Town and Country Planning Act 1971–Planning authority’s appeal against judge’s refusal of interlocutory injunction–Section 52 agreement between owner of land containing stone mine, company lessee operating mine and planning authority–Temporary planning permission had been given to operate mine, but agreement provided that the operations should cease after a specified date unless further planning permission was obtained and all the necessary steps were taken to construct a new access road to the mine–Company continued to work the mine after the specified date, took no steps to obtain further planning permission and did not construct new access road–Planning authority brought action against company to restrain further use of the mine for new operations and the present summons was issued for an interlocutory injunction–Judge refused interlocutory injunction on the grounds, inter alia, that the application was premature as the planning authority had not exhausted its ordinary statutory remedies such as the enforcement procedure under the 1971 Act, and that the balance of convenience was against the grant of an interlocutory injunction–Held by Court of Appeal that the present case was concerned with a breach of contract and that there was nothing in section 52 to indicate that the ordinary civil remedies for a breach were not available–Held also, in relation to the guidance in the American Cyanamid case and the balance of convenience, that there was here a clear, indeed a flagrant, breach of contract for which damages were in the circumstances neither an adequate nor an appropriate remedy–There was no reason to allow the matter to drift on while the company delayed appealing against refusal of permission to continue mining operations or until an appeal against an enforcement notice was determined–Appeal allowed and injunction granted until trial
This was an
appeal against the refusal of Judge Fallon QC to grant an interlocutory
injunction to Avon County Council in an action brought by the council against
Maurice Millard and the Bath Stone Co Ltd, the first and second defendants in
the action, the latter being the respondents to this appeal. The mine which
gave rise to the proceedings was called Hayes Wood and was situated on the
first respondent’s land at Limpley Stoke in the County of Avon.
W D R Spens
(instructed by Basil D Smith, director of administration, Avon County Council)
appeared on behalf of the appellant authority; Donald Hawkins (instructed by
Awdry, Wyles & Bailey, of Devizes) represented the respondent Bath Stone Co
Ltd.
Giving
judgment, FOX LJ said: This is an appeal from a decision of Judge Fallon QC,
sitting as a High Court judge, who refused an interlocutory injunction. The
first defendant is the owner of land at Limpley Stoke, in Avon, upon which is a
mine called Hayes Wood. The mine contains good-quality Bath stone. On March 23
1982 the second defendant, which I will call ‘the company’, took a lease of the
mine from the first defendant and started to work it. Planning permission was
necessary for the working of the mine and that was obtained. The local planning
authority principally concerned was the plaintiff, the County Council of Avon.
At the same time as planning permission was granted, an agreement under seal
was entered into between Avon, the first defendant and the company. That
agreement is dated March 23 1982 and was entered into by Avon under the
provisions of section 52 of the Town and Country Planning Act 1971.
Section 52,
subsections (1) and (2) are in the following terms:
(1) A local
planning authority may enter into an agreement with any person interested in
land in their area for the purpose of restricting or regulating the development
or use of the land, either permanently or during such period as
incidental and consequential provisions (including provisions of a financial
character) as appear to the local planning authority to be necessary or
expedient for the purposes of the agreement.
(2) An
agreement made under this section with any person interested in land may be
enforced by the local planning authority against persons deriving title under
that person in respect of that land, as if the local planning authority were
possessed of adjacent land and as if the agreement had been expressed to be
made for the benefit of such land.
The recitals
to the agreement of 1982 read as follows:
(1) The owner
that is, the
first defendant
is seised in
fee simple in possession of land at Limpley Stoke in the County of Avon which is
shown edged red on the plan annexed hereto.
(2) The owner
with the assistance and on behalf of the tenant
that is, the
company
has applied to
Avon for planning permission to extract stone from and carry out ancillary
operations at the mine known as the Hayes Wood Stone Mine which is located on
or under the said land and is shown with its associated stacking area coloured
pink and hatched black on the said plan . . .
(3) The owner
has by a deed of even date entered into a Lease of (inter alia) the mine
to the tenant.
(4) Avon is
the local planning authority and is concerned that the development of the mine
should be carried out in such a manner as not to cause unacceptable damage to
local amenity and road safety.
Coming to the
operative parts, clause (1) states that the agreement is made under section 52
of the Town and Country Planning Act 1971 and certain other enactments which I
need not specify. Then clause (2) reads:
This
Agreement is conditional upon the grant of planning permission for the
development of the mine upon application number WB8964.
That
permission was given.
(3) The owner
for himself and those claiming title by or through him (but not so that he
shall be liable for the actions of others over whom he has no control and in
particular so that he shall not be liable for any action of or breach by the
Tenant who will be in exclusive possession of the mine under the terms of the
Lease) hereby covenants with Avon and the tenant as a separate covenant hereby
covenants for the tenant and those claiming title by or through the tenant or
as assignees of the Lease hereby covenants (sic) with Avon as follows.
(a) that they will comply or secure compliance
with the conditions of the grant of planning permission which are set out in
the schedule to this Agreement.
(b) that they will not without the prior written
consent of the County Planning Officer use or cause or permit to be used any
motor vehicle exceeding a maximum length
which is
specified. I go to (d), which is in these terms:
that unless
by the date specified below they have obtained a further planning permission
for the use of the mine they will cease to use or cause or permit the use of
the mine for the extraction of stone and operations ancillary thereto on the
day upon which expires the permission granted on even date herewith under
application number WB8964 that is to say on the 22nd day of March one thousand
nine hundred and eighty-four (hereinafter called ‘the specified date’).
(e) (i) that in the event
that the owner or tenant should wish to continue the use for which the said
permission is granted after the specified date they or either of them shall
acquire all the necessary consents (including planning permission) and take all
other necessary steps to provide and construct at the owner’s or the tenant’s
own expense a new access to the mine from that part of the A36 trunk road which
is fronted by land under the owner’s or the tenant’s control.
(ii) any new access to the
mine provided under this sub clause shall be in a place and to a standard of
design and construction which satisfies both Avon and the Secretary of State
for Transport for the time being and on this question the decision of the
Secretary of State shall be final.
(iii) any new access provided
as aforesaid shall be completed and available for use (if then required) on the
day next following the specified date but if the specified date has passed then
such new access shall be so available before the commencement of any new mining
operations.
(f) that they will with effect from the
specified date
(i) surrender all rights of
vehicular access from and to the mine via Midford Lane for any purpose
connected with the commercial removal haulage of distribution of stone
extracted from the mine
(ii) to carry out such
reasonable works as may be required by the County Engineer and Surveyor to
prevent such vehicular access as aforesaid from and to the mine from Midford
Lane and vice versa and
(iii) that they will seek no
compensation from Avon in respect of any loss they may suffer as a result of
such closure as aforesaid.
It will be
evident from those provisions that the council was, among other things,
concerned about the adequacy of road access.
The company
has worked the mine since the grant of planning permission in 1982. The
specified date arrived on March 22 1984, but the company, despite the
provisions of the agreement, did not cease to work the mine, did not obtain
planning permission to continue working it, and did not construct a new access to
the mine from the A36. Nor has the company yet done any of those things. Avon
in those circumstances instituted and pursue the present action against the
company for an injunction restraining it from continuing or permitting the use
of the mine for mining operations or operations ancillary thereto.
A summons was
subsequently issued for the interlocutory injunction which is now sought. At
that point it would, I think, be convenient if I set out a list of certain
material dates: the specified date was March 22 1984; the writ was June 8 1984;
the summons for the interlocutory injunction was June 14; Avon issued an
enforcement notice on July 15; the application for an interlocutory injunction
came on for the first time and was adjourned for further evidence on June 29;
the substantive hearing of the summons for an interlocutory injunction was on
July 18; an application was made to Avon by the company for planning permission
to continue mining on the land on June 27; that application for planning
permission was refused on October 23. There was also an application for
planning permission to the West Wiltshire Council, who are also concerned, and
that was refused at, I think, about the same date as the application to Avon
was refused. There has been no appeal as yet against either of those
determinations refusing planning permission.
The judge
refused to grant an interlocutory injunction and, put shortly, he was of the
opinion (1) that, where a local authority has a statutory remedy (in this case
by the enforcement notice procedure), before the authority can be granted an
interlocutory injunction they must have attempted fully to pursue that remedy;
(2) that this was not a commercial contract and the company had endeavoured to
find a solution of the problem; (3) that the grant of the injunction would
abridge the time-scale laid down by statute in relation to enforcement of the
planning law; (4) that the balance of convenience was against the grant of an
injunction.
I will deal,
first, with the contention that it is premature for the council to seek relief
by way of injunction because it has not exhausted the enforcement procedure.
That is the only defence pleaded in the action and was the first argument
advanced to us by Mr Hawkins for the company in support of the judge’s
decision. In my view the contention is not well founded. We were referred to
the decision in Stafford Borough Council v Elkenford Ltd [1977] 1
WLR 324, and in particular to some observations of Bridge LJ at p 330, where he
said:
We have been
urged to say that the court will only exercise its discretion to restrain by
injunction the commission of offences in breach of statutory prohibitions if
the plaintiff authority has first shown that it has exhausted the possibility
of restraining those breaches by the exercise of the statutory remedies.
Ordinarily no doubt that is a very salutary approach to the question, but it is
not in my judgment an inflexible rule. The reason why it is ordinarily proper
to ask whether the authority seeking the injunction has first exhausted the
statutory remedies is because in the ordinary case it is only because those
remedies have been invoked and have proved inadequate that one can draw the
inference, which is the essential foundation for the exercise of the court’s
discretion to grant an injunction, that the offender is, in the language of
Oliver J, ‘deliberately and flagrantly flouting the law.’
The Elkenford
case was dealing, as it seems to me, with a quite different situation. It was
concerned with Sunday trading in breach of the Shops Act, where for a statutory
offence the statute imposed–inadequately as it turned out–certain penalties. It
was in that context of statutory penalties for statutory offences that Bridge
LJ made his general observations. But the present case is concerned with breach
of contract. Parliament, by section 52, gave power to local authorities to
enter into such a contract as this. There is nothing in section 52 which
indicates that ordinary civil remedies for breach of such contract were not to
be available; indeed, subsection (2) suggests that they were. Since the local
authority will not normally suffer damage and is normally not in search of
damages as a remedy, injunction will normally be the only appropriate remedy
under the contract. In my view, therefore, the contention that the council is
acting prematurely is wrong in law, and I think that the judge misdirected
himself in accepting it. In view of that misdirection, I think that the matter
is at large before us, notwithstanding that the grant of an injunction was, if
there were no misdirection, for the
I should add
that the argument based on the proposition that to grant an injunction was
interfering with the statutory provisions by abridging the statutory time-limit
or time-limits is open to the same objections as those which I have stated. We
are concerned with contractual remedies.
I come then to
the application of the principles in the American Cyanamid case.* First,
there is an issue to be tried, so far as the council’s claim is concerned, in
that the council sue in respect of a clear breach of contract. Second, one has
to ask: Would damages be an adequate remedy for the council? In my view they
would not. The council is in no way concerned to recover damages, which indeed
are quite inappropriate to the case. What the council requires is not damages,
but that the provisions of the agreement should be complied with. Third, would
damages be an adequate remedy for the company? As the matter stands, it seems
to me that the company does not demonstrate that it will suffer any recoverable
damage at all. The company is in plain breach of its covenant and, it seems to
me, has no answer to an injunction at the trial under the Doherty v Allman**
principles. As matters stand, therefore, it would not recover on the
cross-undertaking in damages if an interlocutory injunction is granted. But it
is said that that situation may change. It is said that between now and the
trial the company may get planning permission to enable it to conduct its
operations. That might have the result that the judge at the trial might
conclude that it was proper to refuse an injunction in the exercise of his
discretion in all the circumstances of the case. That is true, but it would be
the consequence of a total change of circumstances, and I do not think that
consequent damage would be within the implied undertaking in damages.
*American
Cyanamid Co v Ethicon Ltd [1975] AC 396.
**(1878) 3
App Cas 709.
It seems to me
that the answer to the argument based upon the contention that the company
might obtain planning permission between now and the trial–which might alter
everything–is that, it an interlocutory injunction is granted and then some
relevant planning permission is granted before the trial, the company’s remedy
is to apply to discharge or vary the injunction. As matters stand at the
moment, as I say, the company does not in my view demonstrate that it is going
to suffer recoverable damage at all. The result is that it does not seem to me
that the company has established that it is put at risk as to damage.
I turn to the
general balance of convenience. The position as to that seems to me to be as
follows. It is quite true that an injunction will bring the mining activities
of the company at the mine to a stop, and that of course is a serious matter
for the company and its employees. But by the 1982 agreement the company
entered into a clear covenant (which it is not suggested is in any way invalid)
to deal with a specific situation, namely, the working of the mine after the
specified date. It did so of its own volition because it got the advantage of
planning permission for two years. The company is now acting in complete breach
of that agreement. I do not think it matters much whether one attaches the word
‘flagrant’, but in fact I think it is a flagrant breach of the agreement.
It seems to me
to be no answer to say that an injunction will put the company out of business.
The fact is that the company itself chose to contract not to carry on that
business, and it was always obvious that under the provisions of the agreement
it would have to cease the business after the specified date unless it complied
with the provisions of the contract, which it has not done.
So far as the
council is concerned, it entered into the agreement for what it regarded as
valid planning reasons relating in particular to traffic and access aspects,
and for myself I see no reason to assume that those reasons are unjustified. I
appreciate that it is traffic considerations which are the primary concern of
the council, but it made its requirements perfectly clear in the agreement. The
company accepted them but has now declined to comply. It is no doubt true that
the company has made various efforts in regard to resolving the access problem,
but it has not succeeded in doing so, and to say that the company has acted
reasonably and that an injunction should therefore be refused is in my view
unjustified in the circumstances of the case. I do not think the company has
acted reasonably; in fact it has simply acted in breach of covenants entered
into to deal with this precise situation.
I see no
reason for any criticism of the plaintiffs. I do not think they are acting
unreasonably in requiring the company to comply with its own specific
undertakings, which the council regarded, and regards, as desirable in planning
interests. I can see no reason for allowing the matter to drift on while the
company seeks planning permission or until the appeal against the enforcement
notice has been determined. The company, it will be observed, has not yet even
appealed against the refusals of planning permission, and, so far as the
enforcement notice is concerned, a successful outcome in respect of the appeal
on that would not resolve the matter, because it is not simply the Avon
authority that is concerned with planning aspects; West Wiltshire are concerned
as well.
Looking at the
whole matter, I conclude that the balance of convenience is decidedly in favour
of enforcing a clear covenant which the company is clearly breaking. I would
therefore allow the appeal and grant an injunction until trial or further
order.
Agreeing,
DILLON LJ said: In forming a view that the council was, as a matter of law,
precluded from enforcing the section 52 agreement until it had fully pursued
the statutory procedures by enforcement notice and appeal under sections 87 and
88 of the 1971 Act, the learned judge in my view misdirected himself, and the
misdirection was fundamental to his decision, not least in that he supposed
that there was a defence to this action, whereas, as I see it, there is none.
Beyond that, however, it seems to me that he misdirected himself in a further
respect. His attention was drawn to Lord Cairns’ well-known statement of the
law in Doherty v Allman, and he accepted Mr Hawkins’ submission
that in the present case there were special circumstances which justified not
giving effect to the law as stated by Lord Cairns. He seems also to have
accepted Mr Hawkins’ submission of what those special circumstances were. One
of those listed by Mr Hawkins was, by way of assertion, that his clients, the
company, had done their best to make suitable provisions to satisfy the local
authority about access, and indeed, as the judge puts it, were now within an
ace of success. That is very far from being a correct summary of the situation.
The company
has made no attempt at all, notwithstanding that the landowner, the first
defendant, is one of its directors, to provide the direct access to the A36
envisaged by the agreement. It has sought to provide an improvement to the
access by Midford Lane which was to be given up under the agreement. It has
made planning applications for permission to continue mining with that form of
improved access, but those applications have been rejected, both by the Avon
County Council and by the West Wiltshire Council. As matters at present stand,
there is no appeal against either of those rejections. The only planning matter
currently alive is the appeal against the enforcement notice made by the Avon
Council. The public inquiry in relation to that does not fall to be heard until
May of this year, and that cannot resolve the access problem, because the
Midford Lane access point is within the area of the Wiltshire Council and the
Wiltshire Council is not a party to the appeal. Moreover, the evidence before
us makes it plain that the company has rejected a proposal by the Avon Council
that the company should expedite appeals, if it is minded to appeal, against
the planning refusals and have those consolidated with the hearing of the
appeal against the enforcement notice, so that all matters could be dealt with
effectively by one appeal hearing.
In these
circumstances it is for this court to form its own view on the exercise of the
powers of the court in the light of the American Cyanamid case, and I
entirely agree with all that my lord has said on that. I agree that this appeal
should be allowed.
The appeal
was allowed and an interlocutory injunction granted, suspended for 28 days,
against second defendants (respondents). The appellants were awarded the costs
of the Court of Appeal proceedings, the costs below to be costs in the cause.
Leave to appeal to House of Lords, and a stay pending petition for leave to
appeal, were refused.