the grounds and the facts was directory only. "The machinery of the enforcement provisions and the appeal therefrom simply would not work unless there were some fixed time put in section 16(1) to limit the time in which an appeal is to be brought. That provision is therefore imperative or mandatory and a failure to appeal within the time there limited clearly goes to the jurisdiction. The provisions of subsection (2) requiring the notice to indicate the grounds of appeal and to state the facts on which it is based appear to me to be more in the nature of procedural matters which are directory and do not go to the jurisdiction."
	Town and Country Planning Act 1968 16(1)

AI and P (Stratford) Ltd -v- Tower Hamlets London Borough Council [1975] 237 Estates Gazette 416
1975	Planning
	The landowner challenged conditions attached to a grant of planning permission for an extension. A restriction would require the existing office accomodation to be used for ancillary purposes only. Held: The conditions were upheld.

Clyde & Co -v- Secretary of State for the Environment [1977] 1 WLR 926
1977 CA Sir David Cairns	Landlord and Tenant, Planning	Casemap 1 Citers
	Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of the residential part of the block to office use. That application was refused. The resulting appeal was dismissed by the Secretary of State. At first instance Willis J. quashed the decision, following Granada on the basis that the desirability of retaining the existing housing use was an immaterial consideration. Held: This approach was wrong, Sir David Cairns: "The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty".

Sovmots Investments Ltd -v- Secretary of State for the Environment [1977] QB 411
1977 Forbes J	Planning	Casemap 1 Citers
	Conveyancing Act 1881 6

Newbury District Council -v- Secretary of State for the Environment and others (1977) 35 P&CR 170
1977 QBD Mr Justice Robert Goff	Planning	Casemap 1 Citers
	Mr Justice Robert Goff: “The subsection provides that no enforcement notice shall be served in respect of such a development. It does not provide, as it easily could have done if such had been the intention, that no enforcement notice should be served on the Crown in respect of such development. It follows that, if a private citizen should subsequently acquire any such land from the Crown, he would not have to apply for planning permission in respect of development within the subsection. He too would be protected from the service of an enforcement notice by the terms of the subsection which are quite explicit.”
	Town and Country Planning Act 1947 87(1)

Penwith District Council -v- Secretary of State for the Environment [1977] JPL 371; [1977] 34 P & CR 269
1977 QBD	Planning
	The second respondents had a factory. They sought planning permission to extend it, and this was granted with conditions, against which the land-owners appealed, saying that the first defendant had misused the opportunity to seek to impose conditions on the existing development. Held: When an application was made, an authority might grant permission attaching conditins which would affect an existing authorised us and without offering compensation. The new conditions must however relate to the devel;opment now permitted. That applied in this case, and the conditions were not ultra vires.

Regina -v- Secretary of State for the Environment ex parte Ostler [1977] 1 QB 122
1977 CA	Administrative, Planning
	The six week period during which a challenge must be made to a compulsory purchase is not capable of extension under the rules of court. The legislative intention is that questions as to the invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the court is excluded in the interests of certainty.

Seddon Properties Ltd -v- Secretary of State for the Environment (1978) 42 P & CR 26; [1981] 42 P&CR 26
1978 Forbes J	Planning	Casemap 1 Citers
	The court considered the degree of detail to be provided in a decision notice: "Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not entertain a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again, in doing so he must, at any rate if substantial issues are involved, give clear reasons for his decision. In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument . ."

Winchester City Council -v- Secretary of State for the Environment (1978) 36 P & CR 455
1978 Forbes J	Planning	Casemap 1 Citers
	"What does "new evidence" in this context mean? It cannot mean that, because the inspector has not seen it before, everything that he sees is new evidence. If it meant that, every time that an inspector went on a view he would have to re-open the inquiry because he would be taking into account new evidence, and, of course, at that inquiry, in accordance with the terms of Rule 13(ii) of the Rules of 1974, he would have to go and have another view, and he would then be having further fresh evidence which would require him to re-open the inquiry once more, and one would have a never-ending case like a cat chasing its tail. The task of inspectors would then be even worse than it is at the moment. "New evidence" means that, if what is seen on a view raises a point that was either not raised during evidence or argument at the inquiry or, if it was raised, was taken as being so peripheral as to be of virtually no account, then there is a duty to reconvene the inquiry or at least to give an opportunity of making representations. If, however, when [what] is seen on a view simply serves to underline or give greater emphasis to some point that was raised at the inquiry, then no such opportunity need to be given."

Brighton Borough Council -v- Secretary of State for Environment (1978) 39 P & CR 46
1978	Planning	Casemap 1 Citers

Suffolk County Council -v- Mason [1979] AC 705; [1979] 2 All ER 369
1979 HL Lord Diplock	Land, Planning	Casemap 1 Citers
	The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: "The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and published. They provide an elaborate procedure for enabling representations or objections to be made to the surveying authority (with a right of appeal to the minister) as to anything contained in or omitted from the draft map. Such representations and objections can be made not only by persons interested in the land, but also by members of the public, so that a person who alleges that a right of way as shown on the draft map ought to be upgraded from "footpath" to "bridleway," or from "bridleway" to "road used as a public path," has an opportunity at this stage of adducing evidence to make good his claim. The next step in the procedure is the preparation by the surveying authority of a provisional map incorporating any modifications to the draft which, as a result of representations, have been accepted by the surveying authority or upheld by the minister on appeal. The procedure for verifying the accuracy of what is eventually to be shown on the definitive map does not stop here; though the remaining step is not likely to bring to light the existence of more extensive rights of way than are shown on the provisional map. Its presence may, however, supply an explanation of why a reasonable allegation that a right of way of a particular kind exists is treated as sufficient justification for entering it on the draft map. The owner, lessee, or occupier of the soil over which any right of way shown on the provisional map passes has the right under section 31 to apply to quarter sessions (now the Crown Court) for declarations inter alia that a right of way shown on the provisional map either does not exist or is there shown as being more extensive than it really is; and, if he does so, the onus of proving the existence of the disputed right lies on the county council. But failing any proceedings in the Crown Court under this section, an entry of a right of way that originally appeared on the draft map on no firmer basis than that the surveying authority was of opinion that an allegation that it existed was a reasonable one is carried through to the definitive map unaltered." and "The way in which ramblers . . are to be benefited is by providing them with an easy and conclusive way of proving their rights to walk . . on particular routes". Lord Diplock also said: "At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public - a rule of law that is the origin of the brocard "once a highway, always a highway."
	National Parks and Access to the Countryside Act 1949