Town and Country Planning Act 1971, section 180 — Purchase notice — Appeal by Secretary of State for the Environment against a decision of Woolf J allowing an application by landowners under section 245 of the Act to quash the refusal of the Secretary of State to confirm a purchase notice on the ground that the land in question was capable of reasonably beneficial use in its existing state — The land was largely covered with hardcore, which had been laid without planning permission, but the time had passed when an enforcement notice could be served in respect of it — The only use to which the land could be put without permission was for agriculture, within the meaning of section 22(2)(e) of the Act, but the cost of removing the hardcore for this purpose would have outweighed any benefit to be derived from it — The owners made an application for permission to use the site for a haulage depot but this application was rejected — When the owners served a purchase notice under section 180 the Secretary of State refused to confirm it on the principle formulated in Purbeck District Council v Secretary of State for the Environment — Woolf J in the present case decided that the principle, which he himself had applied in the Purbeck case, should be limited to breaches of planning control against which enforcement proceedings could be brought — Held by the Court of Appeal, upholding Woolf J’s decision and quashing the Secretary of State’s order, that at the date when the purchase notice was served the land was incapable of reasonably beneficial use and that the owners were entitled to rely on its state in this respect despite previous breaches of planning control — The court also agreed with Woolf J’s opinion, although not necessary for this decision, that the position would be different if at the date of service of a
purchase notice an effective enforcement notice could still be served — Appeal dismissed
This was an
appeal by the Secretary of State for the Environment against a decision of
Woolf J, who had allowed an application by Balco Transport Services Ltd under
section 245 of the Town and Country Planning Act 1971 challenging the Secretary
of State’s refusal to confirm a purchase notice served by Balco on Maidstone
Borough Council. The site which was the subject of the proceedings was a plot
of just over an acre on the west side of George Street, Hunton, near Maidstone.
Alan Moses
(instructed by the Treasury Solicitor) appeared on behalf of the Secretary of
State; Michael Rich QC and Peter Flint (instructed by Watson Flint &
Gunter, of Chatham) represented Balco Transport Services Ltd; Maidstone Borough
Council was not represented and took no part in the proceedings.
Giving the
first judgment at the invitation of Ackner LJ, GLIDEWELL LJ said: This is an
appeal by the Secretary of State (the first respondent below) against the
decision of Woolf J given on November 2 1984 allowing an application by Balco
to quash the decision of the Secretary of State given in a letter dated May 31
1984 refusing to confirm a purchase notice served by Balco on the borough
council.
This is the
latest instalment in a series of proceedings under the Town and Country
Planning Act 1971 — applications to the borough council, appeals to the
Secretary of State, subsequent applications to the High Court and now an appeal
to the Court of Appeal — in which Balco have been involved since 1980. In order
to understand fully the point at issue here, it is desirable to set out the
relevant facts first.
The site
Balco are the
owners of a plot of land of just over one acre in extent on the west side of
George Street, Hunton, near Maidstone. The land is, or at the time of an
inquiry into the purchase notice held on February 23 1984 was, in use as a
road-haulage depot. On its western side there is a range of buildings used as a
vehicle repair shop, a store and a small office building. Most of the remainder
of the site is covered with hard standing, excluding only a small orchard at
the eastern end.
Planning
history
On July 1 1948
when the Town and Country Planning Act 1947 came into force the site, then
owned by a Mr Wilson, was in use as a road-haulage depot and had been so used
for many years. There is no suggestion that this use was in contravention of
previous planning control. Its continuation therefore did not require planning
permission, nor could an enforcement notice have been served in respect of that
use: see section 75 of the Town and Country Planning Act 1947.
That use
continued until about 1964, when Mr Wilson ceased to carry on the business.
Meanwhile, several planning permissions were granted for the erection of the
buildings to be used in connection with the haulage business. At some time
before 1964 the hardcore was laid without planning permission being sought or
granted. After 1964 the site lay unused for some years, but thereafter it was
used for several successive different purposes, without planning permission
being granted for change of use on any occasion. There were also further
periods of no use.
Balco occupied
the site as tenants in 1978, and bought it early in 1979. They started in 1978
to use it as a haulage depot and for the repair of their vehicles.
In 1979 the
borough council served on Balco two enforcement notices requiring them to
discontinue these uses. Balco appealed against both notices, and also applied
under section 94 of the 1971 Act for a certificate that the site had an
established use as a transport depot. That certificate was refused on January
25 1980, and on January 29 1980 the appeal against the enforcement notices was
heard. On March 12 1980 the inspector dismissed the appeals and upheld the
enforcement notices, holding that the use as a haulage depot had been
abandoned. Balco appealed under section 246 of the 1971 Act against that
decision, and I dismissed that appeal on June 12 1981: see [1982] JPL 177*. An
appeal against the refusal of the established use certificate was also later
dismissed.
*Editor’s
note — Reported at (1981) 260 EG 709, [1981] 2 EGLR 165.
Undeterred,
Balco applied in September 1982 for permission to continue the use of the site
as a haulage depot, appealed to the Secretary of State against the refusal of
that application, and on the dismissal of that appeal applied unsuccessfully to
Woolf J to quash that decision. Meanwhile, on May 18 1983, Balco served the
purchase notice the subject of these proceedings.
Present
situation
Balco
therefore now own a site and buildings which have no permitted or existing use
under the Town and Country Planning Acts. The only use to which the land can
lawfully be put is use for the purpose of agriculture: see section 22(2)(e) of
the 1971 Act. But the inspector at the last inquiry found that the land in its
existing state was incapable of being used for agriculture. Such use would only
be possible if the hardcore were removed. The case for the Secretary of State
is that the laying of hardcore was an engineering operation and thus was
development for which planning permission was required under the Town and
Country Planning Act. As such permission was never sought, the development was
a breach of planning control in respect of which an enforcement notice could
have been served. Even though such a notice was not served, the laying of the
hardcore was unlawful, and the development, or the cost of removing it, must be
disregarded for the purpose of deciding whether the land is capable of
reasonably beneficial use in its existing state. Without the hardcore the land
could be used for agriculture, which would be a reasonably beneficial use. Thus
the purchase notice should not be confirmed.
The inspector
who heard the inquiry into the purchase notice said this:
43 The question to be decided in the present
case is whether such a use of the site would be reasonably beneficial — and
this in turn depends upon whether or not account is taken of the cost of
restoring the site (or the major part of it) by removal of the hardstanding and
spreading of topsoil. The estimated cost of £12,000 (excluding the removal of
the buildings) was not challenged and I have no reason to doubt it. If this
cost were to be taken into account it seems to me so heavy in relation to any
possible benefits from the use of the restored land that the use could not be
said to be reasonably beneficial.
44 I have however come to the conclusion that
this cost should not be taken into account. The council’s assertion that most
of the hardstanding now on the site was laid unlawfully was not challenged even
though reasons were suggested why no great weight should be given to this fact.
It seems to me that the land has become incapable of reasonably beneficial use
solely on account of these unlawful activities (the area not covered by
hardstanding being so small as to be useless) and that the principle
established in the Purbeck case must apply — ie that the words of
section 180 of the Act exclude ‘a situation where the land has become incapable
of beneficial use because of unlawful activities on the land’. In my view the
identity of those carrying out such unlawful activities is irrelevant; the Purbeck
judgment does not exclude previous owners or tenants of the land.
45 I therefore conclude that the land is capable
of reasonably beneficial use in its existing state.
His advice was
accepted by the Secretary of State, who therefore did not confirm the purchase
notice.
The Secretary
of State’s decision was based largely on an earlier decision of Woolf J in Purbeck
District Council v Secretary of State for the Environment (1983) 46
P & CR1. In that case permission had been granted for the filling of a
former clay pit with refuse, subject to conditions controlling the method of
tipping and requiring the ultimate restoration of the site. The pit was filled
by a tenant of the landowners, who did not comply with the conditions. An
enforcement notice was served but apparently achieved no effect. After an
application for planning permission to build houses on the land was refused,
the landowner served a purchase notice under section 180 requiring the local
authority to purchase the land. On the council’s indicating its refusal to do
so, the Secretary of State decided to confirm the notice. The council applied to
quash that decision, and Woolf J granted their application.
He set out the
principles on which he reached his decision in the following passages:
However Mr
Sullivan . . . did put forward a more limited submission, and it was to the
effect that, if the existing state had been brought about because of the
unlawful activity of the landowner or those who had or had had control of the
land, that would not bring the case within the circumstances in which a notice
to purchase could be served. Put in a different way, if the landowner or the
other occupiers of the land had rendered the land incapable of reasonably
beneficial use by their conduct in breach of planning control, they could not
take advantage of their own wrong so as to foist the land on an unwilling local
authority
That the use
of land in breach of planning control is unlawful is made clear by the Court of
Appeal’s decision in LTSS Print & Supply Services Ltd v Hackney
Borough Council.
A little later
Woolf J said:
I regard the
words of section 180 as excluding a situation where the land has become
incapable of beneficial use because of unlawful activities on the land. When I
use the word ‘unlawful’ I am using it in a planning context and contemplate
uses that are in breach of planning control.
In his judgment
in the present case, Woolf J concluded that the principle of his decision in
the Purbeck case should be limited. He said:
I would still
take the view that the principle which I laid down in the Purbeck case should
be limited, and limited only so far as necessary to fit in with the code
contained in the 1971 Act. That code itself lays down limitations on the
situations where breaches of planning control can be enforced, the intent of
Parliament clearly being that where an owner or occupier of land where there
has been a planning control is no longer the subject of enforcement action he
should be entitled to continue a particular activity or make use of a state of
affairs on the land notwithstanding that there has been a breach of planning
control. That may not make what has occurred lawful, as was made clear by the LTSS
case [1976] 2 WLR 253, but it does mean that the owner or occupier can benefit
from what has occurred, and that being so, it is not inconsistent with the code
of legislation that an unlawful activity which has occurred on the land should
be relied on for the purpose of establishing that the land is incapable of
beneficial use for the purpose of section 180 if it can no longer be enforced
against. If the planning authority could enforce against the hardcore here, and
require it to be removed, then it would be only right that the approach of the
inspector should be upheld, and the cost of removing the hardcore or
hardstanding which the planning authority could require to be removed should not
be taken into account in considering the beneficial use of the land. Where,
however, no action could be taken, then the position in my view is different,
and I can see every reason for saying that the code does not require the cost
of removal of the hardstanding to be ignored in deciding whether or not the
land can be used beneficially. This qualification to the principle I enunciated
in Purbeck was not considered by the inspector for the very good reason
that it was not argued before him, and if it had been considered, it seems to
me that he could well, if not necessarily, have come to a different view on the
question of beneficial use.
That being
so, I consider this application should be quashed so that the matter can go
back to the Secretary of State for the issues to be reconsidered in the light
of this judgment . . . .
Legislation
Before coming
to the rival contentions of the parties to this appeal, it is necessary to
remind oneself of the wording of the relevant parts of the legislation. The
Town and Country Planning Act currently in force is the Act of 1971, as amended
by the Local Government and Planning (Amendment) Act 1981.
The purchase
notice in dispute was served under section 180 of the Act. Section 180(1)
reads:
180 — (1)
Where, on an application for planning permission to develop any land,
permission is refused or is granted subject to conditions, then if any owner of
the land claims —
(a) that the land has become incapable of
reasonably beneficial use in its existing state; and
(b) in a case where planning permission was
granted subject to conditions, that the land cannot be rendered capable of
reasonably beneficial use by the carrying out of the permitted development in
accordance with those conditions; and
(c) in any case, that the land cannot be rendered
capable of reasonably beneficial use by the carrying out of any other
development for which planning permission has been granted or for which the
local planning authority or the Secretary of State has undertaken to grant
planning permission,
he may,
within the time and in the manner prescribed by regulations under this Act,
serve on the council of the . . . London borough or county district in which
the land is situated a notice requiring that council to purchase his interest
in the land in accordance with the following provisions of this Part of this
Act.
Subsections (2)
to (6) are not relevant in the present case.
Section 180(7)
provides:
(7) A notice under this section, or any other
provision of this Part of this Act to which this subsection is applied, is in
this Act referred to as a ‘purchase notice’.
When a purchase
notice has been served, the council on whom it is served are required by
section 181 within three months to serve on the landowner a counternotice
stating either that they are willing, or that some other local authority or
statutory undertakers have agreed, to comply with the notice or that they are
not willing to comply. In the latter case the council must set out in the
counternotice the reasons for their unwillingness and serve a copy of the
purchase notice with their reasons for refusal on the Secretary of State
(section 181). The Secretary of State must then arrive at a preliminary
decision whether or not to confirm the purchase notice and inform both parties
of that intended decision. Either party may then require a hearing (section
182). After the hearing, the Secretary of State, if satisfied that the
conditions in section 180(1) are fulfilled, shall confirm the notice, or he may
in lieu grant planning permission for the development the refusal of which led
to the service of the notice or for any other suitable development (section
183). Otherwise he does not confirm the notice.
If the council
are willing to accept the purchase notice, or if the Secretary of State
confirms it, the council are then deemed to be authorised to acquire the land
compulsorily (section 186), with the procedures appropriate to such an
acquisition for the assessment of compensation, subject to qualifications under
section 187 which are not relevant in this case.
It is also
necessary to consider briefly the provisions in the Act for the enforcement of
planning control. These are contained in section 87. This provides that if
after the end of 1963 development for which planning permission was required
under the Act was carried out without such permission being obtained, or if any
conditions on a permission for development have not been complied with, the
local planning authority, ‘if they consider it expedient to do so having regard
to the provisions of the development plan and to any other material
considerations’, may issue an enforcement notice requiring the breach to be
remedied (section 87(1), (2) and (3)). However, in addition to the section not
applying to any development before 1964, section 87(4) provides:
An enforcement
notice which relates to a breach of planning control consisting in —
(a) the carrying out without planning permission
of building, engineering, mining or other operations in, on, over or under land
. . . .
may be issued
only within the period of 4 years from the date of the breach.
Section 87(5)
deals with service of the notice. The section then provides:
(6) An enforcement notice shall specify the
matters alleged to constitute a breach of planning control.
(7) An enforcement notice shall also specify —
(a) any steps which are required by the authority
to be taken in order to remedy the breach;
(b) any such steps as are referred to in
subsection (10) of this section and are required by the authority to be taken.
By section
87(9):
In this
section, ‘steps to be taken in order to remedy the breach’ means . . . steps
for the purpose:
(a) of restoring the land to its condition before
the development took place . . . including. . . . —
(iii) the carrying out on land of any building or
other operations.
By section
87(10):
The steps
mentioned in subsection 7(b) of this section are steps for the purpose . . .
(b) of removing or alleviating any injury to
amenity which has been caused by the development.
Section 88
provides a right of appeal to the Secretary of State against an enforcement
notice. If there is no appeal, or if an appeal fails, the notice will take
effect. Failure to comply with its requirements renders the landowner liable to
prosecution for an offence under section 89.
Section 91
provides the council with an alternative remedy for noncompliance with an
enforcement notice. By section 91(1):
91-(1) If,
within the period specified in an enforcement notice for compliance therewith,
or within such extended period as the local planning authority may allow, any
steps [which by virtue of section 87(7)(a) of this Act are] required by the
notice to be taken (other than the discontinuance of a use of land) have not
been taken, the local planning authority may enter the land and take those
steps, and may recover from the person who is then the owner of the land any
expenses reasonably incurred by them in doing so.
Section 91(2)
in part provides:
. . . any
sums paid by the owner of any land under subsection (1) of this section in
respect of expenses incurred by the local planning authority in taking steps
required by such a notice to be taken, shall be deemed to be incurred or paid
for the use and at the request of the person by whom the breach of planning
control was committed.
If the
hardcore at Balco’s site had been laid less than four years before the date on
which the purchase notice was served (May 18 1983) the district council could
have issued and served on Balco as landowners an enforcement notice requiring
them to remove the hardcore so as to restore the land to its condition before
the hardcore was laid and to remove any injury to amenity. Failure to comply
with
removed the hardcore themselves and recovered the cost of removal from Balco.
Since,
however, the hardcore was laid more than four years before the date on which
the purchase notice was served, and may have been laid before 1964, the council
in May 1983 no longer had the power to issue or serve a valid enforcement
notice.
The argument
in this case also involves consideration of section 23 (9) of the Act, which
provides:
(9) Where an enforcement notice has been [issued]
in respect of any development of land, planning permission is not required for
the use of that land for the purpose for which (in accordance with the
provisions of this Part of this Act) it could lawfully have been used if that
development had not been carried out.
Submissions
Mr Moses for
the Secretary of State submits that when land has become incapable of
reasonably beneficial use by reason of some unlawful development, that
development must be disregarded for the purposes of section 180 of the Act;
thus in such a case a purchase notice may not be served. Mr Rich, for Balco,
argues to the contrary, that there is nothing in the wording of section 180
which justifies the introduction of such a limitation. The sole question is
whether, at the time when the purchase notice is served, the land is ‘incapable
of reasonably beneficial use in its existing state’. If the land is not then
capable of reasonably beneficial use, it is irrelevant to inquire why or how that
has come about. Alternatively, Mr Rich submits that if section 180 is to be
read subject to any limitation, that should go no further than the principle
set out by Woolf J in the present case, ie that if land has become incapable of
reasonably beneficial use by reason of development in breach of planning
control which could, at the time when the purchase notice is served, be the
subject of an effective enforcement notice, such development should be
disregarded for the purposes of section 180.
Both counsel
rely on a passage in the speech of Lord Scarman in Pioneer Aggregates (UK)
Ltd v Secretary of State for the Environment [1985] AC 132 at p140:
Planning
control is the creature of statute. It is an imposition in the public interest
of restrictions upon private rights of ownership of land. The public character
of the law relating to planning control has been recognised by the House in Newbury
District Council v Secretary of State for the Environment [1981] AC
578. It is a field of law in which the courts should not introduce principles
or rules derived from private law unless it be expressly authorised by
Parliament or necessary in order to give effect to the purpose of the
legislation. The planning law, though a comprehensive code imposed in the
public interest, is, of course, based on the land law. Where the code is silent
or ambiguous, resort to the principles of the private law (especially property
and contract law) may be necessary so that the courts may resolve difficulties
by application of common law or equitable principles. But such cases will be
exceptional. And, if the statute law covers the situation, it will be an
impermissible exercise of the judicial function to go beyond the statutory
provision by applying such principles merely because they may appear to achieve
a fairer solution to the problem being considered. As ever in the field of
statute law it is the duty of the courts to give effect to the intention of
Parliament as evinced by the statute, or statutory code, considered as a whole.
The reference
by the inspector in his report to the laying of the hardcore being ‘unlawful’,
which is the basis of Mr Moses’ argument before this court, is based upon the
decision of this court in LTSS Print & Supply Services Ltd v Hackney
London Borough Council [1976] QB 663. In that case premises were used as a
wholesale warehouse from a date before the end of 1963 until at least 1969. No
planning permission had been granted for that use, but it was an established
use within section 94 of the 1971 Act (having begun before the end of 1963) and
thus could not be the subject of an enforcement notice. By 1971 the premises
were used for displaying furniture for retail sale to the public, again without
planning permission. In December 1972 the planning authority served an
enforcement notice requiring the retail sales use to cease. On appeal to the
Secretary of State, the owners of the premises claimed that, if they must
discontinue the retail sales use, they were entitled by section 23 (9) to
revert to the use as a wholesale warehouse, being the use ‘for which . . . it
could lawfully have been used’ if the change of use to retail sales had not
been carried out. The Secretary of State upheld the notice, but the Divisional
Court on appeal set it aside. On appeal to this court, it was held that the
established use of the land as a wholesale warehouse not being the subject of
planning permission, it was not a lawful use within section 23(9) and thus not
a use to which the owners were entitled to revert. Cairns LJ, who gave the
leading judgment, said at pp671-672:
Now there is
nothing in Part III of the Act which in terms prohibits the continuance of a
use. What is provided by sections 22(1) and 23(1), which are the first two
sections of Part III, is that, in general, planning permission is required for
a change of use. So if a change of use for which planning permission is
required is made without planning permission it is an unlawful change of use.
Is continuance of a use so unlawfully begun nevertheless lawful in accordance
with the provisions of Part III? In my
judgment, it is not.
If a state of
affairs or an activity has been initiated by infringing statutory provisions,
then I do not consider that it can ever be said to be lawful in accordance with
the provisions unless something has supervened to make it lawful. Mere immunity
from process does not make it lawful. This view accords with the decision of
the Court of Appeal and the House of Lords in a case in a very different field
from planning, namely, R v Governor of Pentonville Prison, ex parte
Azam [1974] AC 18, where it was held that an illegal immigrant into the the
United Kingdom was still an illegal entrant, although owing to the lapse of
time he could no longer be prosecuted for his illegal entry.
Lawton and
Goff LJJ agreed.
Section 23(9)
is, of course, concerned only with reversion to a lawful use, not with
development by the carrying out of an operation. In the present case the
Secretary of State has held that to lay hardcore without planning permission is
an ‘unlawful activity’, in the words of Cairns LJ. Assuming that this is
correct, the question is, has it any relevance to section 180?
Mr Moses
accepts that there is no qualification in the wording of section 180(1) which
would require ‘unlawful’ operational development not to be taken into account,
but he argues that this is consistent with the policy of the Act, which is
designed to regulate the use of land in the public interest. Thus, he submits,
the principle set out by Woolf J in Purbeck complies with the dictum of
Lord Scarman in Pioneer Aggregates. He refers us in particular to the
passage in Purbeck at p7, where Woolf J said:
. . . if the
landowner or the owner-occupier of the land had rendered the land incapable of
reasonably beneficial use by their conduct in breach of planning control, they
could not take advantage of their own wrong so as to foist the land on an
unwilling local authority.
In my judgment,
the maxim that a man cannot take advantage of his own wrong has no application
to the question whether land has become incapable of reasonably beneficial use
in its existing state. Take the facts of the present case. There is no evidence
to show why the local authority did not serve an enforcement notice in time in
respect of the laying of the hardcore, but there may be several possible
reasons. One is that they did not know that the development had taken place;
another, that it did not occur either to Mr Wilson or to the local authority at
that time that laying some hardcore was development; a third possibility was
that the local authority did know of the hardcore but did not object to it or
would have been willing to grant planning permission for it if asked. I am
inclined to think that this last is the most probable reason. Mr Wilson was
entitled lawfully to continue to use the land as a road-haulage depot; no doubt
taking that into account, the local authority granted him planning permission
to erect the buildings; they would probably also have permitted the laying of
the hardcore.
Moreover, the
laying of the hardcore gave some added value to the land for use as a haulage
depot, or indeed for other uses. After four years had passed, and no
enforcement notice had been served, Mr Wilson was not only immune from
enforcement — he also was entitled in law to that added value, and to be paid
that value as part of the sale price when he sold the land. Balco may well have
paid for that added value as part of their purchase price. They are not, in my
view, taking advantage of their own wrong when they assert that the existing
state of the land is its state with the hardcore as it exists.
In my view, it
is not necessary in order to give effect to the purpose of the legislation to
introduce into section 180(1) the qualification for which Mr Moses argues. I
disagree with Woolf J when he said in Purbeck:
I regard the
words of section 180 as excluding a situation where the land has become
incapable of reasonably beneficial use because of unlawful activities on the
land.
In the present
case the learned judge himself said that the principle was there stated too
widely. I would therefore hold that the submissions made on behalf of the
Secretary of State are not correct.
There remains
the question whether the words of section 180(1) are to be read without any
qualification, which is the primary submission of Mr Rich, or whether Woolf J
was correct in holding that there is a qualification of section 180 when the
development which has resulted in the land in its existing state being
incapable of reasonably
It is not
strictly necessary to decide this question in order to decide the present
appeal, but we have heard substantial submissions about it, and I think it
desirable to express my view. It is that in the present case the learned judge
gave the right answer.
Suppose that
in the present case the hardcore had been laid, not back in the 1960s, but by
Balco themselves, less than four years before the purchase notice was served.
The council could then have served an enforcement notice requiring the removal
of the hardcore for the purpose of restoring the land to its condition before
the development took place. If Balco complied with such an enforcement notice,
there would be no question for this court to decide. But what if Balco had
appealed against the enforcement notice, so that, though in fact valid, it was
not in force when the purchase notice was served? Or suppose that the purchase notice was
served first, though a valid enforcement notice could be served on the
following day. As a matter of statutory construction, I would hold that the
words of section 180(1) must be read subject to those of section 87 of the Act.
Thus if by the service of an enforcement notice the council could require the
landowner at his expense to put the land in a state in which it would be
capable of reasonably beneficial use, the landowner in my judgment could not be
heard to say that the land in its existing state was incapable of such a use.
The same
position can be reached slightly more circuitously, but by direct reference to
the statute. When the purchase notice was served, the council could indicate
their readiness to undertake to grant permission for the removal of the
hardcore, an engineering operation which would render the land capable of
reasonably beneficial use — section 180(1)(c). Balco would no doubt say that
the cost of carrying out the development exceeded the value of the land
afterwards, and thus they would not carry it out. The council could then
require them to carry out that development by serving an enforcement notice and
requiring them in the notice to remove the hardcore.
I should say
that, in support of his submission that the words of section 180 should not be
subject to any qualification, Mr Rich gave us a detailed explanation of the
history and interrelationship of various parts of the Planning Acts, other than
those to which I have referred, from 1947 onwards. I hope he will forgive me if
I say that I did not myself find this greatly assisted me in the proper
interpretation of section 180(1).
I would
therefore hold that if at the time when a purchase notice is served
(i) the land to which it relates is in a state
which has been caused by development carried out without planning permission;
(ii) a valid enforcement notice in respect of that
development either has already been served or could be served;
(iii) such an enforcement notice could require the
owner or occupier to take steps to restore his land to its condition before the
development took place; and
(iv) in such a condition the land would be capable
of reasonably beneficial use,
then the
conditions for the service of a purchase notice under section 180 of the Act
would not be fulfilled, and if such a notice were served it should not be
confirmed.
The facts of
the present case do not come within the principle I have sought to formulate
above. For the reasons I have set out, I agree with the decision of Woolf J and
I would dismiss the appeal.
It was,
however, pointed out to us that the order made by the learned judge needs
amendment. There is no power, where the Secretary of State has refused to
confirm a purchase notice, to remit the matter to him: see section 186(4). The
order should simply be that the Secretary of State’s decision is quashed.
ACKNER and
SLADE LJJ agreed and had nothing to add.
The appeal
was dismissed with costs.
