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Planning - From: 1960 To: 1969

This page lists 26 cases, and was prepared on 02 April 2018.

 
Fawcett Properties Ltd v Buckingham County Council [1961] AC 636; [1960] 3 All ER 503
1960
HL
Lord Keith of Avonholm, Lord Denning
Planning, Agriculture
A grant of planning permission was subject to an agricultural occupancy condition: "The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119(1) of the Town and Country Planning Act, 1947, or in forestry or in any industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid."
It was argued that the condition (i) was ultra vires the statutory power to grant planning permission subject to conditions and/or (ii) was void for uncertainty. Held: The appeal failed. The term 'dependants' means persons living in a family with the person defined (the agricultural occupant), and dependent on him (or her) in whole or in part of their subsistence and support. A condition will be void for uncertainty only if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results.
Lord Keith of Avonholm rejected the argument as to uncertaincy, saying: "Reading the condition as a whole I do not find any insuperable difficulty in arriving at a reasonable and clear idea of the content of the condition. It refers in the first place to 'the occupation of the houses', which I read as being confined to occupation by persons having certain defined qualifications and to the dependants of these persons. There may be a certain ambiguity here, but your Lordships are not concerned here with resolving ambiguities or placing a considered and final meaning on the condition. Speaking for myself I would not read the occupation as covering an independent occupation by dependants of the persons mentioned, but as including occupation by such dependants while living in family with such persons and occupying the houses along with them. Death, or removal from the houses, of the persons defined would terminate the occupation of the dependants. Nor can I see any difficulty in construing 'dependants', when brought within the confines of a house, as meaning persons living in family with the person defined and dependent on him in whole or part for their subsistence and support "
Lord Denning summarised the relevant principles relating to the imposition of planning conditions, including that they must fairly and reasonably relate to the permitted development, and said: "The condition, properly construed with the reason, means, I think, that the occupation of the cottages must be limited to persons who are employed in agriculture in the locality or in a local industry mainly dependent upon agriculture in the locality. The word 'occupation' is used to denote the head of the household. The word 'latest' to show that he may stay on in the cottages after his retirement. The word 'dependants' to show that he may have with him his wife and family and anyone else dependent on him. So construed it seems to me that the condition fairly and reasonably relates to the permitted development. Its effect is to ensure that the cottages will be occupied by persons who will help to maintain the normal life and character of this part of the green belt and not by outsiders to use as a dormitory. The cottages are for farm-workers or for men who work at the smith shoeing horses, at the mill grinding the corn, or at the saw mills cutting up wood; or in modern times at the milk depot bottling the milk or at the repair shop mending the tractors; and so forth. They are not for people who go up and down to London every day"
Lord Denning stated: "a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents."
Town and Country Planning Act 1947 14(1)
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Buxton v Minister of Housing and Local Government [1961] 1 QB 278
1961

Salmon J
Planning, Local Government
The planning functions of a local authority are exercised in the public interest. Salmon J said: "The scheme of the Town and Country Planning Legislation, in my judgment, is to restrict development for the benefit of the public at large and not to confer new rights on any individual members of the public, whether they live close to or far from the proposed development."
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 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd; QBD 1961 - [1962] 1 QB 416; [1961] 2 All ER 46
 
Britt v Buckinghamshire County Council [1962] 14 P&CR 332
1962
QBD
Widgery J
Planning
The four years period limiting enforcement proceedings runs from the first date at which the enforcement notice could have been served. Widgery J said: "If the plaintiff can . . Show that a notice in the terms of that served could, on the facts proved, have been served more than four years before the date upon which it was actually served, the notice served is bad, and it matters not that a further intensification of the use has resulted in further development within the four year period, because that further development will not be the development or give rise to the breach of condition upon which the notice is based."
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East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484
1962
CA
Lord Parker CJ
Planning
Lord Parker CJ said that "what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier."
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Belmont Farm Ltd v MHLG (1962) 13 P and CR 417
1962


Planning

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Miller-Mead v Minister for Housing and Local Government and Another [1963] 2 QB 196
1963
CA
Upjohn LJ, Lord Denning MR
Planning
The court considered the power of the Secretary of state to vary or amend an enforcement notice under the Act. Held: He could amend a notice which was otherwise invalid but not one which was upon its face a nullity. Lord Denning MR said: "He can correct errors so long as having regard to the merits of the case the correction can be made without injustice."
Upjohn LJ drew the distinction between planning enforcement notices which were a nullity and those which were invalid. The distinction was to be drawn by reference to whether or not the correction did indeed go to a matter of substance and cause, or potentially cause, injustice: “Now, what happens if a notice does not comply exactly with those sections? As a matter of common sense, if it does not specify the steps to be taken to remedy the alleged breach of planning permission or the alleged failure to comply with the conditions with proper and sufficient particularity, the notice will not be operative. So, too, if subsection (3) is not complied with. Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under section 23(4)(a). The notice is invalid: it is not a nullity because on the face of it it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad: the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice was hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that the failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity.”
Health and Safety at Work Act 1974 - Town and Country Planning (Scotland) Act 1972 169
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 Britt v Buckinghamshire County Council; CA 1963 - [1963] 2 WLR 722; [1963] 2 All ER 175; [1964] 1 QB 77; [1963] 1 All ER 175
 
Mansi v Elstree Rural District Council (1964) 16 P & CR 158
1964
QBD
Widgery J
Planning, Agriculture
The local planning authority served an enforcement notice reciting that the appellant had changed the use of a glasshouse on a nursery garden from use for agricultural purposes to the use for the sale of goods and requiring the appellant to discontinue the latter use. No reference was made in the notice to the former subsidiary use for the retail sale of nursery produce and other articles nor was there any provision for its continuance. The court held that the Minister ought to have amended the notice under the powers given to him so as to make it perfectly clear that the notice did not prevent the appellant from using the premises for the sale of goods by retail, provided that such sale was on the scale and in the manner to which he was entitled in 1959, as the Minister himself had found. True that use was a subsidiary one, but nevertheless it should be protected and, in my judgment, this appeal should be allowed to the extent that the decision in question should be sent back to the Minister with a direction that he ought to amend the notice so as to safeguard the appellant's established right as found by the Minister to carry on retail trade in the manner and to the extent to which the Minister had found it was carried on in 1959.
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Brayhead (Ascot) Ltd v Berkshire County Council [1964] 1 All ER 149; [1964] 2 QB 303
1964
CA
Winn J
Planning
Planning permission had been granted subject to conditions, but no reasons had been given for the imposition of those conditions. The Order required the local planning authority to state its reasons in writing if it decided to grant planning permission subject to conditions. It was argued that the lack of reasons meant that the conditions were a nullity and could not be relied upon in enforcement notice proceedings. Held: A failure to comply with the duty to give reasons for the imposition of a planning condition did not invalidate the condition (let alone the planning permission) and the duty could be enforced by mandamus. The tribunal's task is to seek to do what is just in all the circumstances.
Winn J said: "As a matter of construction it seems clear that article 5(9)(a) requires (1) that the notice of decision be in writing; (2) the reasons be stated in writing; (3) that the notice be accompanied by a notification in the prescribed form; these requirements can be satisfied by a single document or by three physically separate documents.
Should requirement (1) not be complied with, disputes might well arise as to the calculation of the time limit for appeal to the Minister fixed by section 16(1) of the Act; should requirement (3) not be satisfied an applicant might be left in ignorance of his rights. Each of those requirements is therefore essential to the statutory purposes. The interposition of requirement (2) militates strongly against any view that it can be regarded as merely directory; all three requirements appear to be mandatory. It does not follow necessarily that non-compliance with any one of them will render the notice null in law, still less that the decision of which notice purports to be given is itself of no legal effect. The court is not concerned in the instant case with any non-compliance with requirement (1) or requirement (3): the effect of non-compliance with requirement (2) must be decided.
No doubt such a non-compliance may be and often will be inconvenient for an applicant; he may find it necessary to give notice of appeal to the Minister before he knows the strength or weakness of the case which he will have to meet. However, he could undoubtedly demand, as of right, a statement of reasons and by threat or effect of an order of mandamus secure them, and it would be strange if the Minister did not adjourn his appeal until the reasons had been delivered and considered. In the sense that there is a duty to state the reason in writing requirement (2) is undoubtedly mandatory. Comparison may be made of the provisions of section 12 of the Tribunal and Enquiries Act, 1958, requiring that reasons, if requested, be stated, in general, for a decision: a non-compliance with those provisions would certainly found a mandamus.
It is another matter whether the notice of condition in the present case, or such a tribunal decision is rendered null by a failure to state reasons in writing: notwithstanding the obiter dicta of Salmon J this extreme result is not required for the effective achievement of the purposes of the statute nor intended, as a matter of construction, by Parliament."
Town and Country Planning (General Development) Order 1950
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James v Secretary of State for Wales [1965] 63 LGR 269
1965
QBD

Administrative, Planning
The defendant challenged the validity of a planning enforcement notice served after he had increased the number of caravans on his site. The Secretary of State said it amounted to a change of use.
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 Ashbridge Investments Ltd v Minister of Housing and Local Government; CA 1965 - [1965] 1 WLR 1320; [1965] 3 All ER 371
 
Minister of Housing and Local Government v Hartnell [1965] AC 1134
1965
HL
Lord Wilberforce, Lord Reid
Torts - Other, Planning
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established under planning law as: ‘analogous to a right established by prescription'.
Where a statutory procedure exists for taking away rights with compensation, the court will resist the argument that some other procedure is available for doing the same thing without compensation.
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James v Secretary of State for Wales [1966] 1 WLR 135
1966
CA
Lord Denning and Davies LJ
Administrative, Planning
The planning authority served an enforcement notice after the land owner increased the number of caravans on his land. The court considered the validity of the enforcement notice. Lord Denning said: "It was said on behalf of the appellant that the change of use alleged in the enforcement notice (from one to four caravans) was not a material change of use. Intensification of an existing use, it was said, is not a material change of use. I do not agree. I think that a considerable increase in the number of caravans would be a material change of use. In any case it must be remember that this whole site was used as a pleasure ground with a café and one caravan. If the site is used as well for several caravans, that would be a material change of use. It would be a change from a pleasure ground to a caravan site, at least in part. This question -- of a material change of use -- has been repeatedly held to be a question of fact and degree. The Divisional Court was quite right to refer it to the Minister for decision."
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Moody v Godstone Rural District Council [1966] 1 WLR 1085
1966


Planning
The actual date of service of an enforcement notice under the Town and Country Planning Act 1962 was not material because the notice only took effect on the date stated in it, namely 1st July with 28 days from then for compliance. The date of posting and indeed the date of service itself did not cause time to begin to run.
Town and Country Planning Act 1962
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James v Minister of Housing and Local Government [1966] 1 WLR 135
1966


Planning
The appellant challenged the validity of a conditional planning permission which had been granted after the expiry of the period statutorily prescribed for doing so. It is unnecessary to examine the cases in detail. Held: A planning permission so granted was not necessarily voidable, but that it might be so in certain circumstances.
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Ormston v Horsham Rural District Council 1966 LGR 452
1966

Lord Denning
Local Government, Planning
Lord Denning said: "An Enforcement notice is not to be regarded with the strict eye of a conveyancer. An inaccuracy or mis-description does not make it a nullity . . so long as an Enforcement notice tells a man fairly what he has done wrong and what he is required to do to put it right, then the notice is good."
1 Citers



 
 G Percy Trentham Ltd v Gloucestershire County Council; CA 1966 - [1966] 1 All ER 704; [1966] 1 WLR 506; [1966] 130 JP 179; [1966] 64 LGR 134
 
Williams v Minister of Housing and Local Government (1967) 18 PCR 514; (1967) 111 Sol Jo 559; (1967) LGR 495; (1967) 203 EG 688
1967
QBD

Planning, Agriculture
The appellant land-owner had bought it with an established business selling by retail from it vegetables and fruits and flowers grown on the land. He made minor alterations to the shop and began to sell also a number of oranges bananas and lemons which he had imported. This amounted to some 10% of his total sales. An enforcement notice was served as to these new sales, the authority saying that this was a change of use requiring permission, and a discontinuance of the retail shop. On reference, the Minister took the view that the mode of use of the building before the purchase was merely incidental to its use as a nursery, but that the change by addition of the sale of imported produce changed the character of the use amounting to a material change within section 12(1). Permission had been required and had been properly refused. The land owner appealed. Held: When asking whether a material change had occurred, the proper unit for consideration was the land and building as a whole. However, a change in the character of an ancillary use might amount to a material change in the use of the land as a whole.
The Minister had decided that the original and primary use was for agriculture with only an incidental use for the sale of produce from the land. That decision was correct, and he was entitled to conclude from it that the addition of sales of imported produce amounted to a change in the character of use. The change could not be disregarded as de minimis.
The court gave the opinion that had the building been considered in isolation, it would have had a retail shop use and it would have been arguable that a new permission would not have been required.
Town and Country Planning Act 1962 12(1) Part III
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 Wells v Minister of Housing and Local Government; CA 1967 - [1967] 1 WLR 1000
 
Jolliffe v Exeter Corporation [1967] 1 WLR 993
1967
CA
Lord Denning, Davies LJ, Russell LJ
Land, Damages, Planning
Mr Joliffe owned a garage on a busy road. Adjoining land was involved in a widening scheme, the result of which was to leave his garage at the end of a cul de sac, though no land was taken from him. Held: Section 10 gave him no right to compensation. Where the execution of the works is facilitated by a stopping-up order made by a different compensating authority, under a different statutory scheme not incorporating the 1965 Act, the stopping up does not give rise to a claim under section 10.
Davies LJ noted that the stopping up of the street was done by the Minister under the Town and Country Planning Act, which made no provision for compensation.
Russell LJ said that: "the execution of the works authorised, that is to say, the construction of the highway" had no injurious effect on the plaintiff's property and "The damage was already done. Coombe Street, before a pick or spade had been laid on the works, had been turned into a cul-de-sac so far as the plaintiff was concerned."
Lord Denning said od a stopping up order that it: "authorised the stopping up of various streets in Exeter, including this part of Coombe Street. But it is important to observe that the Act of 1947 contains no provision for compensation. In this respect the Act is like the old Highways Act, 1835. The legislature provided for local inquiries and confirmation by quarter sessions, but no provisions for compensation. Under that Act the stopping up might ruin a man's trade, but he could recover no compensation. So here, the stopping up of Coombe Street may damage Mr Joliffe's trade in that street, but he can recover no compensation on that account."
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Garland v The Minister of Housing and Local Government 1968] 20 P & C R 93
1968
CA
Lord Denning MR
Planning
The court was asked whether, when a building was found to have been erected without permission, the Local authority was able to agree a partial demolition, leaving what would have been permitted under the General Development order. Held: It could. Lord Denning MR said: "After all, the local planning authority cannot pick and choose between the various parts of the extension. It cannot say which is to be pulled down and which to stand. It can only order the removal of the whole.
It is only right to add that, nevertheless, the city council have said that they are prepared to allow Mr Garland to keep so much of the extension as comes within the amount permitted by the General Development Order. That is very proper. We have been shown a plan which indicates that Mr Garland will be allowed to keep quite a lot of what he has done. It means, however, that he will have to take down a good deal of the top storey and part of the second. But I will not go into those details. I would only echo the words of Lord Parker CJ in the Divisional Court: I hope that an amicable arrangement can be reached."


 
 Prossor v Minister of Housing and Local Government; 1968 - (1968) 67 LGR 109
 
James v Secretary of State for Wales [1968] AC 409; [1967] 1 WLR 171
1968
HL

Administrative, Planning
The land-owner increased the number of caravans on his land. The planning authority alleged there had been a change of use, and issued an enforcement notice. The land-owner challenged its validity. Held: A decision granting or refusing permission after the expiry of the period is valid and effective.
1 Cites

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 Lord Luke of Pavenham v Minister of Housing and Local Government; CA 1968 - [1968] 1 QB 172
 
Jelson v Minister of Housing and Local Government [1970] 1 QB 243; [1969] 3 All ER 147
1969
CA
Lord Denning MR, Sachs LJ, Phillimore LJ
Land, Planning
A proposed ring road had been cancelled. The landowners applied for certificates of appropriate alternative development. The Minister confirmed the negative certificates which had been issued by the local planning authority. It was contended that the question whether planning permission might reasonably have been expected to be granted should be considered not as at the date of the section 22(2)(a) notice but as at a date before there had been any proposal for the strip of land to be used for a ring road. Held: The owners' appeals failed. The local planning authority must determine the question of planning permission as at the date of the notice, and in the circumstances then existing, and not by looking at events in the past. It was a question of construction after examining the meaning of the words used in section 17(4).
Lord Denning MR: "After the discussion we have had, I think the decision depends on this one short point under section 17 (4): what is the date at which it must be decided whether planning permission "might reasonably have been expected to be granted"? The Minister says it must be decided as at the date of the deemed notice to treat, that is, on September 19, 1965. At that date there was this long, narrow strip of land bordered by great housing estates on either side. At that date planning permission would not be granted for any beneficial purpose. So there should be a "nil certificate." But Wimpeys and Jelsons say that that is not that date at all. They say that the date should be some time in the distant past before there was any proposal for a ring road. At that time they might reasonably have expected planning permission to be granted, not only for the housing estates, but also for this long, narrow strip for residential development.
That issue was to be determined simply as a matter of statutory construction:
The crucial word . . . is the word "proposed," which is defined in section 22 (2): "For the purposes of sections 17 and 18 of this Act, an interest in land shall be taken to be an interest proposed to be acquired by an authority possessing compulsory purchase powers in the following (but no other) circumstances, that is to say-"
(a) (put shortly) where there is an actual notice to treat; (b) (put shortly) where there is a deemed notice to treat; (c) (put shortly) where there is an offer to negotiate to purchase.
That definition shows that the word "proposed" refers to the proposal contained in an actual or deemed notice to treat or in an offer to purchase. That gives a good clue to the date of the proposal. It is the date of the actual or deemed notice to treat or of the offer to purchase, as the case may be.
In the light of that definition, section 17 (4) means that the planning authority must form an opinion as to what planning permission might reasonably have been expected to be granted at the date of the actual notice to treat, or the deemed notice to treat, or the offer to purchase, as the case may be. In the present case, therefore, which is a case of a deemed notice to treat, subsection 17 (4) must be read:"...that might have been expected to be granted [at the date of the service of the deemed notice to treat] in respect of the land in question, if it were not proposed [at that date] to be acquired..." The planning authority must form an opinion as to what planning permission might reasonably be expected at that date, namely, September 28, 1965. It must look at the position as at that date, and see, in the circumstances then existing, whether planning permission might reasonably be expected to be granted. "
Phillimore LJ: "An important factor is that, apart from the question of construction, once you start looking back, the whole exercise becomes hopelessly uncertain. Did it all result from the designation of this strip as required for the ring road? How far was the state of the land due to the appellants' own action in building right up to the strip? Could they have avoided loss by serving notice to purchase in 1959 when the provisions of the Act of 1961 were first [enacted]? Have they really suffered any loss, or did they pay for the strip on the basis that it was blighted land? At any rate, when they acquired it they knew this to be the case. It seems to me that to look back beyond the date of the deemed notice to treat would open up a considerable filed of guesswork which would often make it impossible to give firm advice to any member of the public as to his rights. Accordingly, both as a matter of construction and on wider grounds, I would dismiss these appeals."
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